JUDGMENT : M.R. Shah, J. Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Principal Senior Civil Judge, Valsad dated 31/12/2012 passed in Special Civil Suit No. 115 of 2008, by which the learned trial court has dismissed the said suit, appellants herein - original plaintiffs have preferred present First Appeal. 2. Facts leading to the present First Appeal, in nutshell, are as under :- 2.1 That the appellants herein - original plaintiffs instituted Special Civil Suit No. 115 of 2008 against the respondents - original defendants in the court of learned Principal Senior Civil Judge, Valsad for declaration to declare that the plaintiffs have ½ share in the suit property and also to declare that the defendants alone have no right and/or authority to sell the disputed suit suit land/property and also for permanent injunction restraining the defendants from transferring and/or alienating in any manner whatsoever the suit property in question. 2.2. It was the case on behalf of the plaintiffs that the suit land in question which was purchased by selling ancestral property bearing Block No.337 situated at village Fansawada is ancestral property. However, after the death of second wife on 13/1/2000, defendant No.1 joined hands with the defendant No.2 and thereafter first get the names of daughters and son of the defendant No.1 entered in the revenue record and thereafter the daughters have relinquished their share and suit land in question is mutated in the name of original defendant No.1 only. It was further alleged that the defendants are trying to dispose of the suit property to one Kantibhai Zaverbhai Patel for a sale consideration of Rs.40 Lacs and therefore, the plaintiffs issued legal notice upon the defendant No.1 on dated 12/9/2008, which was replied by the defendant No.1. It was further averred by the plaintiffs that the plaintiff has ½ share in the suit property/land and therefore, it was requested to pass decree for declaration to declare that the plaintiffs have ½ share in the suit land/property and that the defendants alone have no right to dispose/sale the suit property. It was also requested to pass decree for permanent injunction as prayed for. 2.3. The suit was resisted by the defendants by filing Written Statement at Ex.13. The defendants denied the averments made in the plaint and denied that the suit land is ancestral property. It was also requested to pass decree for permanent injunction as prayed for. 2.3. The suit was resisted by the defendants by filing Written Statement at Ex.13. The defendants denied the averments made in the plaint and denied that the suit land is ancestral property. It was also specifically denied that the plaintiffs have 1/2 undivided share in the suit property in question, as alleged. 2.4. That the learned trial court framed the issues at Ex.20. 2.5. Both the parties led evidence. On behalf of the plaintiffs, plaintiff No.1 Dileshbhai Gamanbhai came to be examined at Ex.10; Shankarbhai Naranbhai came to be examined at Ex.74 and Ramanbhai Pataliyabhai came to be examined at Ex. 78. The plaintiffs led documentary evidences also. 2.6. That on appreciation of evidence, the learned trial court has specifically held that each have ?th share in the suit property, however, considering section 34 of the Specific Relief Act, as the plaintiffs did not pray for relief of possession, the learned trial court has refused to pass the decree and has dismissed the suit by the impugned judgment and decree. 2.7 Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial court in dismissing the suit, the plaintiffs have preferred the present First Appeal. 3. Mr. K.D. Pandya, learned advocate appearing on behalf of the appellants has vehemently submitted that once the learned trial court has specifically held that the plaintiffs and defendants each of them have ?th undivided share in the suit property in question, merely because the plaintiffs have not prayed for decree for possession and have not sought relief of possession, the learned trial court has materially erred in dismissing the suit. It is submitted that the learned trial court ought to have appreciated that once the declaration as sought for is granted and the suit is decreed, the relief of possession would be consequential relief which can be prayed even in the execution and/or in a subsequent suit. It is submitted that even considering section 34 of the Specific Relief Act, it is the discretion of the learned Judge to grant relief of declaration despite other relief of possession and/or consequential relief is not sought. It is submitted that in the present case the learned Judge has not properly exercised the discretion and/or not exercised the discretion judiciously. It is submitted that even considering section 34 of the Specific Relief Act, it is the discretion of the learned Judge to grant relief of declaration despite other relief of possession and/or consequential relief is not sought. It is submitted that in the present case the learned Judge has not properly exercised the discretion and/or not exercised the discretion judiciously. By making above submissions it is requested to admit/allow the present appeal. 4. Present appeal is opposed by Mr. Pathik Acharya, learned advocate appearing on behalf of the original defendants. It is submitted that as such the impugned judgment and decree passed by the learned trial court in dismissing the suit and not decreeing the suit is absolutely in consonance with the provisions of section 34 of the Specific Relief Act. It is submitted that despite the fact that the defendants are in possession of the suit land in question, the plaintiffs sought the relief of declaration only and no relief for possession has been sought for which could have been asked/prayed for by the plaintiffs, and therefore, considering section 34 of the Specific Relief Act, the learned Judge has rightly dismissed the suit and has rightly not decreed the suit. 4.1 Mr. Acharya, learned advocate appearing on behalf of the original defendants has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Vinay Krishna Versus Keshav Chandra, reported in AIR 1993 S.C. 957 , decision of the Hon'ble Supreme Court in the case of Mehar Chand Das v. Lal Babu Siddique, reported in (2007) 14 SCC 253 : ( AIR 2007 SC 1499 ) and recent decision of the Hon'ble Supreme Court in the case of Venkataraja & Ors. v. Vidyane Doureradjaperumal, reported in 2013 (4) SC J.T. 505 : (AIR 2013 SC (Civ) 1810). By making above submissions and relying upon above decisions, it is requested to dismiss the present appeal. 