JUDGMENT : Easwaran S., J. 1. The plaintiffs in O.S No.20/2010 on the files of the Sub Court, Thiruvalla, are the appellants. The 1 st plaintiff/ 1 st appellant herein was transposed as additional 4 th respondent during the pendency of this appeal, since he no longer was desirous of prosecuting the matter further and only the 2 nd plaintiff is prosecuting the appeal. This court is called upon to test the concurrent findings in a suit for declaration of title of the 2 nd appellant/2 nd plaintiff instituted by him when faced with a situation where, his property was included in a suit for partition preferred by two daughters of his father from the first wedlock without impleading him as the defendant in the party array. 2. The brief facts necessary for the disposal of the appeal are as follows:- One T.K.Koshy was the owner in respect of item No.1 property as per sale deed No.1793/1974. He executed a Will dated 10.07.1989 to the 1 st plaintiff. T.K.Koshy, the father of the 1 st plaintiff, died on 19.02.1999, after the death of his father, the 1 st plaintiff became absolute owner of the property. Item No.2 belongs to the 2 nd plaintiff by virtue of a settlement deed No.114/1999 of Sub Registrar Office Thiruvalla. The property originally belong to T.K.Koshy, who by virtue of a settlement deed No.1604/1992 and a release deed No.961/1998 of the Sub Registrar Office Thiruvalla, transferred the property to the second wife of T.K.Koshy. Later, the second wife of Shri.T.K.Koshi and the mother of the 2 nd plaintiff gifted the property to the 2 nd plaintiff and thus the 2 nd plaintiff had taken possession of the property and he is continuing therein and has constructed a three- storey building. On the death of Shri.T.K.Koshi, defendents 1 and 2 filed O.S No.174/1999 by impleading the 1 st plaintiff and the second wife of T.K.Koshi, Smt.Mariyamma and sought partition of the plaint schedule property. The suit was decreed and a preliminary decree was passed on 15.09.2003 and later a final decree was passed on 30.09.2008. On the death of Shri.T.K.Koshi, defendents 1 and 2 filed O.S No.174/1999 by impleading the 1 st plaintiff and the second wife of T.K.Koshi, Smt.Mariyamma and sought partition of the plaint schedule property. The suit was decreed and a preliminary decree was passed on 15.09.2003 and later a final decree was passed on 30.09.2008. Only on 29.10.2009 and 8.1.2010, when the defendants came to the plaint schedule property to execute the decree in O.S.No.174 of 1999, the plaintiffs came to know about the above judgment and decree in O.S.No.174 of 1999, because, at the time of the death, the documents were in possession of defendants 1 and 2, the sisters, who took away the documents and later certified copies of the documents were obtained and then only, the fraud played by the defendants was known to the plaintiffs. Accordingly, the present suit was filed contending that the judgment and decree in O.S No.174/1999 is not binding. The defendants resisted the suit and contended that the parties were aware of the proceedings in O.S. No.174/1999 and that they are estopped from contending otherwise. It is further contended that the mother of the 2 nd plaintiff, Smt.Mariyamma was a party to the suit and therefore the 2 nd plaintiff is not entitled to the declaration as sought for. On behalf of the plaintiffs, Exts.A1 to A20 documents were produced and PW1 to PW6 were examined. On behalf of the defendants, Exts.B1 to B7 documents were produced and DW1 to DW5 were examined. Exts.X1 to X7 are the third party exhibits. The trial court on appreciation of the oral and documentary evidence came to the conclusion that the plaintiffs are not entitled to the decree and hence dismissed the suit. On appeal, the First Appellate Court found that, as far as the 2 nd plaintiff is concerned, is entitled to the declaration as sought for, because he was not a party to O.S No.174/1999. But then, it is found that since he has not sought recovery of possession, the declaration cannot be granted because of the Bar under Section 34 of the Specific Relief Act , 1963. Accordingly, the appeal was dismissed. It is against the dismissal of the appeal, the present second appeal is preferred. 3. On 02.12.2015, the appeal was admitted on the substantial questions of law framed in the memorandum of appeal as follows:- 1. Accordingly, the appeal was dismissed. It is against the dismissal of the appeal, the present second appeal is preferred. 3. On 02.12.2015, the appeal was admitted on the substantial questions of law framed in the memorandum of appeal as follows:- 1. When a party approached to the court to set aside the decree and judgment on the ground of fraud or collusion provided under section 44 of Indian Evidence Act whether the judgment and decree hit the subsequent suit under the principle of res judicata. 