JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. As per our previous direction, the appeal is taken up for hearing along with the application.

2. Heard learned learned counsel for the parties.

3. The conspectus of the appeal is short. The learned Trial Judge dismissed the suit filed by the plaintiffs, inter alia for declaration that the defendant/ respondent no.1 is an occupier of the suit room after the death of the original tenant and for further declaration that the occupier has no right to transfer, sublet and/or hand over the suit room to the defendant, and for permanent injunction to that effect.

4. The only premise on which the learned Trial Judge dismissed the suit was that it was hit by the proviso to Section 34 of the Specific Relief Act, 1963, since the relief of recovery of possession, which according to the Trial Court is the further relief which the plaintiffs must mandatorily pray for, was not sought.

5. The learned advocate appearing for the plaintiffs/appellants submits that it is the choice of the plaintiffs as to whether or not to seek recovery of possession of an occupant/tenant of the premises.

6. It is submitted that since the plaintiffs claim to be thika tenants of the property, the relief of recovery of possession is not maintainable before a civil Court and, in any event, such relief has not been sought by the plaintiffs. It is submitted, however, that the relief of declaration and the relief of permanent injunction consequential thereto were sufficient to satisfy Section 34 of the Specific Relief Act, 1963.

7. Learned counsel appearing for the defendant/respondent no.2 submits that the plaint, as it originally stood, contained a prayer for recovery of khas possession of the suit room. It is submitted that a sea change has been brought about in the reliefs by omitting the prayer of recovery of khas possession and introducing a vague relief of declaration by way of amendment.

8. It is submitted that the trappings of Section 34 of the Specific Relief Act, 1963 are not satisfied, since relief (a) of the plaint is a vague relief, not directly pertaining to the title or character or right of the plaintiffs in respect of any immovable property.

9. Learned counsel for the respondent no.2 further seeks to rely on the averments made by the plaintiffs/appellants in their injunction application in the Trial Court in support of his contention that the reliefs sought in the plaint are vague. It is sought to be reiterated by learned counsel for the respondent no.2 that in the conspectus of the allegations made in the plaint and keeping in view the original prayers of the plaint, the relief of recovery of possession is a mandatory adjunct to the other reliefs sought by the plaintiffs. As such, learned counsel submits that the learned Trial Judge was justified in dismissing the suit due to violation of the proviso to Section 34 of the Specific Relief Act, 1963.

10. Learned counsel for the defendant/respondent no.2 further submits that in the original plaint as well as the interlocutory applications filed in the suit, the plaintiffs admitted that both the defendants are in occupation of the property. In the light of such admission, it is submitted that the suit was bad for non-inclusion of the relief of recovery of possession.

11. Learned counsel for the appellants denies the last aforementioned contention of the respondent no.2.

12. Upon hearing learned counsel for the parties, we come to the following conclusions:

13. It was recorded by the learned Trial Judge that the plaintiffs have not made any prayer for recovery of khas possession and that it appeared from the records that at the stage of argument they tried to insert such prayer by way of an amendment but it was ultimately not pressed by the plaintiffs. On such premise alone, the learned Trial Judge proceeded to observe that it is clear that the plaintiffs themselves admitted that the suit was bad as no prayer for recovery of possession had been sought for.

14. In the light of the