AGARWALA J.:-This is a plaintiffs appeal arising out of a suit for a declaration that the plaintiff was the Mahant of certain temples. The facts briefly are these :

There are two temples in which three deities are installed. One temple is situated in village Atrauli Maufi and the other in village Katra Gudar. One Mahant Salig Ram Das was the Mahant and Sarbarakar of the deities of the two temples. He died on 7-10-1946.

One Lachchman Das applied for having his name mutated in the revenue records over the property belonging to the deities. He was opposed by one Ganga Ram Das who is one of the defendants-respondents in the present litigation. During the pendency of the mutation proceedings the revenue Court appointed a receiver to take charge of the endowed property. The receiver took possession of the property on 27-2-1947. Lachchman Das was later murdered in May, 1947, and upon his death his two chelas came forward claiming the Mahantship as successors of Lachchman Das.

One was Rameshwar Das and the other was Gobind Das. Rameshwar Das also died on 2-6-1947, and in his place the plaintiff-appellant applied for mutation on the ground that he was the successor of Rameshwar Das who alone was the successor of Lachman Das. The plaintiffs application was, however, dismissed because the revenue court held that the court had no power to implead the heirs of claimants in mutation proceedings. Upon his application for mutation being dismissed he filed the suit, which has given rise to this appeal, in the civil court for a declaration of his title to the Mahantship of the endowment.

At this time, the appointed receiver was in possession of the property. The Assistant Collector was dealing with the mutation case, and held that he was not able to decide who was in possession of the property, and therefore, ordered that the receiver was to remain in possession till the title was decided by a competent civil Court.

Against this order Govind Das appealed to the Collector. The Collector held that as between Govind Das and Ganga Ram, Govind Das was better entitled to the property, and he, therefore, ordered imitation to be effected in his name, and he also ordered the receiver to hand over possession of the property to Govind Das. Consequently, Govind Das came into possession over this property.

2. The Civil Suit then came up for decision, and the learned Civil Judge dismissed it on the ground that since the plaintiff was not in possession over the property his suit for a mere declaration was barred by reason of the proviso to S.42, Specific Relief Act. The plaintiff has appealed to this Court against the decision of the learned Civil Judge, and the only point for consideration is whether the suit was barred by the proviso to S.42, Specific Relief Act. Section 42 of the Specific Relief Act with its proviso 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 deny, 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 that a mere declaration of title, omits to do so."

The first thing to be noted in connection with S.42 is that it enables a person to institute a suit for a declaration as to his legal character or right to any property against a person denying or interested in denying his legal character or right.

The second thing to be noted is that the court is given a discretion to make the declaration sought and the plaintiff need not ask for any further relief. The relief being discretionary, no person can claim the declaration as of right. But, at the same time, the court being a court of justice its discretion is fettered by principles of law laid down by the courts themselves, though not by