2. Whether a Final decree can be passed to partition a different property which is not scheduled or stated in the preliminary decree of the suit or even in the plaint. 3. Can a testator's property be partitioned by a decree without set aside the registered and valid will of him when the plaintiff got knowledge about the will before passing preliminary decree. 4. Whether a judgment and decree is sustainable against a person who is not a party in the suit, but he remains the owner of the plaint schedule property at the time of the institution of the suit and thereafter. 4. Heard Shri.Renjith Thampan, the learned Senior Counsel assisted by Shri.K.K.Sethukumar appearing for the appellant and Shri.T.Krishnanunni, the learned Senior Counsel appearing for the respondents. 5. Shri.Renjith Thampan, the learned Senior Counsel appearing for the appellant contended that O.S No.174/1999 was filed by playing fraud on the court. The 1 st plaintiff was described as a person of unsound mind, but later the 1 st plaintiff himself appeared and contended that he has no mental instability. Further the suit was preferred immediately after the death of Shri.T.K.Koshy, the father of the appellant. The decree being obtained by playing fraud and is of a collusive nature, is not binding upon the appellant. The present suit was filed on 10.02.2010 and on 18.02.2010, item No.2 of the plaint schedule was transferred by defendants 1 and 2 to the 3 rd defendant and the assignment deed specifically shows that the possession has not been transferred in favour of the 3 rd defendant, whereas what has been assigned to her is the right to get the final decree in O.S No.174/1999 executed. He took strong exception to the findings of the First Appellate Court that the 2 nd appellant should have sought for recovery of possession, especially since there was no denial on the part of defendants 1 and 2 that the appellant was not in possession of item No.2 of the plaint schedule property. By referring to the oral testimony of DW3, the learned counsel for the appellant tried to substantiate his claim by stating that, when there is an admission on the part of the 3 rd defendant that the appellant herein is still in possession, there was no requirement to claim recovery of possession and therefore the declaratory relief sought for by the appellant is not barred under Section 34 of the Specific Relief Act , 1963. 6. Per contra, Shri.T.Krishnanunni, the learned Senior Counsel appearing for the respondents vehemently countered the submissions of the learned Senior Counsel appearing for the appellant and contended that the findings of the First Appellate Court are perfectly correct and does not call for interference by this Court in exercise of the powers under Section 100 of the Code of Civil Procedure, 1908. It is the specific case of the learned Senior Counsel for the appellant that, whatever be the circumstances pleaded by the appellant, even assuming that he is not bound by the decree under O.S No.174/1999, still, he will have to sue for recovery of possession and then only the suit is maintainable. The learned Senior Counsel further pointed out that from 1999 till 2010, the appellant had no case that he was in possession of the property or he had paid revenue on the property. The conscious act of the appellant in not mutating the property and not remitting tax in the meantime is a clear indication that, he was never in possession of the property. It is in this context that the judgment of the First Appellate Court is required to be accepted. 7. I have considered the rival submissions raised across the Bar, perused the judgments rendered by the courts below and also the records of the case. 8. Since 2 nd appellant alone is prosecuting the case, this Court needs only to answer the first and the fourth question of law alone since the other questions pertain to the 1 st appellant, who is now transposed as a respondent in the appeal. 8. Since 2 nd appellant alone is prosecuting the case, this Court needs only to answer the first and the fourth question of law alone since the other questions pertain to the 1 st appellant, who is now transposed as a respondent in the appeal. At the outset itself this court wishes to notice that, despite the concurrent findings, this court has decided to examine the legal principles emanating out of the facts stated in this case only because of its compulsive nature and also because the appreciation of evidence as well as point of law by the courts below appears to be perverse. The reason as to why the same is perverse is discussed in the following paragraphs. 