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 appellant No. 2 who took it away 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 a superdar (custodian of the Court). The order of the High Court was implemented a few days after the suit was filed. The trail Court held that the possession of the truck was with the Court and not with the plaintiff and thereforee, the plaintiff was not in possession of the motor truck on the date of the suit. He was thereforee, 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 is the resident of Bihar. The suit was thereforee 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 in junction. 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, thereforee, 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.
3. 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 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 than a mere declaration of title omits to do so.'
4. 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 was to be clarified, thereforee, that the thrust of these words is firstly against the defendants. It is only when the plaintiff is lable to seek further relief against the defendants that the proviso becomes applicable. If, thereforee, 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, thereforee, the possession is with a third person who is not a party to the suit , the plaintiff may not be necessarily disabled from filing the suit for declaration if he fulfillls all the other requirements of Section 34 and the proviso thereto. This may be illustrated by a few important decisions.
5. In Sunder Singh v. Managing Committee, Sunder Singh Mullah Singh Rajput High School, Indaura , the plaintiff was a trustee who was not in possession or control of the management of the institution. Nor was the defendant in such possession or control . The suit for declaration by the plaintiff was held to be maintainable as no further relief other than an injunction was claimable by him against the defendant. In Humayun Begam v. Shah Mohammad Khan the plaintiff sued for a declaration that the money in the fixed deposit in the bank belonged to her as against her husband and his son. The possession of the money in the fixed deposit was with the bank which was not a party to the suit. The suit of the plaintiff was thereforee, held not to be barred by the proviso. In Deo Kuer v. Sheo Prasad Singh, : 3SCR655 , the property was under attachment under Section 146 of the Criminal Procedure Code prior to its amendment in 1955 which was analogous to an attachment under Section 145, Criminal Procedure Code. Such an attachment during the pendency of the proceedings had the effect of placing the property in custodia legis. The Court held it for the benefit of the party which would be ultimately successful. A suit by one of the parties for a declaration of his ownership to such property was, thereforee, held not to be barred by the proviso. In Teeka v. State of Uttar Pradesh , : 1961CriLJ859 , the Supreme Court further explained that the property in custodia legis was in possession of the Court and the judgment debtor had no right to dispossess such a custodian of the Court . If he did so he would be guilty of theft.
6. The custody of the Court of course comes to an end when a final order is passed under Section 145, Criminal Procedure Code and the property is delivered to the successful party. Thereafter the possession of the property by the defendant is a bar to a suit by the plaintiff for a mere declaration as held in Lachhimi Nath Pathak v. Bholanath Pathak, : AIR1964All383 . Similarly when a defendant was in actual possession a plaintiff was held disabled from suing for a mere declaration in Suryanarayana Rao v. Veera Rajamma, : AIR1964AP223 .
7. In the light of the above decisions it must be held that the motor truck in the present case was in custodia legis both because of the order of the Magistrate as also by the order of the High Court, the difference only being that under the former order the plaintiff while under the latter order the defendant was to be the custodian. There is an essential distinction between possession and custody. Possession consists both of fact land law, that is to say of actual control and the legal right to it. On the other land, custody is a mere fact without a legal right. The Court holds the property actually without claiming any legal interest in it for the benefit of the successful party. As the Court does not claim any right in itself and as the only object of the custodia legis is to await the success of either party in the litigation, the plaintiff is not 'able to seek further relief' against the Court within the meaning of the proviso to Section 34. He cannot be required to join the court as a defendant. For, as soon as the Court is satisfied that a litigation between the parties has ended in favor of the plaintiff, the court would terminate its custody and handover the possession of the motor truck to the plaintiff.
8. On the date of the suit the court was in custody of the motor truck. Learned counsel for the appellants submitted that thereafter the police investigation came to an end and no prosecution was instituted against the plaintiff respondent No. 1 at the instance of the defendant No. 3- appellant 2. He submitted thereforee, that the possession of the appellant No. 2 thereafter must be regarded as a possession in his own right. For, the custodia legis could continue only during the pendency of the police investigation. It automatically ended when the police investigation ended. Ordinarily, the Court would pass an order for the final disposal of the property after the end of investigation if no prosecution was to follow. Even if the Court forgot to do so in the present case, I am prepared to assume that the custodia legis came to an end and the defendant No. 3 thereafter continued in possession on his own right and not on behalf of the Court. But it is unnecessary to decide this question. For, the title of the plaintiff to sue for declaration is to be judged on the date of the suit. Undoubtedly the motor truck was in custodia legis on the date of the suit. The plaintiff was, thereforee, entitled to sue for declaration. It would be necessary to decide whether the custodia legis came to an end thereafter only if such a subsequent event would have compelled the plaintiff to seek further relief. But the proviso to Section 34 is to be applied only at the institution of the suit and not at a subsequent event would have compelled the plaintiff to seek further relief. But the proviso to Section 34 is to be applied only at the institution of the suit and not at a subsequent stage of it as pointed out by a Division Bench of the Lahore High Court in Fateh Shah v. Bahab Shah, Air 1927 Lah 128. The subsequent possession of the motor truck by appellant No. 2, even if it were to be in his own right, does not have the retrospective effect of disentitling the plaintiff to file a suit . The plaintiff's suit for a declaration and injunction was , thereforee, maintainable.
9. A part of the cause of action undoubtedly arose within the local jurisdiction of the Delhi Court inasmuch as the motor truck was allegedly bought by the plaintiff in Delhi and given to the respondent No. 2 on hire. The appellant No. 1 is also in Delhi and claimed a title hostile to that of the plaintiff. The motor truck was removed from Delhi to Bihar. The Court at Delhi had thereforee the local jurisdiction to try the suit . In the circumstances, the exercise of the discretion by the trial Court under Section 20(b) of the Civil Procedure Code to prosecute the suit against the defendant No. 2 could not be said to be unreasonable. I find so.
10. The appeal is, thereforee, dismissed but without any order as to costs.
11. Appeal dismissed.