( 1. ) BEING aggrieved by the judgment-decree dated 22-9-90, passed by II ADJ, Sidhi in C. A. No. 1-A/89, reversing, the judgment-decree dated 31-1-87, passed by III Civil Judge Class II, Shahdol in C. S. No. 33-A/86, plaintiff/appellant has preferred this appeal under Section 100, CPC.

( 2. ) THE appeal has been heard on the following substantial question of law :-

"whether the Lower Appellate Court was justified in dismissing the plaintiffs suit on the finding that the plaintiff/appellant was out of possession and, therefore, the suit for declaration was not maintainable ?"

OR "whether the Lower Appellate Court should have afforded an opportunity to the plaintiff/appellant to amend the plaint and claim the relief of possession also ?"

( 3. ) ADMITTEDLY suit land Khasra No. 501, area 0. 22 acres, Village Panchgaon, Tehsil Sohagur, District Shahdol is recorded in the name of plaintiff/appellant Rampramod. On a portion of this land, residential houses were constructed by defendant/respondents, however, the remaining portion of land described in Para 4 of the plaint-map attached therewith, remained in exclusive possession of plaintiff/appellant. Defendant/respondents on 25-2-78, tried to dispossess him from the aforesaid portion described in Para 4 of the plaint and map attached therewith. Therefore, plaintiff/appellant instituted C. S. No. 33-A/86 before III Civil Judge Class II, Shahdol seeking declaration of tile and injunction restraining defendant/respondents from dispossessing him from the suit land. The suit aforesaid has been resisted by the defendant/respondents stating inter alia that plaintiff/appellant Rampramod is not related to defendant/respondents. Suit land Khasra No. 501, area 0. 22 acres remained in possession of defendant/respondent and they never intended to dispossess the plaintiff/appellant. The Civil Judge in C. S. No. 33-A/86 vide judgment dated 31-1-87 held that plaintiff/appellant Rampramod is owner of suit land Khasra No. 501, area 0. 22 acres. Except the portion of land consisting of residential houses of defendant/respondents the remaining area always remained in exclusive possession of plaintiff/appellant. On 25-2-78, defendant/respondents threatened him to dispossess from the remaining portion of land. As such, C. S. No. 33-A/86 was decreed and defendant/respondents were restrained from dispossessing plaintiff/appellant from the suit land described in Para 4 of the plaint-map attached therewith. Being aggrieved, defendant/respondents preferred C. S. No. 1-A/89 before the II ADJ, Shahdol. The Court below setting aside the judgment-decree passed by Civil Judge in C. S. No. 33-A/86, allowed the appeal vide impugned judgment dated 22-9-90 and dismissed the suit C. S. No. 33-A/86. Being aggrieved, plaintiff/appellant has preferred this appeal under Section 100, CPC.

( 4. ) FIRST Appellate Court dismissed the plaintiff/appellants suit on the ground that he was out of possession and, therefore, the suit for declaration was not maintainable. It is contended that the finding aforesaid arrived at by the First Appellate Court is contrary to evidence on record and in any case, if necessary plaintiff/appellant must have been permitted to amend the plaint seeking relief of possession. Exhibit P-1, Khasra entry for the year 1974-75 goes to show that plaintiff/appellant Rampramod was the recorded owner in possession of suit land Khasra No. 501, area 0. 22 acres. As per Exhibit P-2 Bhuadhikar Patrika also, he is recorded owner of suit land. Exhibit P-3, demarcation report part of revenue case No. 14-A-92/75-76 is to the effect that the plaintiff/appellant Rampramod is recorded owner of Khasra No. 501, area 0. 22 acres. On a part of this land, houses were built by defendant/respondent Suresh and Ramesh. The remaining portion of land part of Khasra No. 501 is in possession of plaintiff/appellant. Rampramod (P. W. 1), Patwa (P. W. 2) have stated that only on a portion of land Khasra No. 501, two rooms were constru