By the Court:- ANIL KUMAR CHOUDHARY, J. 1. Heard the learned senior counsel for the appellants. 2. This second appeal under Section 100 of Code of Civil Procedure has been preferred against the judgment and decree dated 31.07.2017 passed by the learned District Judge-XII, Hazaribagh in Title Appeal No.15 of 2013 whereby and where under the learned District Judge-XII, Hazaribagh has dismissed the appeal on contest and affirmed the judgment and decree dated 12.03.2013, passed by the learned Civil Judge (Junior Division), Hazaribagh in Title Suit No. 165 of 1996. 3. The brief fact of the case is that the plaintiffs filed the suit for declaration of their title in respect of Schedule A of the suit property and cost of the suit. 4. The case of the plaintiffs in brief is that Preetam Mahto was the owner of the suit property. In the cadastral survey, the land was recorded in the name of his wife Most. Kudhni. After the death of Preetam Mahto, Kudhni and their son Lekho Mahto came in exclusive possession of the suit land. The plaintiffs pleaded that Kudhni died in the year 1926. Lekho Mahto, his son Bhaju and granddaughter Rewali Devi continued in possession over the entire lands of Khata No.9 paying rent to the ex-landlord and after vesting of Zamindari, paid rent to the State. The wife of Lekho namely Sugia sold the land measuring 7.45 units by virtue of registered deed of sale. Rewali and her sons are continuing in joint possession over the land but under separate title and they obtained rent receipts from the Sate in respect of the lands of Khata No.9, 10 and 1/80. The plaintiffs pleaded that on 18.06.1996, the defendants came across the sale deed bearing no. 1774/1940 executed by Kudhni and the said sale deed is a forged and fabricated document and claimed that the plaintiffs have derived title and possession of the suit land. 5. The defendant nos. 1 to 10 in their joint written statement challenged the maintainability of the suit on various technical grounds. The defendants denied the entire case of the plaintiffs and pleaded that Khudni acquired Khata No. 9 & 10 and the same was in her exclusive possession and accordingly the same was recorded in the cadastral survey settlement operation. The defendants pleaded that Most. Khudni, wife of Preetam Mahto executed the sale deed no. The defendants denied the entire case of the plaintiffs and pleaded that Khudni acquired Khata No. 9 & 10 and the same was in her exclusive possession and accordingly the same was recorded in the cadastral survey settlement operation. The defendants pleaded that Most. Khudni, wife of Preetam Mahto executed the sale deed no. 1774 dated 09.05.1940 in favour of Mohan Mahto, Lokhan Mahto, Gyani Mahto, Moli Mahto and Haso Mahto for a consideration of Rs.300/- and the vendors were put in possession of the land sold and the sale deed is a valid one. The defendants pleaded that Most Khudni died in the year 1948 and on 09.05.1940, besides the said sale deed, she executed a registered Hibanama bearing registration no. 1773 in favour of Lekho Mahto, son of Bharat Mahto. Mohan Mahto died in the year 1944 leaving behind his wife and son Bajo Mahto, who is the defendant no.2, as his legal heirs and after the death of wife of Mohan Mahto, Bajo Mahto came in exclusive possession of the land purchased by Mohan Mahto. Similarly, Dhelo Mahto being the son and defendant no.10 of the suit, inherited the property of Haso Mahto. The five sons of Lokhan Mahto being defendant nos. 3 to 7 inherited the property of Lokhan Mahto after his death in the year 1950-52. Moli Mahto sold 0.06 acres of land to Hero Mahto by virtue of sale deed dated 20.05.1952 and after the death of Moli Mahto, his sons being Neru Mahto and Bago Mahto who are respectively the defendant nos. 8 & 9 inherited his property. Gyani Mahto, defendant no.1 was one of the original purchasers of the said sale deed. In her written statement, the defendant no.11 Most. Sugia who is the proforma defendant, supported the case of the plaintiffs. 6. On the basis of the rival pleadings of the parties, the following issues were settled by the learned trial court:- “(i) Whether the suit is maintainable in the present form? (ii) Whether the plaintiff has any valid cause of action for this suit? (iii) Whether the suit is barred by adverse possession, Law of Limitation, waiver, acquiescence and estoppel? (iv) Whether the suit is bad for misjoinder and non-joinder of necessary parties? (v) Whether the suit is barred under the provisions of Section 34 of the Specific Relief Act? (ii) Whether the plaintiff has any valid cause of action for this suit? (iii) Whether the suit is barred by adverse possession, Law of Limitation, waiver, acquiescence and estoppel? (iv) Whether the suit is bad for misjoinder and non-joinder of necessary parties? (v) Whether the suit is barred under the provisions of Section 34 of the Specific Relief Act? (vi) Whether the plaintiffs have valid right, title interest over the suit land as prescribed in Schedule A of the land? (vii) Whether the plaintiffs are in possession over the entire suit land as mentioned in Schedule A of the plaint? (viii) Whether the plaintiffs are entitled for any other relief or reliefs as claimed?” 