JUDGMENT V.K. Mehrotra, J. - This is a defendant's second appeal against whom a decree has been passed by the lower appellate Court declaring that the order dated June 8, 1971 passed by the Rent Control and Eviction Officer, Hasanpur, in the district of Moradabad allotting the premises in suit to the defendant was void and illegal and so also was the order dated Sept. 8, 1972 passed by the Commissioner, Bareilly in revision against the order of the Rent Control and Eviction Officer. The trial Court had dismissed the suit. 2. The case of the plaintiff-respondent in this court, was that on June 8, 1971 the Tahsildar Hasanpur, exercising the powers of the Rent Control and Eviction Officer, purported to allot the premises in suit to the defendant, appellant in this Court, which he had no jurisdiction to do, inasmuch as, the premises were not an accommodation within the meaning of U. P. Act III of 1947. It was an open Ahata and there was no roofed structure which could be allotted. Further, he assailed the order in revision which was erroneously dismissed by the Commissioner. The case further is that in pursuance of the illegal order, the defendant was attempting to take forcible possession of the premises and as such it had become necessary for him to protect his lawful possession by seeking declaration that the orders aforesaid were void and unenforceable. The suit was filed on Oct. 6, 1972. 3. The case of the appellant, mainly, was that in pursuance of a valid allotment order, which related to a roofed structure, he had obtained possession of the premises in dispute on Oct. 5, 1972. The suit was not maintainable for it was barred by S. 16 of U. P. Act III of 1947. Further, it was barred by S. 34/3 of the Specific Relief Act, 1962. Some other pleas were also taken which are not material at the present stage. 4. After filing the suit, the plaintiff made an application for an interim injunction restraining the defendant from taking possession of the disputed premises. The application was contested and after consideration of the affidavits filed, the trial Court rejected it by its order dated Oct. 21, 1972 on the finding that prima facie it was proved that the defendant was in possession of the property in suit. 5. Issues were framed in the case on Mar. The application was contested and after consideration of the affidavits filed, the trial Court rejected it by its order dated Oct. 21, 1972 on the finding that prima facie it was proved that the defendant was in possession of the property in suit. 5. Issues were framed in the case on Mar. 27, 1972. Issue No. 3 was "Whether the plaintiff is not in possession? If so, is the suit maintainable?" Parties led evidence in support of their respective case and on consideration of that evidence, the trial Court was of opinion that on the date when the order of allotment was made, there was a roofed structure which could validly be allotted by the Rent Control and Eviction Officer. It also held, under issue No. 3, that the plaintiff was in possession of the property when the suit was filed. Consequently, according to the trial Court, the suit was not maintainable in absence of the prayer for possession. 6. Consequent upon the dismissal of the suit, the plaintiff approached the lower appellate Court in an appeal. The lower appellate Court, at one place, observed that the trial Court had rightly held that a roofed structure had existed in the Ahata at the time of the passing of the impugned allotment order on June 8, 1971, though later, after discussing the evidence, it observed that "it was abundantly proved on record that no roofed structure even existed which could be covered within the ambit of the provisions of U. P. Act No. 3 of 1947" and that "on 8-6-71 the Tahsildar had no legal jurisdiction or power to pass the allotment order of this open piece of land i.e. Ahata or even of any roofed structure which was not constructed prior to Jan. 1951". Towards conclusion of its judgment, the lower appellate Court observed that "the possession of the defendant vide Dakhalnama dated 5-10-1972 could not confer any legal possession to the defendant so that the suit could not be held otherwise also as barred by S. 34 of the Specific Relief Act." Setting aside the decree of the trial Court, the lower appellate Court gave a declaration that the two orders of the authorities under U. P. Act III of 1947 were illegal, invalid and ultra vires and without jurisdiction and were not binding upon the plaintiff. 7. 7. In this Court, it has been urged on behalf of the defendant-appellant by Sri Rishi Ram that the lower appellate Court has recorded inconsistent finding in regard to the existence or otherwise of a roofed structure falling within the definition of the word 'accommodation-under U. P. Act No. Ill of 1947 and that, in any case, possession of the appellant was protected under U. P. Act No. 13 of 1972 which replaced the earlier Act. He has also urged that the suit for the mere relief of declaration was not maintainable and that the lower appellate Court was in error in passing the decree in regard to the validity of the allotment order even in the absence of a prayer for the relief of possession by the plaintiff. Sri Y.S. Saxena, for the plaintiff-respondent, has countered these submissions. 8. As seen earlier, a specific plea was taken by the present appellant in the written statement filed by him that he was in possession of the suit premises and that the suit, as framed, was barred under S. 34 of the Specific Relief Act. This plea occurs in paragraph 12 of the written statement. The plaintiff was claiming that he was in possession. The trial Court, on these pleadings, framed the third issue specifically about the maintainability of the suit depending upon the fact as to whether the plaintiff was in possession of the suit property on the date of the suit or not. This issue was answered against the plaintiff by the trial Court, which had earlier, refused to eventually grant an interim injunction to the plaintiff on its finding that the plaintiff was not in possession of the suit property. In spite of the clear objection of the defendant in the written statement and of the rejection of the application for the grant of injunction, the plaintiff did not seek amendment of the plaint by adding a relief. He did not do so even after the trial Court had held that the suit was not maintainable for the mere relief of declaration as the plaintiff was not in possession of the property at the time of filing of the suit. There was an application for amendment made before the lower appellate Court but that was in regard to some other matter. 9. There was an application for amendment made before the lower appellate Court but that was in regard to some other matter. 9. Under S. 34 of the Specific Relief Act it has, in terms, been provided that no Court shall grant the discretionary relief of declaration where the plaintiff, being able to seek a further relief than a mere declaration of title, omits to do so. In Ram Saran v. Smt. Ganga Devi ( AIR 1972 SC 2685 ) it was observed (in para 4 of the report) by the Supreme Court thus : - "We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation." 10. The dictum of the Supreme Court fully applies to the facts of the present case.Without going, therefore, into the correctness or otherwise of the contentions on the merits of the controversy, raised in this appeal, it has to be held that the suit, as framed, was not maintainable, and that the lower appellate Court was in error in taking a view to the contrary. The trial Court was plainly right in its conclusion recorded under issue No. 3. 11. The appeal succeeds and is allowed. The decree of the lower appellate Court is set aside and that of die trial Court, dismissing the suit is affirmed on the ground that the suit, as framed, was not maintainable on account of the provision in S. 34 of the Specific Relief Act. 12. Parties shall bear their own costs.