Arun Kumar Jha, J.—The present civil miscellaneous petition has been preferred for setting aside the order dated 15.02.2023 passed in Title Suit No. 487 of 2021 by the learned Sub Judge-1, Bhagalpur whereby and whereunder the learned trial court rejected the application filed by the plaintiff/petitioner under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’).

2. The facts of the case, as appearing from the record, are that the petitioner is one of the plaintiffs before the learned trial court and has filed Title Suit No. 487 of 2021 for declaration of title and confirmation of possession with respect to Schedule-1 land of the plaint in favour of the plaintiffs and against the defendants. The suit property is a service lane land situated in Mohalla-Jogsar, Chandi Prasad Lane, Ward No. 20, Thana- Kotwali, District- Bhagalpur, which is attached to the kitchen garden as well as house of the plaintiffs situated and constructed on Plot No. 428, Khata No. 553, measuring an area of 7 katha 4 dhur and leading to the government road in the east. This service lane is said to be 90 feet long and 12 feet wide covering an area of 1080 sq.feet. One Ram Narayan Tiwary was the common ancestor of the plaintiffs, who purchased, by way of registered sale deed dated 27.10.1944, the property described hereinbefore under Plot No.438 on which the house of the plaintiffs is situated. The suit property is a private rasta described as ‘gali niz wo waste aamadraft mehtarani’ in the sale deed dated 27.10.1944 and the same has been coming in use as common service lane of the plaintiffs. This property was commonly known as Shiv Jatan Pandey Lane and was sold to Ram Narayan Tiwary by his vendors, who were descendants of Shiv Jatan Pandey, along with their house and land.

3. Further case of the plaintiffs is that service lane looks like a big ‘L’ an arm of which touches the kitchen garden of the plaintiffs situated back and west of their house and the 2nd arm touches the main road passing north to south.

4. Further case of the plaintiffs is that the defendants 1st party entered into a contract with defendant no.5, Ratan Kumar Santhaliya, a builder and developer for construction of a multi-storied apartment on their plot lying adjacent south of the house of the plaintiffs. The defendants 1st party and defendant no. 5, in collusion, want to dispossess the plaintiffs from their service lane after they started their construction work. The plaintiffs also claim that the apartment being constructed by defendant no. 5 is in violation of the municipal laws and no space in and around the apartment are left and the plaintiffs are being deprived of their right for easement as well as right to light and fresh air. The defendant no. 5 wants to dig trench on the service lane along with the plot handed over to him by defendants 1st party. When the defendants 1st party and defendant no. 5 did not pay any heed to the request of the plaintiff no.1, he served a legal notice upon defendant no.5 and also submitted an application before the Town Commissioner, Municipal Corporation, Bhagalpur, but as the Town Commissioner, Bhagalpur Municipal Corporation was hand in glove with the defendant no. 5, no action was taken and, thereafter, the plaintiffs filed the suit seeking a decree for declaration of title and possession on the land of the service lane detailed in Schedule-1 and the plaintiffs also sought restrainment order by way of ad interim injunction against the defendants on the land of service lane. Further prayer was sought that the defendants 1st party and 3rd party be directed to follow the provisions as laid down under the Municipal and Building By-laws.

5. The defendants appeared and filed their respective written statements contesting the claim of the plaintiffs. Before framing of issues, an amendment application has been filed on behalf of the plaintiff/petitioner seeking certain amendments in the plaint and this a