1. This is the defendants second appeal and arises out of a suit for declaration. The suit was dismissed by the trial court but on appeal was decreed by the District Judge, Jammu.

2. Sarb Singh, Krishen Singh and Hazra Singh were three brothers They owned land jointly in village Kotli, Mian Fateh, Tehsil R.S. Pora. Out of the land so held, Sarab Singh disposed of his l/3rd share of 9 kanals and 11 marlas of land by sale in favour of Gian Chand, the appellant. The land so sold fell under survey Nos. 283, 608/286, 606/286 and 421/284. The sale deed was executed for a consideration of Rs. 9,000/- on 4-1-1967. Krishen Singh and Hazra Singh brought a suit for declaration challenging the legality of the sale in favour of the appellant. They averred that the three brothers constituted a joint family and the entire land was joint. The sale was without consideration. Gian Chand appellant resisted the suit on the ground that the sale was for consideration and the land was not held jointly between the brothers but had been partitioned. Sarab Singh could legally alienate his own share out of the land which had fallen to his share. A number of issues were raised by the trial court. The first issue related to the joint character of the land. The second issue was whether the sale was for consideration. The third and fourth issues related to legal necessity and reliefs respectively. The learned Sub Judge Jammu who tried the suit held that there was no partition between the brothers and that the land was jointly held by them. He also found that the sale was for a consideration. On the question of legal necessity he decided against the plaintiff. He, however, found that the vendor Sarab Singh had sold 10 marlas of land in excess of his share and therefore the sale of ten marlas made by Sarab Singh being in excess of his share was set aside. The sale in respect of 9 kanals and 1 marla was allowed to remain in tact. The trial court observed that as the vendor had sold specific survey numbers of the joint property, the sale of the specific numbers was not valid and was therefore, set aside. The trial court observed that as the appellant is already in possession of the land sold to him by Sarab Singh, the vendor, his possession could not be disturbed. Any one of the plaintiffs or the vendee could bring a suit for partition if they so choose. With these observations the suit was disposed of. On appeal the District Judge set aside the judgment and the decree of the trial court. He held that the sale of 9 kanals and 11 marlas for specific numbers made by Sarab Singh in favour of the appellant was invalid and ineffective and was therefore liable to be set aside. He, therefore, decreed the suit. Aggrieved by this judgment of the first appellate court, the defendant has come in second appeal.

3. The matter once came up before Mr. Justice D. D. Thakur (as he then was). Twofold arguments were raised before him. Firstly the finding of the District Judge on the issue regarding possession of Sarab Singh over the disputed land was against the weight of evidence and secondly the suit was barred by proviso to Section 42 of the Specific Relief Act as during the pendency of the suit the plaintiff was dispossessed from the suit land. According to the plaintiffs-respondents it was not necessary for them to have amended the plaint and asked for a consequential relief of possession under proviso to section 42 of the Specific- Relief Act. The maintainability of the suit even in the absence of such an amendment remained unaffected. The plaintiffs could be awarded the possession inspite of proviso to Section 42. The learned Judge therefore, formulated the following question and referred the entire case to a larger bench for consideration:

"Does the proviso to section 42 of the Specific Relief Act stand attracted to a suit for simple declaration if the plaintiff, who is in possession of the property on the date of the suit is dispossessed during the pendency of the suit and

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