7. In support of their case, the plaintiffs’ altogether examined nine witnesses and proved the documents which have been marked Ext. 1 to 5; whereas from the side of the defendants, altogether five witnesses were examined and the defendants proved the documents which have been marked Ext. A to D/1. 8. The learned trial court first took up issue nos. iv, v, vi & viii together and after considering the evidence in the record, came to the conclusion that the plaintiffs have failed to establish their title over the suit land and the plaintiffs have filed a suit for declaration of title without any consequential relief and answered the issues against the plaintiffs. Thereafter, the learned trial court took up the remaining issues and held that the suit is barred under Section 34 of the Specific Relief Act. The suit is not maintainable in its present form and plaintiffs have no valid cause of action for the present suit and they are not entitled to any relief and dismissed the suit. 9. Being aggrieved by the Judgment and Decree passed by the learned trial court, the appellants preferred Title Appeal No. 15 of 2013 in the court of Principal District Judge, Hazaribagh which was ultimately heard and disposed of by the learned District Judge –XII, Hazaribagh by the impugned Judgment. The learned District Judge –XII, Hazaribagh framed the following five points for determination:- “(A) Whether the learned lower court has passed the Judgment and Decree dated 12.03.2013 in accordance with law and facts or the same requires interference? The learned District Judge –XII, Hazaribagh framed the following five points for determination:- “(A) Whether the learned lower court has passed the Judgment and Decree dated 12.03.2013 in accordance with law and facts or the same requires interference? (B) Whether the defendants have been in possession of the suit land on the basis of the sale deed executed by Khudni Devi in favour of defendant no.1 –Gyani Mahto and the ancestors of other defendants? (C) Whether Lekho Mahto is the son of Preetam Mahto or he is the son of the earlier husband of Khudni Devi namely Bharat Mahto? (D) Whether the suit is barred by Section 34 of the Specific Relief Act? (E) Whether Sugia Devi has any right for executing the sale deeds in favour of the plaintiffs and on the basis of the same, the plaintiffs have acquired right, title, interest over the suit land?” 10. The learned District Judge-XII, Hazaribagh, made independent appreciation of the evidence in the record and relevant law and took up points for determination B, C & E together and after making independent appreciation of the evidence in the record, came to the conclusion that Khudni Devi has sold 5.95 acres of land out of Khata No.9 recorded in her name in favour of defendant no.1 and the ancestors of rest of the defendants and on the basis of the same, the purchasers came in possession of the suit land and Khudni Devi executed the gift deed in favour of her son Lekho Mahto, on the basis of which, Lekho Mahto and his descendants-being the plaintiffs are in possession of half of the land of Khata No.9. The learned first appellate court also considered that though the plaintiff no.1 –Rewali Devi has admitted that she had the knowledge about the sale deed executed by Khudni in the year 1940 but she did not make any prayer to declare the said sale deed null and void and illegal. In view of the sale deed executed by Khudni Devi having not been declared void, the sale deed executed by Sugia has become illegal. Hence, the sale deed executed by Sugia is of no value and by that no right, title and interest accrued to the plaintiffs. The learned first appellate court further considered that the plaintiff failed to establish its case of having right, title and interest over the suit property in any manner. Hence, the sale deed executed by Sugia is of no value and by that no right, title and interest accrued to the plaintiffs. The learned first appellate court further considered that the plaintiff failed to establish its case of having right, title and interest over the suit property in any manner. Hence, the learned trial court has rendered the judgment in accordance with law and answered the points for determination B, C & E against the plaintiffs and in favour of the defendants. Thereafter, the learned first appellate court took up point for determination no. A & D and held that the suit is barred by section 34 of the Specific Relief Act and dismissed the appeal and affirmed the judgment and decree passed by the learned trial court. 11. It is submitted by the learned senior counsel for the appellants that the first appellate court has seriously erred in ignoring the provisions of Section 50 and 60 of the Evidence Act and erred in deciding the points against the respondents. It is then submitted that the learned District Judge erroneously held that the suit is barred by Section 34 of the Specific Relief Act. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be decreed after formulating appropriate substantial question of law. 12. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that Section 50 of the Evidence Act envisages that when the court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to existence of such relationship of any person, who, as a member of the family or otherwise has special means of knowledge on the subject, is a relevant fact. The essential requirements of Section 50 of the Evidence Act are that :- (i) There must be a case where the court was to form an opinion on relationship with one person to another; (ii) In such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (iii) Where the person whose opinion expressed by conduct is relevant must be a person who is the member of the family or otherwise has special means of knowledge on the particular subject of relationship. As has been held by the Hon’ble Supreme Court of India in the case of Dolgobinda Paricha v. Nimai Charan Misra and others, reported in AIR 1959 SC 914 , para -6 & 7 of which reads as under:- “6. We proceed to consider the second question first. The Evidence Act states that the expression "facts in issue" means and includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follow; "evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry; and (2) all documents produced for the inspection of the Court. It further states that one fact is said to be relevant to another when the one is connected with the other in any one of the ways referred to in the provisions of the Evidence Act relating to the relevancy of facts. Section 5 of the Evidence Act lays down that evidence may be given in any suit or proceeding of the existence or non- existence of every, fact in issue and of such other facts as are declared to be relevant and of no others. It is in the context of these provisions of the Evidence Act that we have to consider S. 50 which occurs in Chapter II, headed "Of the Relevancy of Facts". Section 50, in so far as it is. relevant for our purpose, is in these terms : "Section 50. It is in the context of these provisions of the Evidence Act that we have to consider S. 50 which occurs in Chapter II, headed "Of the Relevancy of Facts". Section 50, in so far as it is. relevant for our purpose, is in these terms : "Section 50. When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact". On a plain reading of the section it is quite clear that it deals with relevancy of a particular fact. It states in effect that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The two illustrations appended to the section clearly bring out the true scope and effect of the section. It appears to us that the essential requirements of the section are - (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. Now, the "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. We are of the view that the true scope and effect of section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299 at p. 309 : ( AIR 1943 Cal 76 at p. 80). ’’It is only ’opinion’ is expressed by conduct which is made relevant. This is how the conduct comes in. The offered item of evidence is ’the conduct’, but what is made admissible in evidence is the opinion, the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision : its immediate effect is only to move the Court to see if this conduct establishes any ’opinion’ of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer ’the opinion’, the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the ’opinion’. When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, ’the opinion of a person’. It still remains for the Court to weigh such evidence and come to its own opinion as to the ’factum probandum’- as to the relationship in question." We also accept as correct the view that S. 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship : ’Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC 201. 7. It is necessary to state here that how the conduct or external behaviour which expresses the opinion of a person coming within the meaning of S. 50 is to be proved is not stated in the section. The section merely says that such opinion is a relevant fact on the subject of relationship of one person to another in a case where the Court has to form an opinion as to that relationship. Part II of the Evidence Act is headed "On Proof". The section merely says that such opinion is a relevant fact on the subject of relationship of one person to another in a case where the Court has to form an opinion as to that relationship. Part II of the Evidence Act is headed "On Proof". Chapter III thereof contains a fascicule of sections relating to facts which need not be proved. Then there is Chapter IV dealing with oral evidence and in it occurs S. 60 which says inter alia : "Section 60. Oral evidence must, in all cases whatever, be direct; that is to say- if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds." If we remember that the offered item of evidence under S. 50 is conduct in the sense explained above, then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in S. 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of S. 50, and it must be proved in the manner laid down in the provisions relating to proof. It appears to us that that portion of S. 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of S. 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. It appears to us that that portion of S. 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of S. 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under S. 