1. This appeal by plaintiff is directed against the judgment and decree dated 24.6.2005 in civil appeal No.2-A/2005 confirming the judgment and decree dated 30.6.2004 in civil suit No.16A/2003. Plaintiff’s suit for declaration and permanent injunction has been dismissed.

2. Facts necessary for disposal of this appeal are to the effect that plaintiff/appellant is the sole daughter of defendant No.3; father of the appellant/plaintiff-Ratiram was the real brother of defendant No.1-Shanti Kumar. It is not disputed between the parties that Ratiram and Shanti Kumar jointly held ancestral property, out of which relevant for the purpose of instant suit is falling in survey Nos.980, 981 and 1001 admeasuring 2.20 hectare, however, the same is recorded in the name of Shanti Kumar in revenue records. Partition had taken place between the brothers and the land falling in survey Nos.980, 981 and 1001 plus survey No.966 admeasuring 2.648 hectare of land had fallen to the share of Ratiram and rest of the ancestral land was held to be of the ownership of Shanti kumar, which has been mutated in the name of Shanti kumar and after partition both brothers have been in possession of the respective lands. After death of Ratiram, plaintiff/appellant and defendant No.3 became owners of the suit land with equal share. However, Shanti Kumar taking undue advantage of ignorance and illiteracy of plaintiff and her mother defendant No.3 got his name mutated in respect of the suit land in the revenue records and threatened the plaintiff and defendant No.3 of forcible dispossession. Under such circumstances, suit was filed for declaration and permanent injunction.

3. Defendant No.1 filed written statement and denied that there was partition between defendant No.1 and Late Ratiram. It is averred that there was a family settlement between brothers during the lifetime of their father and Ratiram had separated himself with the movable and immovable properties given to him. However, the suit land in the name of defendant No.1 in fact is of his ownership and possession having been apportioned in his favour in family partition. As such, it is denied that the suit land is of the ownership and possession of plaintiff and defendant No.3. Plaintiff has not filed suit for recovery of possession of the suit land and, therefore, the suit is not maintainable in view of section 34 of the Specific Relief Act. With the aforesaid pleadings, defendant No.1 prayed for dismissal of the suit.

4. Surprisingly, defendant No.3 had filed written statement seeking dismissal of the suit on the premise that Ratiram has never ploughed the suit land and the land which has fallen to the share of Ratiram was bequeathed in favour of plaintiff/appellant. With the aforesaid pleadings, suit was prayed to be dismissed.

5. The trial Court, on the aforesaid pleadings, framed issues and allowed the parties to lead evidence. The trial Court held that the plaintiff is not found to be in possession of the suit land and, therefore, the suit for declaration and permanent injunction was not maintainable. On appeal, the first appellate Court has though held that the suit land was of the ownership of Ratiram and, therefore, the plaintiff is held to be the owner thereof, as well discussed in para 8 of the impugned judgment, however, as plaintiff was not found to be in possession of the suit land and, therefore, for want of relief of possession, suit was held to be rightly dismissed by the trial Court.

6. Learned counsel for the appellant contended that there is concurrent finding of facts as regards ownership rights of the plaintiff over the suit land. Neither before the first appellate Court nor before this Court any cross objection has been filed against the aforesaid findings by the respondents/defendants, hence, this finding has attained finality, however, as regards dismissal of suit on the premise of absence of relief of recovery of possession of the suit land justified by the Courts below on the b