S. K. MOOKHERJEE, J. ( 1 ) THIS second Appeal, at the instance of the defendants, is directed against the judgment of affirmance, dated 15th of December, 1979 passed by the learned Additional District Judge, First Court, Jalpaiguri, in Original Civil appeal No. 11 of 1979 affirming the same, dated 24th of February, 1976 passed by the Learned Munsif, Jalpaiguri in O. C. Suit No. 129 of 1976. ( 2 ) THE facts necessary and relevant for adjudication of the dispute involved in the appeal are more or less admitted. The defendants 1 to 4 filed a suit for partition, being partition Suit No. 26 of 1951, of the Court of the Learned Subordinate Judge, Jalpaiguri, against defendants 5 to 16 and/or their predecessors-in-interest claiming partition of their 1 anna 15 gandas 2 karat 13 tills' share without impleading the present plaintiffs/ respondents and/or their predecessors-in-interest as parties and obtained an ex parte preliminary decree on 13. 1. 1955 and a final decree. The plaintiffs had instituted the instant suit, inter alia, alleging that the properties in dispute in the present suit were owned by such plaintiffs and/or their predecessors-in-interest on the basis of deeds of purchase and/or auction sale and were in their possession as con6rmed by the R. S. Records of rights; that the defendants, claiming that they had been allotted portion of the suit properties by virtue of the final decree of the above partition suit had been threatening to disturb the possession of the plaintiffs. Accordingly, in the instant suit the plaintiffs prayed for a declaration that the preliminary decree and final decree passed in the said partition suit were fraudulent, collusive, null and void and not binding on the plaintiffs and their right, title and interest had not been affected by such decrees and also for a perpetual injunction against defendants 1 to 4 seeking to restrain them from disturbing the possession of the plaintiffs in the suit lands. The defence, as discernible from the Written Statement filed on behalf of the defendants 1 to 4, was, inter alia, denial of the plaintiff's right, title, interest and possession in the disputed lands. It is partinent to note, at this stage, that no dispute about the identity of the lands involved in the present suit and of those covered by the above partition decrees had been raised on behalf of the defendants. It is partinent to note, at this stage, that no dispute about the identity of the lands involved in the present suit and of those covered by the above partition decrees had been raised on behalf of the defendants. ( 3 ) THE learned Trial Judge, upon a consideration of the respective cases and the documents of title as filed, decreed the suit by declaring that the partition decree was null and void and not binding on the plaintiffs whose rights and interests were not affected in any way by the said decree. The Learned Trial Judge also granted a permanent injunction restraining defendants 1 to 4 from interfering, in any way, with the plaintiffs' possession in pursuance of the said partition decree. The Lower Appellate Court dismissed the appeal and affirmed the judgment and decree of the Trial Court. ( 4 ) IN the background of the aforesaid facts, two contentions have been raised before me in the present Second Appeal. The first is whether without identification of the plots involved in the present suit as those covered by the partition decree, the impugned decree can be sustained and secondly, whether the plaintiffs are entitle to such a decree without proof of their title with regard to the suit lands particularly when a part of the lands covered by the khatian to which the suit lands pertain me admittedly vested lands and when the Court has found the title of the plaintiffs to 11. 30 acres of land not to have been proved. ( 5 ) AFTER hearing Mr. Dasgupta, in support of the appeal, and Mr. Roychowdhury, on behalf of the plaintiffs/respondents, I am of the view that the decree granted by the Trial Court and affirmed by the Lower Appellate Court is maintainable, though not without modification. As already noted by me hereinabove, the defendants did not raise any dispute about the identity of the suit lands and the lands covered by the partition decree and as such, such a dispute, which is essentially of a factual nature, cannot be allowed to be canvassed at the stage of the Second appeal. On the contrary, upon a proper reading of the pleadings, the said dispute appears to be totally absent therein. I do not find sufficient acceptability in the argument of Mr. On the contrary, upon a proper reading of the pleadings, the said dispute appears to be totally absent therein. I do not find sufficient acceptability in the argument of Mr. Dasgupta that notwithstanding the absence of such dispute in the pleadings, it was incumbent on the plaintiffs to prove such identity of the lands in order to be entitled to get the instant suit decreed. In the context of the admitted fact that the plaintiffs were not impleaded in the partition suit and the undisputed allegation in the Plaint that in enforcement of the partition decree the defendants were trying to oust the plaintiffs from possession, the plaintiffs must be found to be entitled to the declaration asked for. Section 34 of the Specific Relief Act to which emphatic reference had been made by Mr. Dasgupta in justification of his submission that in the absence of proof of title to the lands in dispute a decree as passed should not be passed, in my view, does not have much substance as Section 34 renders a suit declaring entitlement of a person to any legal character maintainable against at any person denying or interested to deny his title to such character. It is well-settled that the said Section is not exhaustive. In the instant case, the pleadings and the materials on record alongwith findings of fact made by the courts below, amply establish that the plaintiffs have an apparent claim of title to the properties involved in the partition decree. That satisfies the test of claim of a legal character and the effect thereof is not nullified even upon a finding that the plaintiffs have failed to prove their title to 11. 38 acres of land out of 14. 72 acres of land as mentioned in the Plaint-schedule. It is not necessary, in such a case, as argued by Mr. Dasgupta, to conclusively prove the title of the claimant. In view of the nature of the allegations on which the plaint is founded, the only requirement for the plaintiffs is to establish a prima facie title with regard to lands covered by the Partition decree. It is enough to ask for a declaration as has been asked in the instant case. Establishment of such criterion would have entitled them to a hearing in the partition suit itself or on satisfaction of such test to be added as parties in such suit. It is enough to ask for a declaration as has been asked in the instant case. Establishment of such criterion would have entitled them to a hearing in the partition suit itself or on satisfaction of such test to be added as parties in such suit. The effect of findings in the present suit does not not conclusively determine the right, title and interest of the contesting parties but merely indicates the-illegality of the partition decree passed in their absence. The difference in effect would become, at once, clear if the consequences emanating from a. decree passed after hearing them and one passed in their absence are compared and the legislative intent of having a complete and effective adjudication, avoiding the miscarriage of justice, are borne in mind. No doubt, however, the decree as passed by the courts below, needs some modification. ( 6 ) IN the result, the appeal is partly allowed by modifying the decree by declaring that the preliminary and final decrees in partition suit No. 26 of 1951 in the Court of the Learned Judge, Jalpaiguri, are not binding on the plaintiffs, whose rights, title and interest are not, affected in any way by the said decree although in view of the nature of the present suit and its limited scope, the findings on the question of the plaintiffs title to the disputed lands must be taken to be only prima facie and not final and conclusive. ( 7 ) IN view of the facts of this appeal, such party will bear his own costs. Appeal allowed in part.