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of S. 60. This, in our opinion, is the true inter-relation between S. 50 and S. 60 of the Evidence Act. In Queen Empress v. Subbarayan, ILR 9 Mad 9 at p. 11, Hutchins J., said : "That proof of the opinion, as expressed by conduct, may be given, seems to imply that the person himself is not to be called to state his own opinion, but that, when he is dead or cannot be called, his conduct may be proved by others. The section appears to us to afford an exceptional way of proving a relationship, but by no means to prevent any person from stating a fact of which he or she has special means of knowledge." While we agree that S. 50 affords an exceptional way of proving a relationship and by no means prevents any person from stating a fact of which he or she has special means of knowledge, we do not agree with Hutchins J., when he says that the section seems to imply that the person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called. We do not think that S. 50 puts any such limitation.” The said Judgment has also laid down the principles regarding Section 60 of the Evidence Act. 13. We do not think that S. 50 puts any such limitation.” The said Judgment has also laid down the principles regarding Section 60 of the Evidence Act. 13. Now coming to the facts of the case, no serious dispute of relationship is involved in this suit except as to whether, Lekho is the son of Bharat Mahto, the earlier husband of Khudni or he is the son of Preetam Mahto and the same is of not much importance. The crux of the dispute is whether the sale deed executed by Khudni in favour of defendant no.1 and ancestors of the defendant nos. 2 to 11 is valid and if the same is valid, obviously the sale deed executed by Sugia in favour of defendant cannot confer any right, title and interest upon the plaintiffs as once, it is held that Khudni has transferred the property to the defendant no.1 and the ancestors of defendant nos. 2 to 11, Sugia was not having any right, title and interest left with her on the day she executed sale deed in favour of the plaintiffs. Thus, in the considered opinion of this Court, both the courts below having not committed any error in ignoring the provisions of Section 50 and 60 of the Evidence Act. 14. So far as the contention of the learned senior counsel for the appellants regarding the suit being hit by Section 34 of the Specific Relief Act is concerned, it is pertinent to refer to Section 34 of the Specific Relief Act, 1963 which reads as under:- “ 34 . Discretion of Court as to declaration of status or right .- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit as for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation .- A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.” 15. The bare perusal of Proviso of Section 34 of Specific Relief Act, 1963 reveals that it mandates that no court shall make any declaration under Section 34 of the Specific Relief Act, 1963 where the plaintiff being able to seek further relief than the mere declaration of title, omits to do so. Here, in this case, the plaintiffs except for declaration of right, title and interest has not sought any other consequential relief though it was found that there is dispute regarding the possession of the plaintiffs and in fact, the courts below upon appreciation of the evidence have held that the defendants are in possession of the suit land. 16. The Hon’ble Supreme Court of India in the case of Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar vs. Chandran reported in AIR 2017 SC 1034 observed that if a plaintiff only seeks declaratory reliefs without seeking the relief of confirmation of possession or recovery of possession, wherever there is scope for seeking such relief, such suit is not maintainable, in para-35 and 36 of as under:- “35. In the present case, the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trial court. In this context the reference is made to the judgment of this Court reported in Ram Saran and Anr. v. Smt. Ganga Devi, AIR 1972 SC 2685 , wherein paras 1 and 4 following was stated: "1. This is a plaintiffs’ appeal by special leave. Ram Saran and Raghubir Saran, the plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer widow of Lalita Prasad. After the death of Chhabili Kuer on February 8, 1971, Ganga Devi the defendant in the suit came forward as the legal representative of Chhabili Kuer and got the mutation effected in her name in the place of the deceased Chhabili Kuer. In 1958, the plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession either of the entire or even any portion of the suit properties. 4. In 1958, the plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession either of the entire or even any portion of the suit properties. 4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable." 36. The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. Plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit.” (Emphasis supplied) 17. Thus in view of the settled principle of law, this Court has no hesitation in holding that both the courts below having not committed any illegality by holding that the suit is barred by Section 34 of the Specific Relief Act; by filing the suit for declaration only, when there was scope for praying for the relief of recovery of possession; in view of the dispute regarding possession of the parties to the suit land. 18. Because of the discussions made above, this Court has no hesitation in holding that there is absolutely no substantial question of law involved in this appeal. 19. Accordingly, this appeal being without any merit is dismissed.