Harish Tandon, J.

1. This revisional application is directed against an order dated. 24.5.2010 passed by learned Civil Judge (Jr. Division), Second Court, Sealdah in Title suit No. 157 of 2006 by which an application for dismissal of the suit being not maintainable is rejected.

2. By executing and registering a deed of lease the Defendant / Petitioner demised unto predecessor-in-interest of the Plaintiff / Opposite Party all that a flat measuring an area of 1942 Sq fit on the third floor at premises No. 16, Beniapukur Road, Calcutta-700014 for a period of 30 years commencing from the date of handing over the possession which would be handed over upon completion of the construction of the third floor.

3. It is alleged in the plaint that the construction of the third floor is complete but the Defendant / opposite party is not handing over the possession in terms of the registered deed of lease. On the basis of the aforesaid fact the relief sought for in the plaint of the said Title Suit No. 157/2006 by the Plaintiff / opposite party is the decree for declaration that the registered deed of lease dated. 1.6.1987 is valid and binding and the Defendant / Petitioner is liable to hand over the possession of the demised property in terms of the said lease deed and a decree for permanent injunction restraining the Defendant / Petitioner to let out and create any third party interest in respect of the property in question.

4. The Defendant/Petitioner after entering appearance filed an application challenging the maintainability of the suit inter alia on the ground that a relief as sought for recovery of possession in the plaint can be made upon the payment of requisite Court fee, the registered lease deed cannot be enforced without the prayer for specific performance of contract and in view of the non existence of the alleged suit property the question of enforcement of any right does not arise.

5. The said application was opposed by the Plaintiff / opposite party contending that the suit as framed is maintainable and the ground which has been taken requires factual investigation and as such at this stage the suit cannot be dismissed.

6. Mr. Jiban Ratan Chatterjee, learned senior advocate appearing for the Defendant / Petitioner submits that the suit is not maintainable in view of Section 34 of the Specific Relief Act. He further submits that proviso to Section 34 of the said Act have created an embargo on the Court to grant relief in absence of any further relief than mere declaration of the status.

7. Further reliance is placed upon a judgment of the Apex Court in case of N.V. Srinivasa Murthy -Vs- Mariyamma reported in : 2005 (5) SCC 548 [LQ/SC/2005/673] for the proposition that in absence of other relief than a mere relief for declaration the suit is not competent under Section 34 of the Specific Relief Act.

8. Per contra, Mr. Mahendra Prasad Gupta, learned advocate appearing for the Plaintiff / opposite Party submits that the suit as framed is maintainable and Section 34 is not a bar. He further submits that the Court, while considering an application for maintainability of the suit, should not embark to consider the other relevant document but should restrict itself to the averment made in the plaint. In support of such contention he relied upon the following judgments:

1 Balasaria Construction (P) Ltd. -Vs-Hanuman Seva Trust and Ors. reported in 2006 (5) SCC

2 Kamala and Ors. v. K.T. Eshawara S.A.Sah and Ors. reported in : 2008 12 SCC 661 [LQ/SC/2008/1019] .

3 C. Natarajan v. Ashim Bai reported in 2007 14 SCC 183 [LQ/SC/2007/1242] .

9. He further contends that the Court fee is a matter between the Plaintiff and the State and relies upon a judgment of this Court in case of Paresh Chandra Nath -Vs-Naresh Chandra Nath and Ors. reported in : 2006 (1) CHN 526. [LQ/CalHC/2005/733]

10. Lastly it is contended that if the principle relief is the declaration of Title, the relief of permanent injunction and recovery of possession are consequential relief and relies upon a judgment of this Court in case of Sri Kartick Mondal and Ors. v. Biman Sen and Ors. Reported in 2008 3 W.B.L.R. (Cal) 238 and a Division Bench judgment of this Court in case of Ratna Mala Dasi and Ors. v. Ratan Singh Bawa reported in : AIR 1990 Cal 26 [LQ/CalHC/1988/141] .

11. Having considered the respective submission of the parties it would be profitable to quote the relief claimed in the plaint, which are as follows:

The Plaintiff, therefore, prays:

a) For a decree for declaration that the registered deed of lease dated.

1.6.1987 executed between the Defendant as lessor & the predecessor of the Plaintiffs as lessee is valid, binding and subsisting and the Defendant is liable to hand over the possession of the leased hold property in accordance with the terms and conditions of the lease deed;

b) For a decree for Permanent Order of Injunction for restraining the Defendants & their men & agents from creating any third party interest &/or to render possession to any other persons other than the Plaintiffs;

c) For Temporary Order of Injunction with ad interim Rule 1 similar effect in terms of prayer (b);

d) For all cost of the suit

e) For any other relief or reliefs.

12. It is undisputed that the parties have entered into a deed of lease which was duly registered. Section 5 of the Transfer of Property Act contemplates that the property can be transferred either in present or future. Section 105 of the Transfer of Property Act recognizes the transaction between the lessor and the lessee within the ambit of Transfer of Property as defined in Section 5 of the said Act.

13. On execution and registration of the lease deed, transfer has already been complete but such transfer is to take effect from a future date. The right has already been created by virtue of such transfer as sought to be claimed by the Plaintiff / opposite party. The declaration of his right on the strength of such transfer with the consequential relief of recovery of possession and a permanent injunction cannot be said to be hit by Section 34 of the Specific Relief Act. As has been held in case of Sri Kartick Mondal and Ors. (Supra) that if the relief of possession and permanent injunction is prayed along with the relief of declaration of title, such a suit is not hit by Section 34 of the Specific Relief Act.

14. It is a settled law that while considering the application for rejection of the plaint the court should confine itself to the averments made therein and shall not look into other documents or statement which do not form part of the plaint as has been held by the apex court in case of Balasaria Construction (P) Ltd. (supra) Kamala and Ors. (supra) and C. Natarajan (supra). Had it been a case where an agreement for lease or agreement of sale of the immovable property is sought to be imposed before the court by seeking mere declaration that the said agreement is binding authority or enforceable, without any further prayer seeking specific performance of the said agreement, the contention of Mr. Chatterjee does not require any scrutiny. The law which has been laid down by the single bench of this Court in case of Smt. Anjana Gupta v. Hemant Kumar Pathak (CO 402 of 2010) an unreported judgment that in absence of any further prayer for specific performance of an agreement for sale of the immovable property the suit for mere declaration is hit by Section 34 of the Specific Relief Act is distinguishable on fact of the instant case. The Plaintiff/opposite party is not seeking to enforce an agreement but seeking recovery of possession on the strength of declaration of title which claimed to have been passed on the strength of the registered lease deed.

15. The Division Bench in case of Ratna Mala Dasi and Ors. (Supra) held that Section 34 is not exhaustive of the cases in which a declaratory decree may be made and the court has a The other point taken that the requisite Court fee has not been put in by the Plaintiff is also not sustainable. The matter concerning the Court fee is a matter between the Plaintiff and the state if the Court upon adjudication finds that the proper Court fee has not been put in, the Court shall permit the Plaintiff to put in the deficit Court fee but the suit on such score cannot said to be not maintainable at the stage of Order 14 Rule 2 of the Code.

16. This Court is informed by the parties that the written statement has already been filed by the Defendants. It is however made clear that the Defendant / Petitioner shall be entitled to agitate all points including the point of maintainability of the suit at the time of final disposal of the suit.

17. The Trial Court shall make efforts to dispose of the suit as expeditiously as possible without granting unnecessary adjournments to either of the parties.

18. The revisional application is accordingly dismissed.

19. There shall be No. order as to costs.

20. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.