MODI, J. - (1.) THIS is a defendants' second appeal and arises out of a suit brought by respondents Nos. land 2 for cancellation of a gift-deed in the following circumstances.
(2.) THE plaintiffs-respondents' case was that the suit property which consists of a house and some land belonged to one Mohamed Khan, Mohamed Khan had a son Ghasi Khan, and both these persons died in Svt. 1974. Ghasi Khan had a son Habib Khan who later died issueless. Bakshu Khan married Ghasi Khan's widow after his death. This Bakshu Khan is the brother of plaintiff-respondent No. 2 Panney Khan. THE plaintiff alleged that Bakshu Khan made a gift of the suit property in favour of the defendant-appellant Gani Mohamed who was his daughter's son, by a registered deed of gift dated 5th March, 1945. THEy claimed that Bakshu Khan had no right whatsoever to make a gift of the suit property, which belonged to Mohamed Khan, to the appellant Gani Mohamed and, therefore, prayed that the gift-deed be declared void and cancelled. THE relationship of the parties will appear from the following pedigree table: - Nizam Khan Kasim Khan Sher Khan Fiaj Khan Dinar Khan Mohd. Khan Meer Khan Ghasi Khan (Pltff. respondent No. 1) Habib Lal Khan Azim Khan Solam Khan Niwaj Khan (Deft. No. 2) Abdul Khan (Deft. No. 3) Bakshu Khan Panney Khan (Pltff-respondent Daughter No. 2) Gani Mohammed Deft. appellant No. 1) This pedigree table was admitted by both parties to the suit as correct. Defendant-appellant Gani Mohamed was a minor who contested the suit through his guardian ad litem Ahmed Khan and admitted that he was Bakshu Khan's daughter's son but contended that the suit property belonged to Bakshu Khan alone and that Bakshu Khan was the son of Mohamed Khan. It may be pointed out here that the suggestion in saying that Bakshu Khan was the son of Mohamed Khan was that Bakshu Khan had been adopted to Mohamed Khan. The defendant admitted that Bakshu Khan had made a deed of gift in respect of the suit property in favour of the former and contended that Bakshu Khan was perfectly en-entitled to do so. It was further contended on behalf of the defendant that he was in possession of the suit property and that its value was Rs. 900/- and that the plaintiffs had filed their suit on insufficient court-fee. It may be pointed out here that the plaintiff, for purposes of jurisdiction, valued their suit at Rs. 100/- and filed on a court-fee stamp of Rs. 6/4/- only. Defendants Nos. 2 and 3 admitted the plaintiff's case. On the above pleadings only two issues were framed. First, whether the property which was the subject-matter of gift made by-Bakshu Khan in favour of defendant No. 1 Gani Mohamed belonged to Mohamed Khan, and secondly, whether the plaintiffs were entitled to have the gift deed cancelled and if so to what extent. The trial court dismissed the plaintiffs' suit holding that the property belonged to Mohamed Khan but devolved on his widow on his death and was gifted by her to Bakshu Khan who consequently became its sole owner and was entitled to make a gift thereof to whomsoever he liked. On appeal by the plaintiff-respondents, the learned District Judge, Merta, reversed the decree of the trial court and held that the gift-deed in dispute be cancelled to the extent of the immovable properties mentioned therein. The present appeal has been filed against the above judgment and decree. Learned counsel for the appellants attacked the judgment and decree of the first appellate court on a number of grounds, but I do not propose to deal with all of them, as in my view, this appeal must be disposed of on one ground only, That ground is that the plaintiffs' suit was and is bad under the proviso to sec. 42 of the Specific Relief Act. It was strenuously contended by learned counsel for the appellants that the plaintiffs were out of possession of the suit property and that it was clearly stated by the contesting defendant Gani Mohamed that he was in possession of the entire property in dispute, and, therefore, the plaintiffs were not entitled to bring a suit merely for cancellation of the deed of gift in this case without also praying for possession. It was contended on the other hand by learned counsel for the plaintiff-respondents that their suit was maintainable in the form in which it was filed. Learned counsel relied on a two-fold argument in support of his contention. Firstly, that his suit being one for cancellation of the gift-deed was not a suit for a bara declaration and secondly that the plaintiffs were not called upon to make a prayer for possession as the defendant Gani Mohamed was not himself in possession but the widow of Mohamed Khan was in possession of the property. The relevant portion of sec. 42 of the Specific Relief Act reads as follows: - "provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration to title omits to do so. " It may be pointed out that the relief claimed by the plaintiffs in the plaint was that the deed of gift dated 5. 3. 1945 be declared void and cancelled. The question, therefore, that arises is whether it was really a suit for cancellation or for declaration of any right or any legal character as to the popery. Having given my most careful consideration to this aspect of the case, I have arrived at the conclusion that it was really a suit for a declaration. There is a clear and well-marked difference between a suit for cancellation of a deed affecting certain property and a suit for a declaration that a particular document be declared inoperative against a plaintiff. A suit for cancellation must be brought by a person who cannot establish his title to certain property so long as such a deed was not cancelled. That would be so in the case of a person who was a party to the deed or was otherwise bound by it in law. But the law seems to be well established, to my mind, that it is not necessary for a third party to a deed, that is, who is neither a