SUDHIR AGARWAL,J. - (1.) This is defendant's appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as 'CPC') arising from judgment and decree dated 16.08.1978 passed by Sri M. C. Jain, Ist Additional District Judge, Ghazipur in Civil Appeal No.73 of 1977 whereby appeal was allowed and judgment and decree dated 30.04.1977 passed by Sri S. N. Pandey, IIIrd Additional Munsif, Ghazipur in Original Suit No.127 of 1967 was set aside and suit of plaintiffs was decreed.
(2.) This appeal was admitted on following two substantial questions of law :- "(i) Whether the relief of declaration could be granted without being sought (ii) Whether the relief of declaration simplicitor without granting the relief for possession be granted"
(3.) Record shows that plaintiff instituted Original Suit No.127 of 1967 vide plaint in the Court of Munsif, Ghazipur seeking following reliefs :- "????? A"" "A. That a decree of possession be passed in favour of plaintiffs over house shown by letters 'Ta', 'Kha', 'Ja', 'Jha' or part of land shown by letters 'Ka', 'Kha', 'Ga' and 'Gha' in the site map at the bottom of suit in question after dispossessing defendant no.1 for which plaintiffs' suit is under consideration before this Court. B. Total cost of suit be imposed upon defendants." (English Translation by Court);