9. Suffice to say, before delving further, this court must certainly take note of the collusive nature of O.S No.174/1999 on the face of the record and this compelling factor persuaded this Court to look deep into the intricacies projected by both the learned Senior Counsels at the Bar. Though legally speaking, a plaintiff, who is not in possession of the property, cannot maintain a simple suit for declaration and his omission to sue for consequential relief could entail in the dismissal of the suit, this Court must see as to whether the Bar under the Specific Relief Act , 1963, is applicable in the facts and circumstances of the case. 10. It is nobody’s case that the appellant was a party to O.S No.174/1999. Late T.K.Koshy had executed a release deed in favour of his second wife, Smt.Mariyama, who in turn had executed the settlement deed in favour of the appellant. The probability of the case pleaded by the plaintiff looms large, when this Court finds that suit for partition is filed within two months on the death of late T.K.Koshy. The collusive nature of the suit and also the fraudulent act of defendants 1 and 2 in choosing to describe their own brother as a person of unsound mind and later the 1 st plaintiff coming forward before the trial court with an affidavit stating that he is not a person having any mental instability is sufficient for this Court to conclude that what was attempted by defendants 1 and 2 was an illegal gratification and the suit was instituted only to secure unlawful claims over the property. 11. 11. Be that as it may, since the 1 st plaintiff does not intend to proceed further and is seen to be transposed as the 4 th respondent in the appeal, what remains to be considered by this Court is the claim of the appellant herein. 12. The findings of the trial court that the appellant herein is bound by the judgment and decree in O.S No.174/1999 is certainly an extraneous finding, which cannot be supported under any circumstances. Though the learned Senior Counsel appearing for the respondents does not factually dispute the fact that the appellant was not a party to O.S No.174/1999, a feeble attempt was made before this Court to sustain the judgment and decree in O.S No.174/1999 on the ground that Smt.Mariyama, the mother of the 2 nd appellant was a party and therefore, since the appellant herein claims under her, the decree is binding on him. This Court fails to comprehend the sustainability of the aforesaid argument, especially since it is admitted by the parties (defendants in O.S. No.20 of 2010) that the mother had executed the settlement deed in favour of the appellant herein much prior to the institution of O.S No.174/1999. Therefore, the irresistible conclusion is that the judgment and decree in O.S No.174/1999 is not binding upon the appellant. 13. Now what remains to be considered is whether the 2 nd plaintiff ought to have sued for recovery of possession and whether the Bar under Section 34 of the Specific Relief Act , 1963, applies to the facts of the case. Although no specific substantial question of law has been framed on this issue, it is necessary to deal with this issue since, only if this court were to find that the plaintiff need not have sought for a relief for recovery of possession, the first substantial question of law will have relevance. 14. Section 34 of the Specific Act 1963 reads as under: “34. 14. Section 34 of the Specific Act 1963 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 ask 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 someone who is not in existence, and for whom, if in existence, he would be a trustee.” Section 34 entitles a person to approach the court for declaration if that person is entitled to any ‘legal character” or “property”. If either of the above is attempted to be infringed, a suit can be maintained. The object of the proviso is to obviate the necessity for multiple suits by preventing a person from getting a mere declaration of right in one suit and then subsequently seek another remedy without which the declaration granted in the former suit becomes redundant. The crucial question in such cases would be whether it is incumbent upon a plaintiff to ask for further relief . Necessarily it will depend on facts of each case, and such relief must be consequent to the title asserted. In short, the consequential relief must make the declaration granted fruitful. 15. It is interesting to note that the proviso creates a bar on the discretion of the court to grant the declaratory relief, if the plaintiff omits to claim a further relief. It is thus obvious that the further relief must flow from the relief of declaration and if it has no relation to the declaratory relief granted, the proviso will not apply. It is not possible for this court to hold that the proviso must be construed in such a manner that in all cases, the plaintiff is compelled to sue for any or all the reliefs which could possibly be granted to him. It is not possible for this court to hold that the proviso must be construed in such a manner that in all cases, the plaintiff is compelled to sue for any or all the reliefs which could possibly be granted to him. Thus, a plaintiff cannot be barred from getting a declaratory relief merely because he has failed to seek a relief which is not directly flowing from the main relief. 