1. The plaintiff sought to obtain a decree, declaring his title to the three plots in the schedule and for a declaration that the defendant had acquired no right to the properties in virtue of the rent decrees he had recovered against the plaintiff's tenants.
2. In the opinion of the lower Courts, the plaintiff should have included a prayer for recovery of possession, and further, the lower appellate Court refused to allow him to amend the plaint because there had been considerable delay in' applying for that purpose.
3. In second appeal, the contentions raised are three in number: first, that the plaintiff's suit was maintainable on a right construction of Section 42 of the Specific Relief Act; secondly, that, at any rate, the amendment of the plaint prayed for should have been allowed, and, thirdly, that, in any event, the suit can proceed with regard to the third plot as to which the defendant has not recovered any rent decree against the tenant thereof.
4. A number of cases have been cited; but before dealing with three of the cases which appear to be on the point, we may observe that Section 42 provides for a suit by a person, who is unable to seek any further relief, fat a mere declaration against another person interested to deny his title. Unless, therefore, the plaintiff in the present action is able to seek further relief than a mere declaration of title, his suit is perfectly good and should be permitted to proceed. Now, his position is that he is still in possession of the three plots in suit, and that he has not yet failed to recover rent from the tenants on the land. He may possibly be defeated in an attempt to recover rent, but, in the present circumstances, he has come into Court in order to dispel the cloud cast upon his title by the action of the defendant. Suits of this kind are frequently brought.
5. In Lohenath Surma v. Keshab Ram Boss 13 C. 147, at p. 154 it was pointed out that the plaintiffs were entitled to sue under Section 42 of the Specific Relief Act, because they were not seeking for Mas-possession but merely for possession by receipt of rent from the defendants and that, on obtaining a declaration of title, it would be sufficient for them to notify it. In that view, it was held that the plaintiff's omission to sue for possession was immaterial. Then, in Chinnammal v. Varadarajulu 15 M. 307, the conclusion drawn from all the evidence as to possession was that possession of the whole property in dispute was neither with one nor the other of the contending parties, and that it might be expected in a case of such dispute that some of the ryots might recognise' one claimant as their landlord and some the other. The learned Judge of the Madras High Court went on to say that such a case is eminently one in which a declaratory decree is desirable, to avoid multiplicity of suits and to obtain a decision once and for all, which shall secure peaceful possession of the property. In fact, in a case of this kind, the plaintiff is unable to seek any further relief. We may also refer to the decision of the Judicial Committee in Nirmal Chunder Banerjee v. Mahomed Siddik 26 C. 11 : 25 I.A. 225, in which the decision of Macpherson, J. was ultimately upheld. There, an objection was raised as to the form of the suit being one to obtain a declaratory decree only. In that case rival claimants had obtained decrees for rent each against some tenants of the property. Their Lordships thought that the suit being an attempt to put the whole title 'directly in issue between the principal claimants, it was not only the most convenient but a strictly regular way to bring the dispute to a close.
6. On these authorities, we think, the plaintiff's suit was maintainable. We need not anticipate what may eventually happen if the plaintiff is successful in this litigation. His object being to obtain a declaration in order to dispel the cloud cast on his title by the action of the defendant, and, he being at present unable to seek any further relief, he has proceeded in the right manner.
7. The appeal is accordingly allowed. The plaintiff's suit will continue, and the Court-fees paid on his memorandum of appeal will be refunded to him.
8. The plaintiff is entitled to costs of this Court. The costs of the lower Courts will abide the ultimate result.