A party not involved in previous proceedings cannot be bound by collusive decrees and may seek declarations of title despite not claiming recovery of possession.

JUDGMENT :

Easwaran S., J.

1. The plaintiffs in O.S No.20/2010 on the files of the Sub Court, Thiruvalla, are the appellants. The 1^st plaintiff/ 1^st appellant herein was transposed as additional 4^th respondent during the pendency of this appeal, since he no longer was desirous of prosecuting the matter further and only the 2^nd plaintiff is prosecuting the appeal. This court is called upon to test the concurrent findings in a suit for declaration of title of the 2^nd appellant/2^nd plaintiff instituted by him when faced with a situation where, his property was included in a suit for partition preferred by two daughters of his father from the first wedlock without impleading him as the defendant in the party array.

2. The brief facts necessary for the disposal of the appeal are as follows:-

One T.K.Koshy was the owner in respect of item No.1 property as per sale deed No.1793/1974. He executed a Will dated 10.07.1989 to the 1^st plaintiff. T.K.Koshy, the father of the 1^st plaintiff, died on 19.02.1999, after the death of his father, the 1^st plaintiff became absolute owner of the property. Item No.2 belongs to the 2^nd plaintiff by virtue of a settlement deed No.114/1999 of Sub Registrar Office Thiruvalla. The property originally belong to T.K.Koshy, who by virtue of a settlement deed No.1604/1992 and a release deed No.961/1998 of the Sub Registrar Office Thiruvalla, transferred the property to the second wife of T.K.Koshy. Later, the second wife of Shri.T.K.Koshi and the mother of the 2^nd plaintiff gifted the property to the 2^nd plaintiff and thus the 2^nd plaintiff had taken possession of the property and he is continuing therein and has constructed a three- storey building. On the death of Shri.T.K.Koshi, defendents 1 and 2 filed O.S No.174/1999 by impleading the 1^st plaintiff and the second wife of T.K.Koshi, Smt.Mariyamma and sought partition of the plaint schedule property. The suit was decreed and a preliminary decree was passed on 15.09.2003 and later a final decree was passed on 30.09.2008. Only on 29.10.2009 and 8.1.2010, when the defendants came to the plaint schedule property to execute the decree in O.S.No.174 of 1999, the plaintiffs came to know about the above judgment and decree in O.S.No.174 of 1999, because, at the time of the death, the documents were in possession of defendants 1 and 2, the sisters, who took away the documents and later certified copies of the documents were obtained and then only, the fraud played by the defendants was known to the plaintiffs. Accordingly, the present suit was filed contending that the judgment and decree in O.S No.174/1999 is not binding. The defendants resisted the suit and contended that the parties were aware of the proceedings in O.S. No.174/1999 and that they are estopped from contending otherwise. It is further contended that the mother of the 2^nd plaintiff, Smt.Mariyamma was a party to the suit and therefore the 2^nd plaintiff is not entitled to the declaration as sought for. On behalf of the plaintiffs, Exts.A1 to A20 documents were produced and PW1 to PW6 were examined. On behalf of the defendants, Exts.B1 to B7 documents were produced and DW1 to DW5 were examined. Exts.X1 to X7 are the third party exhibits. The trial court on appreciation of the oral and documentary evidence came to the conclusion that the plaintiffs are not entitled to the decree and hence dismissed the suit. On appeal, the First Appellate Court found that, as far as the 2^nd plaintiff is concerned, is entitled to the declaration as sought for, because he was not a party to O.S No.174/1999. But then, it is found that since he has not sought recovery of possession, the declaration cannot be granted because of the Bar under Section 34 of the Specific Relief Act, 1963. Accordingly, the appeal