16. Still further, a plaintiff who is not a party to the earlier suit, need not seek for cancellation of the decree. It will suffice if a declaration is sought for to the effect that the decree is not binding on him. It cannot be said that the courts are powerless to grant relief in a given case and in fact, it is their duty to shape the declaration in such a way that they may operate to afford the relief which the justice of the case requires. The courts have power to grant such a decree independently of the requirements of the Section. Section 34 of the Specific Relief Act , 1963, merely gives statutory recognition to a well-recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of courts to give declarations of right in appropriate cases falling outside Section 34 . The grant of declaratory decree under Section 34 of the Specific Relief Act , 1963 is a matter of discretion depending upon the facts of each case. 17. Having summarized the law as above, when this court faces the compelling facts before it, it becomes obvious that a fraud was played by the defendants 1 and 2 on the 2 nd plaintiff inasmuch as the earlier suit was not maintainable without impleading the 2 nd plaintiff and obtaining a final decree in respect of his property. Nobody can dispute the fact that the suit for declaration that the decree in OS No 174/1999 was not maintainable. It will be wholly impermissible for the court to read the provisions of the Specific Relief Act 1963 to the extent it prevents the court from exercising its discretion. Nobody can dispute the fact that the suit for declaration that the decree in OS No 174/1999 was not maintainable. It will be wholly impermissible for the court to read the provisions of the Specific Relief Act 1963 to the extent it prevents the court from exercising its discretion. In a given case, where the facts are of the compelling nature like one presented before this court, adopting narrow interpretation which is sought to be advanced on the side of the respondents 1 to 3 will necessary imply that the court is stamping its approval on a collusive decree obtained by respondents 1 and 2. 18. However, the larger question is whether the plaintiff was entitled to get a declaration or not? It is in this context the question as to whether 2 nd plaintiff had lost possession assumes significance. 19. A perusal of the written statement filed on behalf of defendants 1 and 2 will necessarily shred the light on the dispute. In paragraph 4 of the plaint, there is a categorical assertion by the 2 nd plaintiff that he is in possession of the item No.2 of the plaint schedule property, which is not seen disputed by defendants 1 and 2. Order 8 Rule 5 of the Code of Civil Procedure, 1908, provides that if there is no specific denial by the defendants regarding the plea of the plaintiffs, it is deemed to have been admitted by the defendants. Therefore, this Court is inclined to think that in the absence of any specific denial by defendants 1 and 2, the finding of the First Appellate Court that the 2 nd plaintiff ought to have sought for recovery of possession cannot be sustained. 20. Moving forward, this Court cannot ignore the further compelling fact that the transfer of item No.2 by defendants 1 and 2 in favour of the 3 rd defendant, took place on 18.02.2010, whereas the suit was filed on 10.02.2010. Still further, the deed of assignment specifically shows that what has been transferred in favour of the 3 rd defendant is the right to execute the final decree. The argument of the learned Senior Counsel for the respondents that as soon as a final decree is passed, the 2 nd plaintiff was divested of the title cannot for a moment sustain the scrutiny of law. The argument of the learned Senior Counsel for the respondents that as soon as a final decree is passed, the 2 nd plaintiff was divested of the title cannot for a moment sustain the scrutiny of law. It is true that an Advocate Commissioner was appointed by the Munsiff Court, Thiruvala, in O.S No.174/1999 to identify and allot the properties to the respective parties to the suit. But then, there is a complete lack of evidence on the side of the defendants to prove that the final decree was engrossed in the stamp paper and that the respective sharers took possession of the property allotted to them by the Advocate Commissioner and thereby the 2 nd plaintiff was divested from the possession. Had a delivery been ordered by the Jurisdictional Civil Court allowing the respective shares in O.S No.174/1999 to take possession of the respective shares, it would have been possible for this Court to appreciate the argument of the learned Senior Counsel for the respondents. 