This is defendant's appeal against the judgment and decree dated 4.9.80 passed by the learned Assistant District Judge No.2, Cachar at Silchar whereby the plaintiff's appeal against the judgment and decree dated 11.3.1977 passed by the learned trial Court was allowed and the plaintiff's suit was decreed. 2. The plaintiff respondent had filed suit for declaration of tenancy rights, 'confirmation' of possession and injunction in respect of the land in suit, on the allegations, that the plaintiff's father had taken settlement of the land in suit from one Husan Banu who was its owner and had been in its possession. After the death of the plaintiff's father the plaintiff continued in possession and katcha khatian had been issued in his favour. There was objection by the defendant's landlords (the present appellant) and the matter was pending. In order to deprive the plaintiff of his rights, the defendant Nos. 2 - 5 had executed wakf deed of the suit land in favour of' Meherpur' and 'Kanakpur' mosques and the defendant Nos. l and 4 were respectively made its Mutwalli and on pressure the defendant No. l had issued two receipts for rent for 1377 and 1378 B.S. In the year 1971 the plaintiff and his son went to cultivate the land but were obstructed and assaulted for which criminal case was filed. A proceeding under section 145 of the Code of Criminal Procedure ensued. The land was attached and subsequently the proceeding ended in favour of the defendants. Hence,the suit. 3. The defendants resisted the claim and inter alia pleaded that the plaintiff's father or the plaintiff had never taken the settlement of land, that the land in suit had been inherited by defendants 2,3,4 and husband of defendant 5 from Husan Banu and the income from the land was used for the two mosques of Kanakpur and Meherpur. On 13.5.70 two wakf deeds had been executed in favour of the two mosques and defendant Nos.l and 4 were entrusted with its management. The plaintiff asked to cultivate the land in 1969 and was permitted to do so for 2 years for which the receipts for rent were duly issued in the year 1970. When the plaintiff tried to obtain kacha khatian the defendants objected and thereafter there was village panchayat in the village and at the instance of the co-villagers, the plaintiff had relinquished possession on 21.2.71. When the plaintiff tried to obtain kacha khatian the defendants objected and thereafter there was village panchayat in the village and at the instance of the co-villagers, the plaintiff had relinquished possession on 21.2.71. The plaintiff was not in possession of the land. The khatian was also cancelled. The plaintiff never possessed the land as was alleged and had no tenancy right over the suit land. 4. The learned trial Court had framed necessary issues and by judgment and decree dated 11.3.1977 held that the plaintiff had no tenancy right in the land and was not in its possession. The suit was accordingly dismissed. On appeal by the plaintiff, the learned appellate Court below by judgment dated 4.9.1980 took the view that the plaintiff had proved tenancy rights and accordingly the appeal was allowed and the plaintiff's suit was decreed. 5. Aggrieved, the defendants have come in appeal and Shri N.C. Chakraborty, learned counsel appearing on their behalf has submitted that the learned appellate Court below was in error in having taken the view that the plaintiff has tenancy rights in the land in suit, that admittedly the plaintiff was not in possession, of the land and consequently the suit for declaration of right could not be decreed, the plaintiff not having prayed for the consequential relief of possession which he could and should have sued. Shri N.C. Ciiakraborty, learned counsel for the appe­llant has submitted that the learned appellant Court below was in having placed reliance upon Ext.7 series of receipts which had been produced by the plaintiff only after close of his cross-examination and which had not been connected be any proper evidence, with the land in suit. 6. Shri B.K. Acharyya, learned counsel for the respondent on the other hand, has submitted that the appellant No.2 had died but his heirs had not been substituted and hence the appeal had abated, that the learned appellate Court below was correct in taking the view that the plaintiff had tenancy rights in the land in suit and that the defendant's plea that there had been relinquishment of the land in suit was not correct and there was no-reason at all to interfere with the judgment and decree of the learned appellate Court below. Shri Acharyya has also submitted that the plaintiff's statement at the trial that he had been dispossessed during the pendency of the suit should be considered as a whole and it should not be said that since the relief for recovery of possession had not been sought the relief for declaration could not be decreed. Shri Acharyya has submitted that the provisions of section 34 of the Specific Relief Act, 1963 hereinafter referred as the Act were not attracted on the facts of the present case. 7. 1 have considered the submissions for the parties, the judgments of the learned Courts below and the materials on record. 