The discretionary nature of declaratory relief under S.34 of the Specific Relief Act and the inapplicability of the bar under O.II, R.2, C.P.C. when the cause of action for the previous suit does not form the foundation of the subsequent suit and the relief could not have been claimed on the cause of action alleged in the previous suit.

The three points raised in this second appeal by defendants 2 and 3 and the legal representatives of deceased first defendant are whether the decree of the appellate Court is liable to be reversed and the suit dismissed for the reasons that the suit is barred under O.II, R.2 of the Civil P.C. and S.34 of the Specific Relief Act and the title of the plaintiffs is lost by adverse possession and if not whether the appellants are entitled to claim and get value of improvements.

2. The three items in the plaint schedule belonged to deceased Raman Kunhan. Third plaintiff and third defendant are his sisters and defendants 1 and 2 are their brothers. They had also a brother Krishnan who died unmarried and issueless. Plaintiffs 1 and 2 are the children of third plaintiff. On 26-3-1963, Kunhan settled the suit properties in favour of plaintiffs and Krishnan by Ext. B1 reserving life estate with him. Kunhan died on 10-2-1970. Before that, on 3-6-1964, he cancelled Ext. B1 by executing Ext. B2. Then on 4-81966, he sold Item No. 1 to one Sankara Pillai under Ext. B3. The assignee in turn sold Item No. 1 to third defendant under Ext. B4 on 22-12-1969.

3. On 8-4-1970, plaintiffs filed O.S.No. 57 of 1970 against the defendants for declaration of title and injunction regarding these three items. Defendants claimed title and possession in themselves and supported Exts.B2 to B4 on the ground that Ext.B1 is only a will. Trial Court decreed the suit in its entirety. Appellate Court remanded the suit after confirming the decree in respect of declaration of title. In C.M. Appeal, this Court set aside the remand order and disposed of the suit finally by confirming the decree regarding declaration of title and dismissing the suit in other respects on the ground that defendants are in possession. Receiver in possession of the properties was directed to hand over possession and income to the defendants.

4. Present suit is for recovery of possession on the strength of title and for getting the profits collected by the receiver. They also wanted the receiver to hand over possession to them and not to the defendants. Defendants pleaded bar under O.II, R.2 of the Civil P.C. and S.34 of the Specific Relief Act as well as adverse possession. In the alternative, they claimed value of improvements. Trial Court dismissed the suit as against Item No. 1 and decreed it in other respects. Both sides filed appeals. Appellate Court dismissed the appeal filed by the defendants and allowed the other appeal. The suit was thus decreed on the whole. Claim for value of improvements was also refused. Even then, third defendant was given a charge over Item No. 1 for Rs. 2,000/-.

5. I fail to understand how there can be a bar under S.34 of the Specific Relief Act so far as the present suit is concerned. The Court is entitled in its discretion to grant a declaratory relief even without the plaintiff asking for any further relief. The bar is only under the proviso to S.34. That is against granting the declaratory relief when the plaintiff, who is able to seek further relief than a mere declaration of title, omits to do so. The language of the section is very clear that the declaratory relief is purely discretionary. The proviso is also clear. The proviso only enjoins that the result of the plaintiff being able to seek further relief omitting to do so is only that the Court shall not grant the declaratory relief. Here, in the previous suit, the declaration was granted even without a prayer for recovery of possession in spite of the refusal of the prayer for injunction on the ground that the plaintiffs were out of possession. The bar under S.34, if at all, could have applied only to the suit in which further relief was not claimed and not to a future suit in which it was claimed on the ground that further relief was not claimed in a previous suit.

6. The plea of adverse possession also cannot stand for reasons more than one. The final decision of this Court rendered in the