21. That apart, the argument of defendants 1 to 3 goes contrary to the terms of assignment deed in favour of the 3 rd defendant. If as contended by the learned Senior Counsel for the respondents, if the property was already taken possession by defendants 1 and 2 in O.S No.174/1999, why did they choose to confer the 3 rd defendant a right to execute the final decree in O.S No.174/1999. This court cannot remain oblivious of the fact that when the 3 rd defendant was examined, she categorically deposed that she has not taken possession of the property and that possession still vest with the plaintiffs. Therefore, when there is a clear admission on the part of the 3 rd defendant that she is not in possession, it is futile for them to contend that the 2 nd appellant ought to have sued for recovery of possession. 22. Further more, the conduct of defendants 1 and 2 does not inspire confidence in the minds of the court. O.S No.174/1999 is a suit for partition, wherein item No.2 of the present plaint schedule is also included and a collusive decree is obtained. It is indisputable that on the date of filing of the said suit, the late T.K.Koshi, had no right title and interest over item No.2. O.S No.174/1999 is a suit for partition, wherein item No.2 of the present plaint schedule is also included and a collusive decree is obtained. It is indisputable that on the date of filing of the said suit, the late T.K.Koshi, had no right title and interest over item No.2. He had already released the rights in favour of his second wife Smt.Mariyama and Smt.Mariyama in turn settled the property in favour of the appellant herein. Therefore, merely because, the defendants included item No.2 property also in O.S No.174/1999 and obtained a decree for partition, is of no consequences qua the appellant herein. In such circumstances, he need only to sue for declaration of title, because, he was never divested of the possession of the property. Once it is held that the judgment and decree in O.S No.174/1999 is not binding upon him, then resultantly, possession follows the title. 23. In a case of the present nature, where the facts are so compulsive enough for the courts below to conclude the fraudulent act of defendants 1 and 2 in scheduling a property, over which they did not have any right title and interest, and it is therefore not possible for the court to mechanically apply the bar under Section 34 of the Specific Relief Act and hold that, since the 2 nd appellant did not sue for recovery of possession, he is not entitled for a decree as prayed for. As aforesaid, once the decree in O.S No.174/1999 is held to be inoperative qua the 2 nd appellant, necessarily the consequences should follow. 24. Viewed in the above perspective, this Court is inclined to hold that the judgments rendered by the courts below are unsustainable under law and vitiated by perverse appreciation of evidence and as well as law. Accordingly, the first and fourth substantial questions of law are answered in favour of the appellant and it is held that the judgment and decree in O.S No.174/1999 of the Munsiff’s Court, Thiruvalla, are not binding upon the appellant herein and will not operate as res judicata for the subsequent suit. The judgment and decree are not sustainable against a person who is not a party to suit, and that the failure of the appellant to sue for recovery of possession will not dis-entitle him to claim the declaratory relief, when he was never divested of the possession. 25. The judgment and decree are not sustainable against a person who is not a party to suit, and that the failure of the appellant to sue for recovery of possession will not dis-entitle him to claim the declaratory relief, when he was never divested of the possession. 25. As an upshot of the discussions, this Court finds that the appellant is entitled to succeed. Accordingly, the appeal is allowed by setting aside the judgment and decree in A.S No.69/2012 on the files of the District Court, Pathanamthitta, and in O.S No.20/2010 on the files of the Sub Court, Thiruvalla. Resultantly, O.S No.20/2010 on the files of the Sub Court, Thiruvalla, will stand decreed in favour of the 2 nd plaintiff such that a decree is granted in favour of the appellant herein/ 2 nd plaintiff declaring his right title and interest over item No.2 of the plaint schedule property and defendants 1 to 3 are consequently restrained by a permanent prohibitory injunction from obstructing the right title and interest of the 2 nd plaintiff/ appellant herein, over the item No.2 of the plaint schedule property. The appellant/ 2 nd plaintiff will be entitled to cost throughout.