A suit for declaration of title and permanent injunction without seeking consequential relief of possession is not maintainable under section 34 of the Specific Relief Act.

JUDGMENT :

Shri K.S. Tomar, Senior Counsel with Shri Sanjay Singh Tomar, counsel for the appellants.

2. This appeal has been filed by the appellants, Sarnam Singh and Gurmeet Singh under section 100 of Civil Procedure Code against the judgment and decree dated 21st January, 2011 passed by First Additional District Judge, Dabra, District Gwalior in Civil Appeal No. 21A of 2010, by which the Appellate Court has reversed the judgment and decree dated 28th April, 2010 passed by Civil Judge, Class-I, Bhitarwar, District Gwalior in Civil Suit No. 61 of 2005, by which the suit filed by the plaintiffs was decreed.

3. The present appeal has been admitted on the following substantial questions of law :—

“i. Whether learned lower Appellate Court has erred in reversing the judgment and decree passed by the trial Court without considering the reasons given by the trial Court in favour of plaintiffs ?

ii. Whether lower Appellate Court has failed to consider the effect of absence of counter claim for cancellation of sale deed of appellants in presuming their possession over the suit land?”

4. The necessary facts for disposal of the present appeal in short are that a suit for declaration of title and permanent injunction was filed by the appellants against the respondents for declaration that they are the owners of 1/8th part of the land in question and the mutation order passed in Mutation Case No. 1/8081/A46 be declared as null and void and the plaintiffs are entitled for partition of 1/8th share in the property in question. It is the case of the plaintiffs that the land bearing Survey No. 53 area, 0.182 hectare, No. 54, area 0.481 hectare, No. 55 area 0.460 hectare, No. 56 area 0.181 hectare, No. 57 area 0.418 hectare, No. 58, area 1.693 hectare, No. 59 area 1.819 hectare, No. 60 area 0.544 hectare, No. 61 area 0.387 hectare, No. 62 area 0.543 hectare, No. 63 area 2.215 hectare, No.63:2 area 1.202 hectare, No. 106:1 area 1.117 hectare, No. 106:3 area 0.417 hectare, No. 106:4 area 0.209 hectare, No. 106:5 area 0.418 hectare, No. 127 area 0.439 hectare, No. 442 area 0.941 hectare, No. 446 area 0.094 hectare, No. 449 area 0.084 hectare, No. 450 area 0.241 hectare, No. 451 area 0.094 hectare, No. 449 area 0.084 hectare, No. 450 area 0.241 hectare, No. 451 area 0.146 hectare, No. 452 area 0.261 hectare, No. 454 area 0.973 hectare, No. 455 area 0.752 hectare, No. 461 area 0.178 hectare, No. 462 area 0.084 hectare, No. 464 area 0.167 hectare, No. 465 area 0.052 hectare, No. 469 area 0.063 hectare, No. 472 area 0.063 hectare, No. 473 area 0.042 hectare, No. 474 area 0.136 hectare, No. 477 area 0.042 hectare, No. 478 area 0.157 hectare, No. 471 area 0.219 hectare, No. 480 area 0.063 hectare, No. 481 area 0.063 hectare, No. 482 area 2.080 hectare, No. 484 area 0.063 hectare, No. 485 area 0.146 hectare, No. 486 area 0.105 hectare, No. 487 area 0.052 hectare, No. 488 area 0.282 hectare, No. 489 area 0.003 hectare, No. 491 area 1.003 hectare, No. 494 area 0.345 hectare, No. 495 area 0.084 hectare, No. 500 area 0.031 hectare, No. 501 area 0.021 hectare, No. 502 area 0.314 hectare, No. 503 area 0.230 hectare, No. 504 area 0.082 hectare, No. 507 area 15.573 hectare, No. 508 area 0.470 hectare, No. 501:2 area 0.084 hectare, No. 510 area 1.045 hectare, No. 512 area 0.334 hectare, No. 514 area 0.314 hectare, No. 515 area 0.345 hectare, No. 520 area 0.146 hectare, No. 521 area 0.094 hectare, No. 522 area 0.627 hectare, No. 523 area 1.361 hectare, No. 524 area 0.042 hectare, No. 525 area 0.069 hectare, No. 529 area 0.356 hectare, No. 530 area 0.838 hectare, No. 531 area 0.073 hectare, No. 529 area 0.356 hectare, No. 530 area 0.838 hectare, No. 531 area 0.073 hectare, No. 532 area 0.020 hectare and No. 560 area 0.721 hectare, total area 54,588 hectares, is situated in village Khedataka, Tahsil Dabra, District Gwalior. Parmal Singh, Prithvi Singh son of Ranveer Singh and Smt. Baiju Raja, wife of Ranveer Singh, had 1/4th share in the said land and their names were acc