JUDGMENT : 1. This is defendant's appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as 'CPC') arising from judgment and decree dated 16.08.1978 passed by Sri M. C. Jain, Ist Additional District Judge, Ghazipur in Civil Appeal No.73 of 1977 whereby appeal was allowed and judgment and decree dated 30.04.1977 passed by Sri S. N. Pandey, IIIrd Additional Munsif, Ghazipur in Original Suit No.127 of 1967 was set aside and suit of plaintiffs was decreed. 2. This appeal was admitted on following two substantial questions of law:- “(i) Whether the relief of declaration could be granted without being sought? (ii) Whether the relief of declaration simplicitor without granting the relief for possession be granted?” 3. Record shows that plaintiff instituted Original Suit No. 127 of 1967 vide plaint in the Court of Munsif, Ghazipur seeking following reliefs :- ^^¼v½ olnwj fMxzh eqnb;ku dks dCt+k n[ky Åij edku r] [k] t] > ;k ml tqt t+ehu eqtkgjk cg:Q d] [k] x] ?k eqtkgjk uD+'kk tSy vftZukfy'k ftlls eqnb;ku dh csn[kyh vnkyr ds lehi eqrlOoj gS o csn[kyh eqn~nkysgwe Qfjd vOoy fnyok fn;k tk,A ¼c½ dqy [kpkZ eqdnek ftEek eqn~nkysgwe vk;n fd;k tk,A** “(A) That a decree of possession be passed in favour of plaintiffs over house shown by letters 'Ta', 'Kha', 'Ja', 'Jha' or part of land shown by letters 'Ka', 'Kha', 'Ga' and 'Gha' in the site map at the bottom of suit in question after dispossessing defendant no.1 for which plaintiffs' suit is under consideration before this Court. (B) Total cost of suit be imposed upon defendants.” (English Translation by Court) 4. Plaintiff Parasram Singh, Sarjoo Singh, Sheo Devi Singh, Ram Janam Singh, Ram Chandra Singh impleaded Dasai Ahir, Jagganath Sonar, Smt. Dhania, Bhagwati, Smt. Mueshwari and Shiv Parson as defendants and instituted above suit for possession over house in dispute after eviction of defendants Dasai, Jagganath, Smt. Dhania, Bhagwati i.e. defendants 1 to 4. 5. Admittedly, pedigree as given in Lower Appellate Court (hereinafter referred to as “LAC”) is as under : Munnu Komal Bishwanath Bindeshwari (Smt. Dhania alias Ghutani) Bhagwati 6. The plaint case set up by plaintiffs is that land, shown by letters “ka, kha, ga, gha, and house by letters “ta, kha, ja, jha”, situated in village-Karanda, District-Ghazipur, was 'Dih' of said village and its partition took place in 1905. The plaint case set up by plaintiffs is that land, shown by letters “ka, kha, ga, gha, and house by letters “ta, kha, ja, jha”, situated in village-Karanda, District-Ghazipur, was 'Dih' of said village and its partition took place in 1905. At that time, land in dispute and that beneath the disputed house came to be numbered as 307, 308 and 318. House of Komal existed on part of such land and rest was left as Sahan. Komal by profession was a goldsmith and died about 60 years before filing of suit i.e. sometimes in 1917. His son Bishwanath predeceased him. Before death, Komal, due to his old age, kept with him one Ram Gulam resident of village-Mudiari, who was son of his sister, to look after Komal in his old age. After death of Komal, Ram Gulam returned to his village, but used to visit village-Karanda to see his relatives thereat. Bindeshwari son of Bishwanath also took up profession of goldsmith after death of Komal. About 14 or 15 years before filing suit, Bindeshwari also died. At the time of his death, his son Bhagwati was minor. Bindeshwari's widow Smt. Dhania kept with her Lali son of Ram Gulam to help her in running the household. Lali had come along with wife Muneshwari. Smt. Dhania and her son Bhagwati could not do well to maintain them and in the meantime, their house also fell down and became 'khandahar' except 'Osari' shown by letters “ta, kha, ja, jha” in the plaint map. On 08.03.1967 Defendants II Set i.e. Smt. Dhania, widow of Bindeshwari, executed a sale deed of disputed house in favour of plaintiffs and put them in possession thereof. Thereafter, vendors left village-Karanda and migrated to village-Rampur Majha to earn their livelihood. Lali and his wife Muneshwari lived in the disputed house as licensees. Lali died about 2 years before filing of suit and his son Sheo Parson, defendant 6 went to live at Tatanagar for his livelihood and used to stay in disputed house, whenever he happened to visit village-Karanda to meet his mother. About 6 or 7 months before filing of suit, Sheo Parson took away her mother Muneshwari along with him to Tatanagar. At the time of leaving for Tatanagar, defendants first set were also residing in the disputed house as licensees. About 6 or 7 months before filing of suit, Sheo Parson took away her mother Muneshwari along with him to Tatanagar. At the time of leaving for Tatanagar, defendants first set were also residing in the disputed house as licensees. Later at the time of executing sale deed dated 08.03.1967, defendants second set asked defendants first set to vacate the house, but they started telling that the house belonged to Defendants III Set and refused to vacate. The suit was, therefore, filed stating that Defendants I and III Set have no right over disputed house and they were simply licensees of Defendants II Set and disputed property be evicted and possession should be handed over to plaintiffs. 