the plaintiff, clearly recorded a finding that the defendant is in possession of the suit property, but held that since the defendant has no title, on the basis of Exs.D-1 to D-4, the possession is not valid and therefore reversed that finding. Once it is held that the plaintiff is not in possession of the suit property, the suit has rightly been held by the trial Court to be hit by proviso to Section 34 of the Specific Relief Act, 1963. As such, the first appellate Court could not have reversed the judgment & decree of the trial Court merely on the basis of holding that possession of the defendant is not legal particularly for two reasons. Firstly, the trial Court while dismissing the suit of the plaintiff to be hit by proviso to Section 34 of the Specific Relief Act, 1963, simultaneously also recorded a finding that the plaintiff is not the title holder, as such, the first appellate Court could not have decreed the suit of the plaintiff by holding that possession of the plaintiff is not legal, as it has not been held by the first appellate Court that the plaintiff is title holder of the suit property. Secondly, the documents of the defendant particularly, Exs.D-3 & D-4 – patta granted in favour of the defendant, have not been assailed by the plaintiff in his suit, yet the first appellate Court held that these documents cannot be relied upon and decreed the suit.