8. The defence plea was that the land in suit having been dedicated to the two mosques was wakf property. This fact was also not disputed by the plaintiff even though it was said that the wakf deed had been executed in order to deprive the plaintiff of his rights and the two receipts Ext.2 and 3 had been issued under pressure. Ext.2 and 3 clearly show that the receipts were issued on behalf of the mosques for payment made by the plaintiff for the land in suit. The plaintiff's version that the said receipts had been executed under some kind of pressure was not clear as to why pressure could be there for the issue of the receipts in the name of mosques. The defendants have produced the wakf deeds Ext.A and B which bear out that the land in suit had been dedicated to the mosques and was as such wakf property. It is true the plaintiff had filed the suit against the defendants, but for that reason the land in suit would not cease to be wakf property more so when Ext.2 and 3 receipts filed by the plaintiff himself also support the defence version that the land in suit belonged to the mosques and was wakf property. In this view of the matter the contention for the appellant that the heirs of appellant No.2 not having been brought on record, the appeal had abated, has no merits. In this view of the matter the contention for the appellant that the heirs of appellant No.2 not having been brought on record, the appeal had abated, has no merits. It may be noted that after the death of the appellant No.2 submission was made on behalf of the other appellants that his heirs were not interested in the matter and that they be arrayed as proforma respondents, accord­ingly direction was made for steps but it appears the matter was not pursued further. However, for reasons stated above that the land was wakf property absence of appellant No.2 was of no material significance in this appeal. 9. The next question for consideration was that whether the view taken by the learned appellate Court below that the plaintiff had tenancy right in the land in suit was justified and tenable in evidence on record. 10. Shri B. K. Acharyya, learned counsel for the respondents has submitted that it was a finding of fact binding on this Court in this second appeal. Shri N. C. Chakrabarty, learned counsel for the appellant has submitted that the finding was not sustainable and hence the evidence on record has to be considered. 11. There was no documentary evidence for the plaintiff to bear out the version of settlement of land with his father. The plaintiff's evidence on 'settlement' was not satisfactory, in that while as PW 1 the plaintiff himself, who claimed to have been then present, testified that there was no 'writing' for settlement of the land. PW 2 Urfan Ali uncle of the plaintiff who claimed to have been present at the time of alleged settlement, stated, that there was 'writing' by which the settlement was made. Considering the contradictory statement by the said two witnesses the version of settlement was not borne out. The plaintiff, except Ext. 2 and 3, had initially not produced any receipts for payment of rent. Admittedly Ext. 2 and Ext. 3 had been issued for 2 years that the plaintiff according to the defence version had been in possession of the land on behalf of the mosques. The plaintiff after the close of his cross-examination had produced receipts Ext. 7 series Ext. 7/!, Ext, 7/2, Ext. 7/3 and Ext. 7/4 pertaining to years 1959 1960, 1961, I960 and 1964. 3 had been issued for 2 years that the plaintiff according to the defence version had been in possession of the land on behalf of the mosques. The plaintiff after the close of his cross-examination had produced receipts Ext. 7 series Ext. 7/!, Ext, 7/2, Ext. 7/3 and Ext. 7/4 pertaining to years 1959 1960, 1961, I960 and 1964. Shri N.C.Chakraborty, learned counsel the appellant has submitted that the said receipts had been suddenly produced after the close of plaintiff's cross-examination, without any reason having been shown why the same could not be filed earlier and in any case by itself could not have led to the conclusion drawn by the learned appellate Court below. The receipts were issued by Gulam Ejdani husband of the defendant No. 5. The learned trial Court had not relied upon the receipts Ext. 7 series on the view taken that Gulam Ejdani could not have issued receipts on behalf of the other land owners for the land had not been shown to be joint property. The learned appellate Court below has held that the view taken by the learned trial Court was not correct, in that one land-owner could on behalf of the other land-owners issue the receipts. While it is true that one co-owner may issue receipts to the tenant on behalf of the other co-owners, the question in the present case was that whether Ext. 7 series of receipts were reliable documents as established the plaintiff's version. The plaintiff as PW j in his statement earlier had stated in cross-examination - "I was 18-19 years at that time. Now I am 50-56 years old. My uncle was with us at that time not as witness. No receipt was received in the year 45 B.S., but rent was paid. The rent was paid 14-15 years without receipts." The plaintiff denied the suggestion that he had cultivated some other land of Ejdani for which the said receipts had been given. Considering that the plaintiff, had earlier stated that rent was paid 14-15 years without receipt, that Ext. No receipt was received in the year 45 B.S., but rent was paid. The rent was paid 14-15 years without receipts." The plaintiff denied the suggestion that he had cultivated some other land of Ejdani for which the said receipts had been given. Considering that the plaintiff, had earlier stated that rent was paid 14-15 years without receipt, that Ext. 7 series of receipts had not been produced earlier but were produced after the close of the cross examin­ation of the plaintiff and further that there was no proper evidence to connect the said receipts with the land in suit, I think the learned trial Court was correct in not having relied upon the receipts though for other reason and the learned appellate Court below was not justified in its finding on the Exr. 7 series of receipts. 