7. Defendants I Set contested the suit and gave their own family tree as under : Chhotak Sonar Ram Gulam Komal Lalparikha alias Lali Chabbu Parsottam Bishwanath Muneshwari Bindeshwari Chutani (Wife) Shiv Parson Bhagwati (son) 8. Defendants I set pleaded that Ram Gulam was not resident of village-Mudiari. He was brother of Komal. Since, Komal was elder, therefore, in record, his name was shown as owner of disputed house. The house was property of Joint Hindu Family comprising of Komal and Ram Gulam. Defendant III set being descendants of Ram Gulam were old residents of village-Karanda. Ram Gulam was in possession of disputed house as co-sharer, owing to ½ share therein. Remaining ½ share belonged to defendants II set being representatives of branch of Komal. ½ share of Ram Gulam devolved upon his branch which is represented by defendants III set. About 15 years back, defendants II set left village-Karanda and migrated to village-Rampur Majha. At the time of migration, defendant II set abandoned and surrendered all their rights in disputed house and, therefore, defendants III set became exclusive owners in possession. Defendants III set put defendants I set in possession of disputed house as they themselves used to live at Tatanagar. Whenever defendants III set used to visit disputed house, they stayed there. On 23.01.1957, Smt. Muneshwari, defendant 5 executed sale deed in favour of defendants I set in respect of her share in disputed house. Another sale deed was executed on 18.03.1967 by Sheo Parson, defendant 6 i.e. son of defendant 5 in favour of defendants I set in respect of his share in disputed house. On 23.01.1957, Smt. Muneshwari, defendant 5 executed sale deed in favour of defendants I set in respect of her share in disputed house. Another sale deed was executed on 18.03.1967 by Sheo Parson, defendant 6 i.e. son of defendant 5 in favour of defendants I set in respect of his share in disputed house. With execution of these two sale deeds, defendants I set acquired exclusive ownership and possession of dispute house. Defendants II set or plaintiffs have no claim or right or interest therein. Sale deed claimed to be executed by defendants II set in favour of plaintiffs is a spurious document. Suit was barred by time, principle of estoppel and acquiescence. 9. Trial Court formulated seven issues as follows :- ^^1- D;k fookfnr edku ,oa laifRr Áfroknh uEcj 3 o 4 ls Fkh ;k Áfroknh uEcj 5 vkSj 6 ds Fkh\ 2- D;k fookfnr laifRr ds Lokeh oknhx.k gS vFkok Áfroknh la[;k 1 vkSj 2 gSa\ 3- D;k okn ifjlhfer le; ls ckf/kr gS\ 4- D;k okn focU/ku ,oa ekSu laifr ls cfyr gS\ 5- D;k okn dk ewY;kadu de fd;k x;k gS\ 6- D;k dksVZ Qhl vi;kZIr nh xbZ gS\ 7- D;k oknh dksbZ vuqrks"k ikus ds vf/kdkjh gS\** “1. Whether disputed house and property owned by defendants no. 3 and 4 or defendants no. 5 and 6? 2. Whether owners of disputed properties are plaintiffs or defendants no. 1 and 2? 3. Whether the suit is barred by limitation period? 4. Whether the suit is barred by principle of estoppel and acquiescence? 5. Whether the suit undervalued? 6. Whether the court fees given is insufficient? 7. Whether the plaintiff is entitled for any relief?” (English Translation by Court) (Emphasis Added) 10. Issues 4, 5 and 6 were answered as preliminary issues. Thereafter issue 1 was taken up and Court held that disputed property belong to defendants 5 and 6. Issue 2 was answered by holding that disputed property belong to defendants 1 and 2. Consequently, Original Suit was dismissed vide judgment and decree dated 30.04.1977. There against plaintiffs preferred appeal which has been allowed. 11. LAC formulated two points for determination as under : “1. Whether the defendant II set had any interest of ownership left in the disputed property capable to transfer to the plaintiffs ? 2. Whether the plaintiffs could be granted any relief ? If so, what ?” 12. There against plaintiffs preferred appeal which has been allowed. 