In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side Present :- The Hon’ble Justice Sabyasachi Bhattacharyya and The Hon’ble Justice Supratim Bhattacharya Case No. FA 393 of 2025 with CAN 1 of 2025 In the matter of : SMT. KANAK BARICK & ORS. …. Appellants VS. SRI JANMANJAYA PANDEY alias BOGHA & ANR. ….Respondents For the Appellants : Mr. Shyamal Chakraborty Mr. NayanRanjanChakrabarti Mr. SwastikPolley ….Advocates For the Respondents : Mr. Debdipto Banerjee Mr. Soumen Banerjee ….Advocates Heard on : 20.01.2026 Judgment on : January 20, 2026. Sabyasachi Bhattacharyya, J. :- 1. As per our previous direction, the appeal is taken up for hearing along with the application. 2 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, 3 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 4 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. 5 14. In the light of the said observation, the learned Trial Judge drew an inference that the suit was barred under the proviso to Section 34 of the Specific Relief Act, 1963 as the relief of recovery of possession is a further relief which the plaintiffs must mandatorily pray before the Court since the plaintiffs are admittedly out of possession. 15. The learned Trial Judge also placed reliance on a judgment of Venkataraja and Others Vs. VidyaneDoureradjaperumal and Others reported at (2014) 14 SCC 502 where it was held that a suit for declaration of title over the suit land filed, without claiming consequential relief of possession by eviction of tenants in possession of the suit land, was not maintainable. The fact that the plaintiff could later file a suit for eviction of tenants is no ground to hold that the suit is maintainable. 16. It was further observed that permitting the appellants to maintain the suit would also defeat Order II Rule 2 of the Code of Civil Procedure. 17. In the present case, however, we find from the averments made in the plaint that the cause of action for the suit arose when the defendant no.1 illegally sought to transfer and / or hand over and / or sublet the suit property to the defendant / respondent no.2. 6 18. The very premise of the cause of action, as disclosed in the plaint, indicates that the plaintiffs are not bent upon having khas possession of the property but merely seek to restrain further transfer of the property by the defendant / respondent no.1 in favour of defendant / respondent no.2. 19. Thus, the fabric of the suit does not necessarily mandate that recovery of possession ought to have been sought by the plaintiffs. 20. It is well-settled that a judgment is a precedent for only what it decides in the facts and circumstances of the case and not for any derivative or corollary of the proposition laid down in the judgment which can be inferred secondarily from the said ratio. 21. Proceeding from such perspective, the judgment of the Hon’ble Supreme Court relied on by the learned Trial Judge is not apt in the circumstances of the case. In the present case, the plaintiffs have not merely claimed declaration of title over the suit property but have specifically sought declaration that the defendant no.1 is the occupier of the suit room after the death of the original tenant, one Ram Pandey, in the suit premises, the secondary relief of declaration that defendant no.1, being the occupier, has no right to transfer, sub-let and / or hand over suit room to the defendant no.2 and the consequential relief of 7 permanent injunction restraining the defendant no.1 from doing so. 22. The very cause of action of the suit was the alleged attempt on the part of the defendant no. 1 to transfer the suit property to the defendant no. 2. Although the plaintiffs may not have any quarrel with the defendant/respondent no. 1 continuing in occupation of the suit property, they are still entitled to interdict in the defendant no. 1 illegally transferring/sub-letting the suit property to the defendant no.2. 23. Thus, in the facts of the case, the relief of permanent injunction would suffice to complete the nature of reliefs sought in the suit. 24. Hence, the proviso to Section 34 of the Specific Relief Act, 1963 cannot be attracted in the present case. 25. For the sake of convenience, the prayer portion of the plaint is set out hereinbelow :- “The plaintiffs therefore pray for : - a). Decree for declaration that defendant No.1 is the occupier in the suit room after the death of the original tenant Ram Pandey in the premises No.123/2/H/82, Acharya Prafulla Chandra Road, P. S. Burtolla, Kolkata 700 006. 8 b). Decree for declaration that the defendant No.1 being the occupier have no right to transfer, sublet and/or handover the suit room to the defendant No.2 or any other person or persons without written consent from the plaintiffs or also got no right to encumber the suit room in any manner whatsoever. c). Decree for permanent injunction restraining the defendant No.1, from transferring, assigning, subletting, alienating and/or part with possession fo the suit room to the defendant No.2 or any other third party without written consent from the plaintiffs as also restraining the defendant No.2 from creating any sort of disturbances in the suit room and from any illegal attempt for forceful entry in the suit property. d). Temporary injunction with ad-interim order of injunction in terms of prayer (c) above; e). commission. f). For cost; g). For such other relief or reliefs as the plaintiff is entitled to.” 26. In such context, we cannot agree with the observation of the learned Trial Judge that the relief of recovery of possession was a mandatory relief to be sought by the plaintiffs in the present suit, as framed. 9 27. The mere fact that the plaintiffs, during pendency of the suit, also made an application seeking to introduce the relief of recovery of possession but later not pressed the same and / or the relief of recovery of possession was originally a part of the plaint but subsequently amended, do not have any germane bearing on the outcome of the suit. 28. Within the contemplation of Order II of the Code of Civil Procedure, it is in any event open to the plaintiffs to relinquish a part of the claim made originally in the suit. 29. In the present case, the relief of recovery of possession is not so essential that omission of the same shall render the suit barred under the proviso to Section 34 of the Specific Relief Act, 1963, which stipulates that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. As discussed earlier, the relief of permanent injunction takes care of the cause of action of the suit, as per the frame of the present suit. 30. Moreover, whereas the relief of recovery of possession of a Bharatia under aThika Tenant can only be sought before the Thika Controller, the relief of injunction restraining a Bharatiafrom unlawfully handing over/transferring the Thika property in favour of a proposed sub-tenant cannot be granted 10 by the said forum but only by a civil court. Hence, in any event, the relief of recovery of possession could not be clubbed in the present suit in view of the pleaded stand of the plaintiffs that they are Thika tenants and the defendant no. 1 is a Bharatia. 31. Thus, the expression “being able to seek” preceding “further relief” in the proviso to Section 34 acquires importance. Here, the plaintiffs were not able, in law, to seek the further relief of recovery of possession before the civil court, whereas the reliefs actually sought can only by granted by the civil court and not any other forum. Hence, the rigour of the proviso is not applicable in the present case, as the plaintiffs were not “able to seek” the further relief of recovery of possession. 32. Accordingly, FA 393 of 2025 is allowed on contest, thereby setting aside the impugned judgment and decree dated August 27, 2025 passed by the learned Judge, Second Bench, City Civil Court at Calcutta in Title Suit no.708 of 2012 and remanding the matter to the learned Trial Judge for a fresh adjudication of the suit on merits, upon giving adequate opportunity of hearing to both sides in accordance with law. 33. It is made clear that apart from setting aside the impugned judgment on the ground of maintainability of the suit, this Court has not entered into the merits of the respective contentions of 11 the parties in any manner whatsoever and it will be open to the learned Trial Judge to decide all questions on merits in accordance with law independently, without being influenced in any manner by any of the observations made above. 34. CAN 1 of 2025 is accordingly disposed of as well. 35. There shall be no order as to costs. 36. A formal decree be drawn up accordingly. (Sabyasachi Bhattacharyya, J.) I agree. (Supratim Bhattacharya, J.)