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3. Learned counsel appearing for the respondent 1/defendant 1 supports the impugned judgment and decree passed by First Appellate Court and prays for dismissal of the second appeal. He submits that as the plaintiff in his suit, has not claimed any relief of declaration of title on the basis of Will dtd.22/06/2001, therefore, there was no occasion to grant negative declaration in favour of the plaintiff and First Appellate Court has rightly reversed the judgment and decree passed by Trial Court. In support of his submissions, he placed reliance on the decision of Hon'ble Supreme Court in the case of Bachhaj Nahar vs. Nilima Mandal and Another, (2008) 17 SCC 491.

(iii) The plaintiffs chose to seek a negative declaration that 'defendants have no right, title or interest in the suit properties' and not a positive declaration that plaintiffs were the owners in possession of the suit properties. The reason why they chose to seek such a negative prayer is obvious. Any positive prayer for declaration of their title would have been barred by principles of res judicata. The maintainability of a claim for such a negative declaration is also doubtful."

12. Again in the case of HARDESH ORES PVT. LTD v. M/S. HEDE AND COMPANY, (2007) 5 SCC 614, the Hon'ble Supreme Court has, while considering the question of negative declaration, held as under:-

"39. We are of the view that the respondent is right in contending that enforcement of the negative covenants presupposes the existence of a subsisting agreement. As noticed earlier, the law is well settled that the renewal of an agreement or lease requires execution of a document in accordance with law evidencing the renewal. The grant of renewal is also a fresh grant. In the instant case, the appellant-plaintiff did exercise their option and claimed renewal. The respondents denied their right to claim renewal in express terms and also unequivocally stated that the agreement did not stand renewed as contended by the appellants. Having regard to these facts it must be held that a cause of action accrued to the appellant-plaintiff when their right of renewal was denied by the respondents. This happened in December, 2001 and, therefore, within three years from that date they ought to have taken appropriate proceedings to get their right of renewal declared and enforced by a court of law and/or to get a declaration that the agreement stood renewed for a further period of 5 years upon the appellants' exercising their option to claim renewal under the original agreement. The appellants-plaintiffs have failed to do so. However, the plaint proceeds on the assumption that the original agreement stood renewed including the negative covenants contained in clauses 15 and 20 of the original agreement which authorised only the appellants to extract ore from the mine with an obligation cast on the respondents-defendants not to interfere with the enjoyment of their rights under the agreement. In the facts of this case, in the suit prayer for injunction based on negative covenants could not be asked for unless it was first established that the agreement continued to subsist. The use of the words "During the subsistence of this agreement" in clause 15, and "during the pendency of this indenture" in clause 20 of the agreement is significant. In the absence of a document renewing the original agreement for a further period of 5 years and in the absence of any declaration from a court of law that the original agreement stood renewed automatically upon the appellants exercising their option for grant of renewal, as is the case of the appellants, they cannot be granted relief of injunction, as prayed for in the suit, for the simple reason that there is no subsisting agreement evidenced by a written document or declared by a Court. If there is no such agreement, there is no question of enforcing clauses 15 and 20 thereof. The appellants ought to have prayed for a declaration that their agreement stood renewed automatically on exercise of option for renewal and only on that basis they could have sought an injunction restraining the respondents from interfering with their possession and operation. Having not done so, they cannot be permitted to camouflage the real issue and claim an order of injunction without establishing the subsistence of a valid agreement. In the instant suit as well they could have sought a declaration that the agreement stood renewed automatically but such a claim would have been barred by limitation since more than 3 years had elapsed after a categoric denial of their right claiming renewal or automatic renewal by the respondents-defendants."

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.

The provision states the person is entitled for the prayer of declaration to declare the person has right over the property. Therefore, any suit filed for negative declaration that the other person is not having right cannot be maintained and if claimed the same is against the provisions of section 34. Further the judgment in R.N.Shanmugavadivel's case the Hon'ble Court had held that negative prayer cannot be sought to usurp the title to the property without seeking for proper declaration of his right and title to the property. Applying the provision of section 34 and the aforesaid judgment this Court is of the considered opinion that the negative prayer in the suit is only to usurp the title."