11. LAC formulated two points for determination as under : “1. Whether the defendant II set had any interest of ownership left in the disputed property capable to transfer to the plaintiffs ? 2. Whether the plaintiffs could be granted any relief ? If so, what ?” 12. First point for determination was answered in favour of plaintiffs-appellants holding that Defendant IInd set had ½ share in disputed property at the time of execution of sale deed dated 08.03.1967 by them in favour of plaintiffs and as such, this much share being capable to transfer by them to plaintiffs, was transferred. Thereafter, point 2 was also answered in favour of plaintiffs holding them entitled for declaration of title and possession thereof. Consequently, appeal was allowed. 13. Heard Sri Bipin Lal Srivastava, Advocate holding brief of Sri S. K. Verma, learned counsel for appellant and Sri L. S. Srivastava, learned counsel for respondent. 14. Learned counsel for appellant contended that LAC has made out a new case and though no relief of declaration was sought, still relief of declaration has been granted in respect to disputed property and thereafter, suit for possession has been decreed. It is said that it was impermissible and in this regard, he placed reliance on this Court's judgment in Param Sukh Lal vs. Gaya Din, 1969 A.L.J. 766 and Supreme Court's judgment in Rao Saheb vs. Rangnath Gopalrao Kawathekar and others, (1972) 4 SCC 181 . 15. The facts, not in dispute, are that, at the time of filing of suit, entire disputed house was in possession of Defendants I set. Plaintiffs claim that entire house belonged to Defendants II set. Thereafter, pursuant to sale deed dated 08.03.1967, plaintiffs became owners of entire property, hence, entitled for delivery of possession from Defendants I set. Pleading of Defendants I set is that as per family tree, Defendants III set and I set both had 50 % share. By virtue of sale deeds dated 23.01.1957 and 08.03.1967 executed by Defendants 5 and 6 in favour of Defendants I set, and Defendants II set abandoned and surrendered their rights, therefore, Defendants I set are owner of the entire property. Therefore, 50 % share of Defendants II set was also admitted by Defendants I set, who were in possession of disputed house. Therefore, 50 % share of Defendants II set was also admitted by Defendants I set, who were in possession of disputed house. They claimed to have acquired right in disputed property, which belonged to Defendants II set, on the ground that it was abandoned and surrendered, but no such evidence has been placed before Courts below. Sale deed dated 08.03.1967 executed by Defendants II set in favour of plaintiffs is also on record and duly proved. Therefore, it cannot be said that a new case has been made out by LAC. Instead it formulated the question, “whether there was any share of Defendants II set in disputed property”, and, “whether such share could have been transferred to plaintiffs by Defendants II set”. 16. Since, share of Defendants II set, was not disputed by Defendants I set, and they could adduce no evidence to show that Defendants I set acquired share of Defendants II set, in any legal manner, Defendants II set were entitled and well within their right to execute sale deed transferring their share to plaintiffs. In the facts and circumstances of this case, LAC has recorded a correct finding and thereafter suit for possession to the extent of share of Defendants II set, in the disputed property, has been decreed by reversing judgment and decree of Trial Court. It was an incidental issue necessary to adjudicate before considering the main issue. 17. I am clearly of the view that no new case has been made out by Court below. Therefore, judgments relied by learned counsel for appellant that a new case could not have been made out, are not applicable in the case in hand. 18. Court below has rightly held, following decision in Ali Raza Khan Vs. Nawazish Ali Khan, AIR (3) 1943 Oudh 243, that a suit filed for possession of a larger part of property, if is found sustainable in respect of smaller or lesser part of property or it is found that there is a joint right of parties, such a decree can be passed and it does not amount to make out a new case. 19. The principle recognized above I find so embedded in Order VII Rule 7, CPC which reads as under : “7. 19. The principle recognized above I find so embedded in Order VII Rule 7, CPC which reads as under : “7. Relief to be specifically stated.-Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claim by the defendant in his written statement.” 