JUDGMENT

1. This misc. appeal has been filed by the appellants/defendants No. 1 to 6 under order 43 rule 1(u) CPC arising out of judgment and decree of remand dated 7.7.2017 passed by 2nd Additional District Judge, Shivpuri, in Civil Appeal No. 500019/2013 reversing the judgment and decree dated 22.4.13 passed by learned Civil Judge, Class I, Kolaras, Distt. Shivpuri, in Civil Suit No. 10-A/12.

2. Brief facts giving rise to present appeal are that plaintiffs/respondents No. 1 and 2 instituted a suit for declaration of title and permanent injunction in regard to agricultural land survey No. 465 measuring 1.32 hectares situated at village Lagda, Tahsil Kolaras, Distt. Shivpuri. It is submitted that relief of return of possession was not sought and during trial it was found that land in question was not in possession of the plaintiffs since inception of the suit, as a result of which suit was dismissed.

3. It is submitted by learned counsel for the appellants that learned first appellate Court, taking into consideration an application for amendment filed under order 6 rule 17 seeking a relief of return of possession, has remanded the matter which is illegal and arbitrary. Reliance has been placed by learned counsel for the appellants on the order of this Court in the case of Chhote Verma @ Jitendra & Anr. v. Munnalal Singhal & Ors. passed in W. P. No. 5249/2016 on 20.3.2017, so also order dated 18.1.2017 passed in W.P.No. 204/2017 (Vinod Kumar & Anr. v. Nafees Akhtar & Ors.).

4. On the other hand, learned counsel for the respondents/plaintiffs submits that law is well settled as has been laid down in the case of Kalyan Singh v. Vakil Singh and others as reported in AIR 1990 MP 295 that a suit for declaration of title with alternate relief of possession is maintainable. In para 20 of this judgment, it has been held as under:

“20. The legal position that flows from the above said authorities is as under:

(i) Further relief than a mere declaration referred to in the proviso to section 34 of Specific Relief Act, 1963 contemplates the entitlement of the plaintiff as obtaining on the date of the suit;

(ii) Entitlement of the plaintiff enabling seeking further relief based on an event occurring during the pendency of the suit would not render the suit not maintainable;

(iii) It is the choice of the plaintiff to rest content by a mere decree for declaration in that suit and then to sue for further relief by bringing an independent suit subject to Law of Limitation or to pray for further relief by making an amendment in the plaint in that suit itself;

(iv) Bar enacted by the proviso does not automatically entail dismissal of the suit but the plaintiff must be afforded an opportunity of amending the plaint if so desired;

(v) Further relief cannot be granted to the plaintiff without the same having been specifically asked for.”

5. Reliance has also been placed on the judgment of the Supreme Court in the case of Mst. Rukhmabai v. Lala Laxminarayan and others as reported in AIR 1960 SC 335 wherein it has been held that an objection to the maintainability of the suit based on the proviso above-said should be taken at the earliest point of time because in that event, the plaintiff could ask for necessary amendment to comply with the proviso. It has been further held that it is a well settled rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amendment if he seeks to do so.

6. After hearing learned counsel for the parties and going through the record, it is apparent from the judgment passed by the trial Court that present appellants, who were defendant, before the trial Court, have taken this objection in the first instance that in the suit land, plaintiffs are not having possession and such bhumiswami rights and actual possession is with the defendant No. 1 and remaining defendants are respectively wife, son and daughter of defendant No. 1. Objection was also taken to the effect that in 1994 who was th