JUDGMENT : BANERJI, J. 1. In my judgment this suit ought to have been dismissed as baried by the provisions of section 42 of the Specific Relief Act. The suit was for a declaration that a half share of a certain house is the property of the plaintiff, and that the second defendant had no right to sell the said share to the first defendant under a sale-deed of the 9th of November, 1909. The house originally belonged to one Bhola. He made a gift of it in 1890 to the second defendant Bhairo and to Musammat Sona, the wife of Bhairo, by sagai marriage. Sona made a gift of her half share in favour of the plaintiff on the 3rd of April, 1905. After this gift Bhairo sold the house to the first defendant. The allegation on behalf of the plaintiff is that Sona was the owner of a half share of the house and that Bhairo was not competent to sell that half. She alleged that she was in possession and prayed merely for a declaration of her right to a half share, and a, further declaration that the sale of that half share could not affect her rights. The defendant-appellant pleaded that Sona had been turned out of the house 15 years before the institution of the suit, that Bhairo was in sole proprietary possession, that Sona's title had become extinct at the date on which she made a gift in favour of the plaintiff and that neither Sona nor the plaintiff was in possession. He also pleaded the bar of section 42 of the Specific Relief Act. The learned Judge has found that Sona was not living in the house for upwards of 15 years, but he says that even if she was turned out of the house, the possession of her husband would not be adverse to her. Holding the view that I do in the case, I need not decide this point. I may, however, observe, that if, as a matter of fact, Sona was forcibly turned out of the house and was not allowed to re-enter it, I cannot conceive how this act can be regarded other than an act of adverse ownership which would constitute adverse possession. However, the learned Judge has found that the plaintiff was not in possession, actual or constructive, at the date of the suit. However, the learned Judge has found that the plaintiff was not in possession, actual or constructive, at the date of the suit. He holds that, although she was not in possession, she was entitled to a declaration of her right because she had asked in her plaint that the sale-deed executed by Bhairo in favour of the appellant be cancelled, and this was consequential relief claimed by her. 2. I cannot agree with the learned Judge. 3. The suit was not really one for the cancellation of a document within the meaning of section 39 of the Specific Relief Act. As between the executant of the sale deed and the person in whose favour it was executed, it is a good deed. What the plaintiff alleges is that in so far as it purports to convey her half share, it cannot operate as against her interests. The prayer for cancellation of the sale deed is therefore in reality a prayer for a declaration that the sale deed cannot affect her interests in the property. Now the proviso to section 42 of the Specific Relief Act is to the effect “that no court shall make a declaration of right where the plaintiff being able to seek further relief than a mere declaration of title omits to do so.” In this case the plaintiff has been found to be out of possession, and therefore she was able, if her case is true, to seek further relief than a mere declaration of title, namely, possession of her half share. This she omitted to claim. Therefore, having regard to the proviso to section 42 the court should not have made a declaration of her right but should have thrown out her suit. 4. The learned Vakil for the respondent urges that the suit could not be dismissed, and he relies in support of his contention on the decision of the Bombay High Court in Kunj Bihari v. Keshav Lal Hira Lal, [1904] I.L.R., 28 Bom, 567. That case is distinguishable, as there was a prayer in it for an injunction which appears to have been the only substantial relief which the plaintiff could have got in addition to a declaration of his right. No doubt, the learned Judges, referring to section 42, said, “Nothing is said here about dismissing his suit. That case is distinguishable, as there was a prayer in it for an injunction which appears to have been the only substantial relief which the plaintiff could have got in addition to a declaration of his right. No doubt, the learned Judges, referring to section 42, said, “Nothing is said here about dismissing his suit. All that is enacted is that no court shall make a declaration where the plaintiff being able to seek fur her relief omits to do so.” With great respect I am unable to agree with the learned Judges. The proviso to section 42 forbids the court to make a declaration of title where the plaintiff can seek further relief than a mere declaration and omits to do so. Where, therefore, in a suit the plaintiff merely seeks a declaration and that declaration the court is not competent to make in consequence of the proviso to the section, the necessary result will be that no relief will be granted to the plaintiff and his suit will be dismissed. If the court cannot make the declaration sought, no other relief can be granted, and the only result must be a dismissal of the suit. In the present case the plaintiff only seeks a declaration, or rather two declarations, first, that she owns a half share in the house, and second, that the sale made by the second defendant in favour of the first defendant is inoperative as regards that share. She does not claim the further relief to which she is entitled, namely, possession of the property, she being, as found by the lower appellate court, out of possession. Under these circumstances she is not entitled to the declaration sought and her suit must fail. I accordingly allow the appeal, set aside the decrees of the courts below and dismiss the plaintiff's suit with costs in all courts.