20. This principle was considered in Khagendra Narain Chowdhry vs. Matagini Debi, (1890) ILR 17 Cal.814. Two Zamindars were claiming exclusive ownership over certain source of water (Sota). Both filed cross suits. Sub-ordinate Judge decided in favour of one of the parties i.e. Zamindars of Mechpara. High Court deferred with the Sub-ordinate Judge and held that both parties have failed to prove title to the exclusive possession of Sota in question. High Court dismissed both suits. When the matter went to Privy Council, it held : “Their Lordships arrive at the same conclusion as the High Court with regard to insufficiency of proof given either by the zemindars of Mechpara or by the zemindars of Chapar as to the right and title to the exclusive possession of sota in question. But their Lordships are of the opinion that the decrees of the High Court cannot be supported as pronounced by the High Court. They are of the opinion that, although neither party has proved a title to an exclusive possession, there can be no doubt that possession belongs to zemindars of Mechpara and to the zemindars of Chapar. The evidence in the opinion of their Lordships is insufficient, as already stated, to establish an exclusive possession by either of the parties. On the other hand, it is equally cogent in their Lordships' opinion to show that there is possession between the two. The result that their Lordships arrive at is that the decrees of the Subordinate Court and of the High Court should be respectively reversed, and each of the parties be declared entitled to an equal moiety of the sota opposite to and adjoining their respective zemindaris, and be decreed to be put into possession thereof accordingly.” (emphasis added) 21. The result that their Lordships arrive at is that the decrees of the Subordinate Court and of the High Court should be respectively reversed, and each of the parties be declared entitled to an equal moiety of the sota opposite to and adjoining their respective zemindaris, and be decreed to be put into possession thereof accordingly.” (emphasis added) 21. In the above matter, in none of the suits filed by two parties joint possession was claimed but still Privy Council granted decree of joint possession. 22. In Muthu Ramakrishna Naicken v. Marimuthu Goundan and another, AIR 1914 Mad 128 (DB), it has been held in last para of judgment: “Though the suit is one of ejectment, a decree for joint possession may be passed.” 23. In Mahammad Ismail Saheb and another vs. Rasool Bi and others, AIR 1930 Madras 567, suit was filed for exclusive possession, however it was decreed for joint possession and Court directed that parties might file suit for partition. 24. In Pandohi Ahir vs. Faruq Khan and another, AIR 1954 All 191 , suit for possession was filed. High Court held that prayer clause in the plaint was not properly worded and the Courts below had also not given due consideration to the decree which should have been passed holding that one of the defendants was co-sharer. The claim of the plaintiff was decreed for joint possession even though no prayer for joint possession was made. 25. In Managobinda v. Brajabandhu Misra, AIR 1986 Ori 281 , Court held that if exclusive ownership is claimed but joint ownership is proved, suit can be decreed for joint ownership. That was a case for exclusive title. 26. In Pendyala Narasimham vs. Pendyala Venkata Narasimha Rao, AIR 1963 AP 78 , Court held that there are decisions from which the principle emerges that a suit for ejectment can be regarded as one for partition if the plaintiff was found entitled to it even in the absence of an alternative claim. 27. 26. In Pendyala Narasimham vs. Pendyala Venkata Narasimha Rao, AIR 1963 AP 78 , Court held that there are decisions from which the principle emerges that a suit for ejectment can be regarded as one for partition if the plaintiff was found entitled to it even in the absence of an alternative claim. 27. In Gangaram Ramachandra vs Butrusao, AIR 1952 Nagpur 202 , a Division Bench held : “We can see no reason why as suit for exclusive possession of 16 annas cannot be turned into a suit for partition and possession of such share as may be determined to belong to the plaintiff if defendants contend, or it is found that the plaintiff is not entitled to the whole but only to a part.” 28. Considering the scope of Order VII Rule 7 C.P.C. in Smt. Neelawwa Vs. Smt. Shivawwa AIR 1989 Kar. 45 , a Division Bench observed: “The normal rule that relief not founded on the pleadings should not be granted is not without an exception. Where substantial matters constituting the title of all the parities are touched in the issues and have been fully put