12. Shri B.K.Acharyya, learned counsel for the respondent has argued that receipts Ext. 7 series had been connected by the plaintiff's denial of the suggestion in cross-examination. In my opinion, denial of suggestion in cross-examination that the receipts were in respect of some other land of late Gulam Ejdani was not sufficient to take the view that the receipts, particularly when it was claimed that the plaintiff's father and the plaintiff had been in possession of the land in suit from 1345 B.S, and there were no receipt for the earlier or the latter period, had been proved to relate to the land in suit. In any case, rent receipts by themselves even otherwise are not enough to establish tenancy. There was hardly any reliable evidence on the plaintiff's claim to long possession of the land. The plaintiff had stated about his possession but obviously his statement in the facts of the case could not be considered sufficient and reliable. PW 2 his own uncle was highly interested person and could also not be considered reliable and PW 3 who had been examined for the plaintiff could hardly even identify the land in suit as such his evidence was not accepted by the learned trial Court. On the strength of this kind of oral evidence which was not accepted by the trial Court and was not even considered by the learned appellate Court below it was difficult to accept plaintiff's contention that he had been in possession of the land in suit for a long time. 13. On the strength of this kind of oral evidence which was not accepted by the trial Court and was not even considered by the learned appellate Court below it was difficult to accept plaintiff's contention that he had been in possession of the land in suit for a long time. 13. The learned counsel for the plaintiff respondent has submitted that it was admitted fact that the plaintiff cultivated the land for 2 years and the defence version that there was relinquishment was not correct and plaintiff's version was rightly accepted by the learned appellate Court below. The submission is not acceptable firstly because the plaintiff has to succeed on the strength of his own evidence and just because the defence version was that the land had been given to the plaintiff for only 2 years for cultivation which was well borne out from the receipts Ext. 2 and 3 filed by the plaintiff himself, it did not make the plaintiff's case probable much less establish it. The learned counsel for the respondent submitted that version of relinquishment was not borne out from the receipt dated April 11 for rent could not have been paid after relinquishment in February 71 besides there could be no relinquishment unless it took place with the end of agricultural year. In my opinion, the plaintiff's version about the execution of wakf deeds Ext. A and B and the receipts Ext. 2 and 3 as under pressure could not be accepted as correct, for there hardly any reason for the defendants, the present appellants to take the stand that the land" in suit had been wakf property if indeed it was not dedicated to said mosques. Besides, rent receipts Ext. 2 and 3 substantiated the defence version that the plaintiff had cultivated the land as licensee for just 2 years and had paid for it to the defendants for the mosques. The submission for the respondent plaintiff that there could not be surrender or relinquishment unless it coin­cided with the expiry of the agricultural year was not tenable, because it pre-supposed existence of tenancy rights in favour of the plaintiff respondent which was not established by any satisfactory evidence. The submission for the respondent plaintiff that there could not be surrender or relinquishment unless it coin­cided with the expiry of the agricultural year was not tenable, because it pre-supposed existence of tenancy rights in favour of the plaintiff respondent which was not established by any satisfactory evidence. The mere fact that one receipt was issued in April, 1971 whereas it was stated that relinquish­ment had taken place in February, 1971 was hardly such a circumstance as to belie the defence version, for payment of the amount due after the defendants had taken back possession of the land from the plaintiff could be probable and there was nothing inherently improbable in the payment having been made later even though the plaintiff had given up possession earlier. I, therefore find nothing improbable in the defence version as may, as said earlier, support the plaintiff respondent's case of tenancy in support of which there was hardly any reliable evidence of settlement, for payment of rent or from any revenue records. The receipts Ext. 7 series in my opinion for the reasons already stated earlier were not reliable evidence as could be made the basis for the finding recorded by the learned appellate Court below. 