party thereto nor is bound by it, to bring a suit for cancellation of the deed in question. It is quite obvious therefore that in such a case it is not necessary for the plaintiff to get the deed cancelled in order to be entitled to the relief claimed by him. (See Vellayya Konar vs. Ramaswami Konar (1) (A. I. R. 1939 Mad. , 894. ). In the light of the principle set out above, I have no hesitation in coming to the conclusion that the present suit was really one for a declaration. This appears to me to be the real gist of the prayer for relief made by the plaintiffs and the mere fact that they further asked for the document to be cancelled, in my opinion, cannot give their suit a different character. I may also point out that it is well settled that it is open to a court to construe a plaint according to its substance and not merely according to its outward form. The court must ofcourse proceed with caution in the matter and should not introduce anything in the plaint which it really does not contain. To me, therefore, it seems quite obvious that the plaintiffs in the present case were really seeking to have the gift-deed declared inoperative so far as their rights were concerned and they were not under the necessity of filing a suit for the cancellation of the gift-deed. I shall now take up other contention raised on behalf of the plaintiff-respondents. That question is - whether the defendant Gani Mohamed was in possession of the property in dispute at the date of the suit. This is a matter of evidence. It is indeed regrettable that the question whether the present suit was not maintainable for want of a consequential relief, did not strike the legal advisers of the defendant or even the courts below, and it was, therefore, not made the subject-matter of an issue and was not considered by the lower courts. I have therefore, gone into the material which exists on the record and have reached the conclusion that defendant Gani Mohamed is in possession of the suit property. I may first of all refer to the allegation made in the written statement filed on behalf of Gani Mohamed in which it is clearly stated that he was in actual possession of the property in dispute. On the other hand, the plaintiffs say nothing in their plaint that they ever have been in possession. The plaintiffs produced three witnesses in all, P. W. 1 Moidin Khan, P. W. 2 Pyaru Khan and P. W. 3 Panney Khan, the last named being one of the plaintiffs. The evidence of Moidin Khan and Pyaru Khan one the point of possession does not appear to me to be worthy of much notice or belief. They do not know whether Bakshu Khan made any gift in favour of the defendant Gani Mohamed but it is admitted by Piaru Khan that Gani Mohamed sometimes lived in the property in dispute. As regards Panney Khan, he does not say that he or the other plaintiff has ever been in possession of the suit property, and he says, contrary to what the previous witnesses have said, that Bakshu Khan used to live in the property in question. He does not say at all that Gani Mohamed is not in possession. On the side of the defendant, Hafiza, widow of the alleged owner of the suit property, has appeared. I do not think it right to deal at length with her evidence at this stage and consider it sufficient for the purposes of the present question that from her evidence it clearly appears that Gani Mohamed is in possession of the suit property. The evidence of this witness is of considerable significance on the question of possession and is, in my opinion, sufficient to enable this Court to come of a proper conclusion on the question of possession. Then, there is the gift-deed which clearly says that Bakshu Khan had handed over the possession to Gani Mohamed. It may be that as Gani Mohamed is a minor, the widow, Hafiza may be living with her; but that cannot, in my opinion, deprive Gani Mohamed of his possession over the property in dispute. It seems to me, therefore, that two conclusions clearly emerge from the above discussion. First, that the plaintiffs are not in possession of the suit property, and secondly, that defendant Gani Mohamed is in possession thereof. The question, therefore, that arises in these circumstances is whether the plaintiffs' suit is maintainable in its present form. My answer to that question is a clear negative in view of the proviso to sec. 42 of the Specific Relief Act. The principle behind the proviso is plain enough and that is that a defendant must not be subjected to a multiplicity of litigation as regards the same property. It is obvious that in order to succeed in their right to the property in dispute, the plaintiffs will have to bring another suit for recovery of possession in respect of it, and that is exactly which the law, in its wisdom, does not permit. Learned counsel for the plaintiff-respondents referred to me a few cases with which I shall now deal. The first case he relied on was Chomu vs. Umma (1) (I. L. R. XIV Mad. 46. ). In that case the plaintiff as heir to her husband brought a suit for declaration of title to a certain share of jenm value of certain land which had been taken by the Government under the Land Acquisition Act. The plaintiff's husband had mortgaged his share of the land in question to the defendants' predecessor in title in which his share was valued at a certain sum. It was held, in these circumstances, that the relief sought for by way of declaration was sufficient and that it was not necessary for the plaintiff to ask for any further relief in the suit. This case, obviously, cannot help the respondents. The next case to which I was referred was Sarasuti vs. Mannu (2) (I. L. R. II All. 93. ). There a suit for a mere declaration of a right was not thrown out because the court of first appeal had permitted the plaintiff to make up the full amount of court fees required for the suit for possession of the property which the Judge