JUDGMENT : AIKMAN, J. The plaintiff came into Court alleging that he was in exclusive possession of a piece of land, but that the defendant on the allegation that he was a partner in the land prevented him from constructing a shed, which he wished to put up. He accordingly prayed for a declaration as to his exclusive ownership. The Court of first instance gave the plaintiff a decree. The defendant appealed. Although the ground was not taken in his memorandum of appeal, the lower appellate Court, with the consent of the respondent, allowed the question to be argued as to whether the suit was maintainable with reference to the proviso to section 42 of the Specific Relief Act. The lower appellate Court held that because the plaintiff had not also asked for an injunction to restrain the defendant from interfering with the erection of the shed, he was not entitled to maintain the suit. The plaintiff comes here in second appeal. In my opinion the view taken by the lower appellate Court is wrong. A reference to the ruling cited by the lower appellate Court, i.e., Abdul Kadar v. Mahomed, [1891] I.L.R., 15 Mad., 15., will show that the facts of that case were very different. In that case it was found that the plaintiff was out of possession of part of the property in respect of which he asked for a declaratory decree. As the plaintiff's case was that the defendant interfered with him on the allegation that he (defendant) was the joint proprietor of the land, it was in my judgment sufficient for the plaintiff to ask for a declaration as to his exclusive possession. Such a declaration would on the case set up by the plaintiff be sufficient for the plaintiff's purpose. The lower Court dismissed the plaintiff's suit on this preliminary plea. I allow the appeal, and setting aside the decree of the Court below, remand the case to that Court with directions to re-admit the appeal under its original number in the register and determine it on the merits. The plaintiff will have the costs of this appeal in any event, other costs will abide the result.