ORDER

Heard learned counsel Mr. Kundan Bahadur Singh for the petitioner and learned counsel Mr. Shashi Bhushan Prasad for the respondents.

2. The learned Subordinate Judge-IV, Patna in Title Suit No.451 of 2003 rejected the amendment application filed by the plaintiff-petitioner under Order 6 Rule 17 of the Code of Civil Procedure by order dated 21.03.2015.

3. It appears that the plaintiff-petitioner filed the aforesaid suit praying for declaration of title and non-title of the defendants and further registered sale deed dated 14.02.1970 said to have been executed by Ram Palak Singh in favour of Ram Pukar Singh is without any title, null and void and the deed of gift on which the alleged sale deed based was also null and void and without any title. The plaintiff also prayed for injunction.

4. At the time of argument of the suit the application for amendment was filed by the plaintiff-petitioner seeking the relief for confirmation of possession and/ in alternative of recovery of possession.

5. The court below by the impugned order considering the proviso to Order 6 Rule 17 of the Code of Civil Procedure rejected the amendment application.

6. Learned counsel Mr. Kundan Bahadur Singh for the petitioner submitted that the court below did not consider the fact that the plaintiff is not introducing any new fact nor he is praying for adducing any evidence. The plaintiff is only praying for further relief in the suit i.e. for confirmation of possession or in the alternative for recovery of possession. According to the learned counsel, the plaintiff has filed the amendment application only to avoid any technical objection. In the facts and circumstances of the case, proviso to Order 6 Rule 17 of the Code of Civil Procedure is not applicable.

7. On the other hand, the learned counsel for the respondents relied on the decision of the Supreme Court in the case of Union of India vs. Ibrahim Uddin & Anr., 2013 (1) PLJR 48 SC and submitted that the suit where declaration of title of ownership has only been claimed without claiming possession is hit by the proviso of Section 34 of the Specific Relief Act. The learned counsel further submitted that the relief claimed by way of amendment is also barred under Order 2 Rule 2 of the Code of Civil Procedure.

8. Section 34 of the Specific Relief Act reads as follows: –

"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 some one who is not in existence, and whom, if in existence, he would be a trustee."

9. In view of this provision the Courts have the discretion as to the declaration of status or right. The only exception provided in this Section is the court shall not make any such declaration for status or right where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. Therefore, whether the court shall grant the relief to the plaintiff or not that can be gone into in the judgment itself.

10. It may be mentioned here that it is not a ground for dismissal of the suit or it is not a ground for rejection of the plaint. It is settled principles of law that the amendment, if allowed, always relates back to the date of institution of the suit. In the case of Vinay Krishna vs. Keshav Chandra and another, A.I.R. 1993 Supreme Court 957 the Supreme Court has held that the suit was not maintainable as the plaintiff was not in exclusive possession. Now, therefore