1 SA391/2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 391 OF 2006 Subhaschand s/o Manikchand Borundiya Appellant V E R S U S Bhavarlal s/o Amolkchand, deceased through L.Rs. Nawalchand Bhavarlal and others Respondents Shri A.H Kasliwal, Advocate, holding for Smt. Netrali N. Jain, Advocate for the appellant Shri B.A. Darak, Advocate for respondent Nos. 1/1 Shri S.E. Siddiqui, Advocate for respondent Nos.1/3, ¼, 3 & 4 CORAM : A.V. NIRGUDE, J. DATED : 26th July, 2011 ORAL ORDER : 1. This appeal is filed against the concurrent findings of the Courts below that the prayer clause of the plaint is impermissible and illegal in view of Section 41 (d) & (h) of the Specific Relief Act. 2. The peculiarity of this case is that at the trial stage, though the relief sought in the plaint, as said above, was technically incorrect, the respondents / defendants appeared before the Court and gave their consent for passing of such decree. The Courts below however refused to pass the decree, because, as said above, such relief was not possible in view of Section 41 of the Specific Relief Act. The learned Advocate appearing for the appellant therefore sought leave to file a fresh suit under Order II Rule 2 of the Code of Civil Procedure. The respondents do not object for granting such relief. Therefore, the appeal is dismissed with liberty to the appellant / plaintiff to file a fresh suit for seeking declaration of title and perpetual 2 SA391/2006 injunction etc in respect of the suit property on the same cause of action, as pleaded in the plaint. ( A.V. NIRGUDE, J. ) SRM/sa/391/06/26/7/11