in evidence the case does not fall within the aforesaid rule. The Court has to look into the substance of the claim in determining the nature of the relief to be granted. Of course, the Court while moulding the relief must take care to see that relief it grants is not inconsistent with the plaintiff's claim, and is based on the same cause of action on which the relief claimed in the suit, that it occasions no prejudice or causes embarrassment to the other side; that it is not larger than the one claimed in the suit, even it the plaintiff is really entitled to it, unless he amends the plaint; that it had not been barred by time on the date of presentation of the plaint.” “No doubt the plaintiff has sought for exclusive title and he has not been able to prove his exclusive title; but has been able to prove, that he is entitled to a half share in the suit properties. When a party claims exclusive title to the suit property and is liable to establish that he is entitled to half of the suit property, it will not be unusual for the Court to pass a decree for partition and possession of his half share. When a party claims exclusive title to the suit property and is liable to establish that he is entitled to half of the suit property, it will not be unusual for the Court to pass a decree for partition and possession of his half share. In fact such a relief flows from the relief prayed for in the plaint that he is the exclusive owner of the entire property. When a larger relief is claimed and what is established, is not the entire relief claimed in the suit but a part of it, as whole includes a part, larger relief includes smaller relief, and it also arises out of the same cause of action.... Therefore, even if a separate suit has to be filed for partition, the defendant does not have any sustainable defence. Therefore no prejudice will be caused to the defendant/ respondent if a preliminary decree for partition and separate possession is passed in this suit itself.” (Emphasis added) 29. Relief of declaration and injunction is discretionary but it is the duty of the Court to administer justice between the parties and not to convert itself into instrument of injustice or an engine of oppression. In Executive Committee of Vaish Degree College, Shamli and others Vs. Lakshmi Narain (supra) the Court said: "27. . . . . . the relief of declaration and injunction under the provisions of the Specific Relief Act is purely discretionary and the plaintiff cannot claim it as of right. The relief has to be granted by the court according to sound legal principles and ex debito justitiae. The court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. In these circumstances, while exercising its discretionary powers the court must keep in mind the well settled principles of justice and fairplay and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum." 30. In American Express Bank Ltd. Vs Calcutta Steep Co. and Others, (1993) 2 SCC 199 , Court said: "22. Undoubtedly declaration of the rights or status is one of discretion of the court under Section 34 of the Specific Relief Act, 1963. Equally the grant or refusal of the relief of declaration and injunction under the provision of that Act is discretionary. and Others, (1993) 2 SCC 199 , Court said: "22. Undoubtedly declaration of the rights or status is one of discretion of the court under Section 34 of the Specific Relief Act, 1963. Equally the grant or refusal of the relief of declaration and injunction under the provision of that Act is discretionary. The plaintiff cannot claim the relief as of right. It has to be granted according to sound principles of law and ex debito justicia. The court cannot convert itself into an instrument of injustice or vehicle of oppression. While exercising its discretionary power, the court must keep in its mind the well settled principles of justice and fair play and the discretion would be exercised keeping in view the ends of justice since justice is the hall mark and it cannot be administered in vacuum. Grant of declaration and injunction relating to commercial transactions tend to aid dishonesty and perfidy. Conversely refusal to grant relief generally encourages candour in business behaviour, facilitates free Row of capital, prompt compliance of covenants, sustained growth of commerce and above all inculcates respect for the efficacy of judicial adjudication. Before granting or refusing to grant of relief of declaration or injunction or both the court must weigh pros and cons in each case, consider the facts and circumstances in their proper perspective and exercise discretion with circumspection to further the ends of justice." 