V. S. DESHPANDE, J.

( 1 ) THE most important question in this appeal is whether on a proper construction of the proviso to section 34 of the Specific Relief Act, 1963 (hereinafter called the Act)-corresponding to section 42 of the Specific Relief Act, 1877 the suit for declaration and injunction by the plaintiff respondent No. 1 is maintainable.

( 2 ) THE suit was filed on 13-2-1963, the same day when the Act came into force. The plaintiff alleged that he was the owner of a motor truck hired from him by Respondent 2 Krishan Lal Jaggi. The appellant No. 1. however, claimed to be the owner of the truck and purported to hire it out to respondent No. 2 who took it away to Bihar. When the plaintiff tried to take back possession of the truck from appellant No. 2, the police intervened and investigated into a complaint of theft by appellant No. 2. During the investigation the Magistrate ordered the motor truck to be kept with the plaintiff-respondent No. 1 as superdar (custodian of the Court ). On an appeal by appellant No. 2, however, the High Court of Patna set aside the order of the Magistrate and ordered that the motor truck should be kept with the appellant No. 2 also as a superdar (custodian of the Court ). The order of the High Court was implemented a few days after the suit was filed. The trial Court held that the possession of the truck was with the Court and not with the plaintiff and, therefore, the plaintiff was not in possession of the motor truck on the date of the suit. He was, therefore, bound to sue for possession of it and could not merely sue for declaration and injunction. It also held that the Court in Delhi did not have the territorial jurisdiction to try the suit and leave should not be granted to the plaintiff to file the suit against the appellant No. 2 who are the residents of Bihar. The suit was, therefore, dismissed. The lower appellate Court on the other hand held that the plaintiff was in actual possession of the motor truck on the date of the suit rightly or wrongly and this was sufficient to sustain the suit for declaration and injunction. It also held that a part of the cause of action arose in Delhi and the Court at Delhi had territorial jurisdiction to try the suit and granted leave to the plaintiff to pursue the suit against appellant No. 2. It. therefore, remanded the , suit back to the trial Court for trial on merits. Hence this second appeal by the defendants 2 and 3 against the plaintiff and defendant No. 1. The relevant part of section 34 of the Act is as follows :

"any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to denty. his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. "

( 3 ) THE decision of this case turns on the meaning of the phrase "being able to seek further relief". The trial Court thought that these words require the plaintiff to be in actual possession of the motor truck in his own right while the lower appellate Court thought that the actual possession of the plaintiff in whatever right was sufficient. It has to be clarified, therefore, that the thrust of these words is firstly against the defendants. It is only when the plaintiff is able to seek further relief against the defendants that the proviso becomes applicable. If, therefore, the defendants or any of them were to be in possession of the motor truck then the plaintiff would be bound to seek the relief of possession. The Court is not restricted to enquire only whether the plaintiff is in physical and legal possession of the motor truck. If, therefore, the possession is with a third person who is not a party to the suit, the plaintiff m

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