considered was the real object of the suit. The circumstances of that case, therefore, were very different and cannot furnish any help in the present case. Another case to which I was referred was Limba Bin Krishna vs. Rama Bin Pimplu (3) (I. L. R. XII. Bom. 548. ). The plaintiffs there sued for a declaration of their right to officiate as priests in a temple, and receive the offerings to the idol alleging that the defendants had obstructed them in the exercise of their right and had also dispossessed them of a certain portion of the temple lands. The plaintiffs had prayed for possession of this land. The trial court passed a decree in plaintiffs' favour but on appeal, the first appellate court was of the opinion that the suit did not lie for a mere declaration of a right to worship and, therefore dismissed the suit on the ground that the civil courts had no jurisdiction to entertain it. An objection having been raised that the suit was not maintainable as the plaintiffs had not asked for any further relief in the shape of compensation for the fees wrongfully taken by the defendants, or for an injunction restraining the defendants from interfering with their exercise of their right to worship in the future it was held that the claim was not open to such an objection and that in any case the plaintiffs ought to have been allowed the opportunity of amending their plaint when presented, and should now be allowed that opportunity, if necessary. This case is obviously, no authority for holding that the plaintiffs' present suit should be held to have been properly filed without a prayer for possession. Learned counsel for the respondents also relied on Mst. Imam Bibi vs. Abdul Rahman (4) (A. I. R. 1936 Lah. 929. ). In that case the defendants were not in possession of the property and, therefore, it was held that the plaintiff need not could not ask the court for dis-possessing the defendant and the suit for mere declaration was held to have been properly filed. It is scarcely necessary to cite any authorities for the view that a court shall not make any declaration as regards the legal character or any right as to any property claimed where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Sec. 42 of the Specific Relief Act is quite clear on the point but if any authority were necessary, I may cite Anila Bala vs. Madhabendu (1) (A. I. R. 1942 Cal. 245), Masjid Shahid Ganj vs. S. G. P. Committee (2) (A. I. R. 1938 Lah. 369) and Joseph Klein vs. Eliahu (Leo) Herman (3) (A. I. R. 1949 P. C. 53 ).
(3.) BEFORE concluding, I should like to add that even if the present suit were to be considered as a suit for declaration plus cancellation, it would not be maintainable for that reason only and could not be considered to steer clear of the objection under the proviso to sec 42 of the Specific Relief Act. The reason is this. The meaning of the expression "further relief" accusing in the proviso is that the relief claimed must be appropriate to and consequent on the rights asserted but denied. Where, therefore, the plaintiff asks for a declaration that a certain deed of gift was void and that the deed be cancelled, in a case like the present, a prayer for mere cancellation of the deed is not the "further relief" which the plaintiff should have claimed consequent on the right asserted and denied, the requisite further relief would be recovery of possession. It is not any kind of relief that would constitute "further relief" within the meaning of the proviso to sec. 42 of the Specific Relief Act, but it must be a relief appropriate to and consequent on the right or title involved Thus a prayer for a mere injunction, where, on the facts, the appropriate "further relief" claimed would be recovery of possession, would be no answer to an objection under the proviso to sec. 42. What further relief should be claimed is, however, a matter which, depends upon the circumstances of each particular case. Consequently, I am of opinion that in this case the plaintiff being out of possession and the defendant in possession, the "further relief" that was necessary to be claimed was not merely a cancellation of the gift-deed but the recovery of possession, and a suit for mere declaration of title and cancellation of the gift-deed will not be maintainable unless the plaintiffs pray for possession also. I, therefore, hold that the present suit of the plaintiffs for a mere declaratory relief is not maintainable. The next question that falls for consideration, however, is whether the plaintiffs' suit should be dismissed on this ground or an opportunity should be allowed to them to amend their plaint if they wish to have their suit re-tried on the basis of a proper suit for possession. In view of the fact that plea of the non-maintainability of the suit was raised for the first time in this Court (although I may state that all the facts necessary for founding such a plea were mentioned in the written statement of the contesting defendant Gani Mohamed), I think the interests of justice require that an opportunity should be given to the plaintiffs to amend their plaint. As the present appeal succeeds on this short ground, it is not necessary for me to deal with the other points raised in the appeal. It follows that I allow this appeal, set aside the judgment of the court below and remand the case to the trial court with a direction that it will give an opportunity to the plaintiffs to amend their plaint in the light of the observations made above, and to proceed with the further trial of the suit according to law. The trial court will also give an opportunity to the -contesting defendant to file a fresh written statement, and both parties will be entitled to lead their evidence on such issues as may be raised. In view of the special circumstances of the case, I would leave the parties to bear this own costs up to date. Costs hereafter will abide the result. . ;