31. Order VII Rule 7 is very widely worded. It enables Courts to pass a decree for partition of suit property in place of declaration of title of immovable property and possession thereof where it finds that plaintiff is not entitled to all interest claimed by him in the suit property. In such a situation there is nothing unusual in giving relief to the parties by directing partition of suit property according to share of parties established in the suit. Normal rule that relief not founded on the pleadings should not be granted is not without any exception. Where substantial matters constituting title of all the parties are touched in the issues and have been fully proved in evidence, the case does not fall within the aforesaid rule. Court has to look into substance of the claim in determining the nature of relief to be granted. Where substantial matters constituting title of all the parties are touched in the issues and have been fully proved in evidence, the case does not fall within the aforesaid rule. Court has to look into substance of the claim in determining the nature of relief to be granted. Of course, Court while moulding the relief must take care to see that relief, it grants, is not inconsistent with the plaintiff's claim, and is based on same cause of action on which the relief is claimed in the suit, that it occasions no prejudice or causes embarrassment to the other side; that it is not larger than the one claimed in the suit, even if the plaintiff is really entitled to it, unless he amends the plaint; that it had not been barred by time on the date of presentation of plaint. 32. In the present case, plaintiff sought for exclusive title and possession but he was not able to prove his exclusive title. However, he was able to prove that he is entitled to half share in suit properties. When a party claims exclusive title to suit property and is able to establish that he is entitled to half of the suit property; it would not be unusual to the Court for passing decree of partition and possession of his half share. In fact such a relief flows from the relief prayed for in the plaint that he is the exclusive owner of the entire property. When a larger relief is claimed and what is established, is not the entire relief claimed in the suit but a part of it, as whole includes a part, larger relief includes smaller relief, and it also arises out of the same cause of action. Therefore, in such a situation nothing can prevent Court to pass decree for partition in order to avoid another suit for partition and to give relief to the party in confirmity with the right he had established. 33. Therefore, in such a situation nothing can prevent Court to pass decree for partition in order to avoid another suit for partition and to give relief to the party in confirmity with the right he had established. 33. It is true that in a suit where plaintiff is not in possession of property and only declaration is sought, such suit for declaration is barred in view of Section 34 of Specific Relief Act, 1963 (hereinafter referred to as 'Act, 1963') but where suit for possession is filed and a dispute about title is raised by defendant and that question being incidental is decided by Court, it cannot be said that it amounts to make out a new case for declaration and such suit is not maintainable. 34. I have already shown that the Trial Court on the basis of pleadings of parties formulated two questions (1) and (2), as to whether, plaintiffs or defendants have title over the property or not and answered the same. Similarly, LAC also formulated first point for determination on this aspect and in the light of evidence on record, there is categorical finding, founded on evidence and even admission of parties that Defendants II set had 50% share in disputed property as admitted by Defendant I set. Therefore, what could have been transferred by Defendants II set to plaintiffs is that much property to which they had any share and not beyond that. To term it as declaration and making out a new case is clearly erroneous, since it is necessarily and integrally connected incidental issue, mostly found in a case where parties fight for possession over some immovable property and before granting relief of possession, rival claim of title becomes necessary to be decided by Courts below. 35. Hence, both substantial questions of law as formulated above, are answered against appellant. No other point has been raised before this Court. 36. Appeal lacks merit. Dismissed with costs. 37. Interim order, if any, stands vacated.