14. For the aforesaid reasons, I am inclined to think that the learned appellate Court below committed grave error in reversing the view taken by the learned trial Court and in coming to the finding that the plaintiff respondent had established tenancy right in the land in suit, l he finding of the learned trial Court was correct that the plaintiff had failed to establish his tenancy rights in the land in suit. 15. It may also be noted that the plaintiff had filed suit for declaration of tenancy rights and confirmation of possession. The relief for recovery of possession was not prayed for. It was, however admitted by the plaintiff in his statement as PW 1 that he had been dispossessed from the land in suit even though I e said it was during the pendency of suit in the trial Court, after temporary injunction granted by the learned trial Court had been vacated by the appellate Court. The defence version was that, but for afore­said two years, the plaintiff was never in possession. The receipts Ext. 2 and 3 bear out the defence version. The defence version was that, but for afore­said two years, the plaintiff was never in possession. The receipts Ext. 2 and 3 bear out the defence version. The proceedings under section 145 of the Code of Criminal Procedure, even though commenced by the plaintiff's brother for the plaintiff had ended in favour of the defendants, which led to the institution of the suit. It was therefore difficult to believe that the plaintiff was in possession of the land, on the date of the suit and was dispossessed later during the pendency of the suit. The plaintiff had not said so at the time i. e. immediately after he was, if at all, so dispossessed. In his deposition he admitted he was out of possession but said he was dispossessed. It was difficult to accept this version. 16. The fact established in any case, therefore was that on the date the learned appellate Court below granted the decree of declaration of rights the plaintiff was not in possession of the land in suit. Even if the plaintiff's version of his dis-possession may for the sake of arguments be accepted as correct the plaintiff could have even by amendment in the plaint, sought the further or consequential relief of recovery of possession, but not having done so, under the proviso to section 34 of the Act the relief for mere declaration of tenancy rights could not be granted to the plaintiff respondent. 17. Shri B. K. Acharyya, learned counsel for the respondent strenuously contended that there was no such requirement in law for declaration of tenancy rights and the provisions of section 34 of the Act on the facts of the present case were not attracted. On the facts stated by the plaintiff respondent, in the absence of any other law under which only declaration sought could be granted, the law under which the said relief could be allowed was in the provisions of section 34 of the Act and consequently its proviso was clearly attracted. 18. Sri B. K, Acharyya, learned counsel for the respondent has cited Mst. 18. Sri B. K, Acharyya, learned counsel for the respondent has cited Mst. Rukhmabai vs. Lai a Laxminarayan, AIR 1960 SC 335 where in para 29 of the judgment, it was held that such plea should be raised at the earliest point of time for in which event the plaintiff could ask for necessary amendment to comply with the provisions of section 42 (now section 34) of the Act. It was a case of declaration of joint ownership rights without the relief of partition and it was held that the relief could be granted even if partition was sought. In the present case the defence plea was that the plaintiff was not in possession and the learned trial Court had also recorded the finding that the plaintiff had not been in possession. The learned appellate Court below has not considered the matter. The plea thus was raised that the plaintiff was not in possession, and the law in section 34 of the Act could be applied. Ranga Rao vs. Channappa Basappa, AIR 1975 Karnataka 155 was also cited where consequential relief had been asked for but was not granted and it was held that the proviso would not bar grant of declaration only, because the plaintiff had asked for the consequential relief, but the Court did not grant it and hence the bar did not operate, The autho­rity is not applicable on the fact of the present case where the relief for possession was not even asked for. Smti. Nirmala Sundari Dutta Chaudhury vs. K. B. Deb, AIR 1976 Gauhati 58 was also cited but there is nothing therein as may be of any assistance to the respondent. 19. The plaintiff respondent in the present case was not in possession and in any case admittedly was not in possession on the date the decree for Declaration could he granted, but the plaintiff not having sought the further or consequential relief of recovery of possession under the proviso to section 34 of the Act no Court make the mere declaration of rights. Besides earlier during the hearing of the appeal when this question was raised, the learned counsel for the respondent had sought time to take appropriate steps in the matter, but later stating that it was not necessary had declined to do so. 20. Besides earlier during the hearing of the appeal when this question was raised, the learned counsel for the respondent had sought time to take appropriate steps in the matter, but later stating that it was not necessary had declined to do so. 20. Shri B. K. Acharyya, learned counsel for the respondent contended that on the date of suit the plaintiff was in possession but was dispossessed later and hence the relief for declaration could not be refused. The plaintiff version as said before was not accepted by the trial Court. The appellate Court below did not go into the question. It was therefore not established that the plaintiff was dispossessed during the pendency of the suit. The principle invoked is not attracted on the facts of the present case. 21. For the aforesaid reasons, the impugned judgment and decree of the learned appellate Court below cannot be sustained and have to be set aside. The appeal is allowed. The impugned judgment and decree of the learned appellate Court below are set aside and that of the learned trial Court are restored. The parties shall, bear their own costs.