5. Heard the learned advocates appearing on behalf of the respective parties at length. 5.1 At the outset, it is required to be noted and it is not in dispute and even according to the plaintiffs, the defendants are found to be in possession of the suit property in question. Despite the above, the plaintiffs prayed for decree for declaration and permanent injunction restraining the defendants from disposing of the suit property only. Admittedly, no decree for possession has been sough for. Despite the above, the plaintiffs prayed for decree for declaration and permanent injunction restraining the defendants from disposing of the suit property only. Admittedly, no decree for possession has been sough for. In view of section 34 of the Specific Relief Act, when the learned trial court has dismissed the suit and/or refused to pass decree for declaration, it cannot be said that the learned trial court has committed any error and/or illegality. 5.2 Identical question came to be considered by the Hon'ble Supreme Court in the case of Vinay Krishna (supra). In the case of Vinay Krishna (supra), while considering section 34 of the Specific Relief Act, the Hon'ble Supreme Court has observed and held that in a suit for declaration of share if the plaintiff is found to be not in possession of the property and relief of possession is not claimed, the suit would be barred under section 42 of the Specific Relief Act. It is further observed and held by the Hon'ble Supreme Court in the said decision that failure to ask for the relief of possession, it is the discretion of the Court for granting decree for declaration. In the subsequent decision in the case case of Maher Chand Das (supra) it is observed that if the plaintiff had been in possession, then a suit for mere declaration would be maintainable; logical corollary whereof would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable. 5.3 Recently in the case of Venkataraja and Ors. (supra) the Hon'ble Supreme Court had an occasion to consider identical question and section 34 of the Specific Relief Act. In the case before the Hon'ble Supreme Court though the trial court decided the question of title in favour of the plaintiff, the trial court found that as the plaintiff had filed suit only for declaration of his right in the suit property and since he had not prayed for consequential relief for delivery of possession, suit was held to be not maintainable and was dismissed. On an appeal the appellate court allowed the appeal and decreed the suit by observing that as the appellant/plaintiff had filed the suit for declaration in respect of the suit property in which there were tenants it was not necessary for the plaintiffs to claim any consequential relief for the reason that after obtaining such a declaration appropriate relief could be claimed under the Pondicherry Non-Agricultural Kudiyiruppudars (Stay of Eviction Proceedings) Act, 1980 and thus, there was no need for a separate prayer for recovery of possession, as the same could be asked only under the Special Enactment. On a further appeal before the High Court, the High Court of Madras allowed the appeal and set aside the judgment and order passed by the first appellate court and dismissed the suit holding that the suit filed by the plaintiff was not maintainable. On a further appeal by the plaintiff before the Hon'ble Supreme Court, considering section 34 of the Specific Relief Act, the Hon'ble Supreme Court in para 16 and 17 observed and held as under :- "16. The very purpose of the proviso to section 34 of the Act 1963, is to avoid the multiplicity of proceedings, and so also the loss of revenue of court fees. When the Specific Relief Act, 1877 was in force, the 9th report of the Law Commission of India, 1958, had suggested certain amendments in the proviso, according to which the plaintiff could seek declaratory relief without seeking any consequential relief, if he sought permission of the court to make his subsequent claim in another suit/proceedings. However, such an amendment was not accepted. There is no provision analogous to such suggestion in the Act, 1963. 17. A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest. (Vide Prakash Chand Khurana etc. v. Harnam Singh & Ors., AIR 1973(SC) 2065; And State of M.P. v. Mangilal Sharma, 1998, AIR (SC) 743). In Muni Lal v. The Oriental Fire & General Insurance Co. However, it is obligatory on the part of the defendants to raise the issue at the earliest. (Vide Prakash Chand Khurana etc. v. Harnam Singh & Ors., AIR 1973(SC) 2065; And State of M.P. v. Mangilal Sharma, 1998, AIR (SC) 743). In Muni Lal v. The Oriental Fire & General Insurance Co. Ltd. & Anr., 1996 AIR (SC) 642, This Court dealt with declaratory decree, and observed that "mere declaration without consequential relief does not provide the needed relief in the suit; it would be for the plaintiff to seek both reliefs. The omission thewreof mandates the court to refuse the grant of declaratory relief". In Shakuntla Devi. v. Kamla & Ors., (2005) 5 SCC 390 : (2005 AIR SCW 2203) this Court while dealing with the issue held : "a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if suit for possession based on an earlier declaratory decree is filed, it is open to the defendant to establish that the declaratory decree on which the suit is based is not a lawful decree". Considering the aforesaid decision of the Hon'ble Supreme Court and applying the law laid down by the Hon'ble Supreme Court in the aforesaid decision to the facts of the case on hand and in the present case, the plaintiffs had not claimed consequential relief of possession, though the plaintiffs are not in possession of the suit property and admittedly the defendants are in possession of the suit property in question, considering section 34 of the Specific Relief Act, the suit filed by the plaintiffs is rightly held to be not maintainable and is rightly dismissed. No error has been committed by the learned trial court in dismissing the suit. Under the circumstances, the present appeal lacks merits and the same deserves to be dismissed and is accordingly dismissed. Notice is discharged. However, in the facts and circumstances of the case, there shall be no order as to costs. Appeal dismissed.