JUDGMENT

1. This appeal under section 100 of the CPC has been preferred by plaintiff against the judgment and decree dated 1.2.2002 passed in Regular Civil Appeal No.26-A/2000 by the First Additional District Judge, Mandsaur affirming the judgment and decree dated 10.3.2000 passed in Civil Suit No. 70-A/1996 by the IIIrd Civil Judge, Class-I, Mandsaur, whereby his claim for declaration was dismissed.

2. The facts of the case in brief are that the plaintiff instituted an action before the trial Court submitting that he is the owner of the suit land bearing Survey No.79, Gram Kityani, Tehsil and District Mandsaur having purchased the same from its previous owner Prakash Chandra by registered sale deed dated 14.7.1992. The defendants 1 and 2 do not have any concern with the suit land yet are contending that they have purchased the same from defendant No.3 and shall take possession of the same. Relief was claimed for declaration of his title to the suit land and for permanent injunction restraining the defendants from interfering with his possession over the suit land and from alienating the same.

3. The defendants 1 and 2 contested the plaintiff’s claim by filing their written statement submitting that plaintiff is not the owner of the suit land instead defendant No.1 had purchased the same from its previous owner Nemichand in the year 1991 and had thereafter sold the same in favour of defendant No.2 by a registered sale deed dated 22.12.1989 followed by delivery of possession who is hence the owner thereof. Plaintiff is also not in possession of the suit land hence his claim for declaration of title and permanent injunction in absence of relief of possession is not maintainable.

4. The trial Court upheld plaintiff’s title to the suit land. However, it further held that plaintiff was not in possession of the suit land on the date of filing of the suit and instead defendant No.2 was in possession thereof and since plaintiff has not sought relief of possession, the claim is hit by the proviso to section 34 of the Specific Relief Act as plaintiff has not claimed the further and better relief available to him. On such findings, plaintiff’s claim was dismissed.

5. In appeal preferred by plaintiff, the only ground raised by him was that the trial Court ought to have afforded an opportunity to him for claiming relief of possession from the defendants and ought not to have straightaway dismissed the suit. The finding of plaintiff not being in possession of the suit land on the date of suit was not challenged by him. The lower appellate Court has dismissed the appeal observing that since plaintiff had himself not sought any amendment in the plaint either before the trial Court or at the appellate stage for claiming relief of possession, no such opportunity could have been given to him by either of the Courts. It is held that it is not for the Court to give such an opportunity prior to dismissing the suit.

6. By order dated 11.2.2003 the instant appeal was admitted for final hearing on the following substantial questions of law :--

“1. Whether lower appellate Court was justified in confirming the decree passed by the trial Court which had dismissed the suit?

2. Having held the plaintiff to be the owner of the suit property in paragraph-4, whether lower appellate Court was justified in still dismissing the suit on the ground that possession of this suit property was not sought by way of relief in the plaint ?

3. Was it not obligatory upon the Court to have granted opportunity to the appellant to seek relief for possession once it was held that defendant No.2 was in possession of the suit property ?”

7. During pendency of this appeal the plaintiff has filed an application under Order 6 rule 17 of the CPC on 1.4.2002 to amend the plaint to claim relief of possession of the suit land. The said application has been straneously opposed by learned counsel for the defendants.

8. Learned Senior Counsel for the plaintiff/appellant submits that th