A suit for mere declaration without seeking consequential relief is maintainable only if the plaintiff can prove ownership or possession, as possession follows title.

JUDGMENT

This R.S.A has been filed against the judgment and decree in A.S.No.26 of 2013 on the file of III Additional District Court, Kasaragod which in turn arise out of the judgment and decree in O.S.No.91/2011 on the file of Sub Court, Kasaragod.

2. Appellants are the defendants 1, 2, 4 and 8 to 10. Respondents are plaintiff No.2 and defendants 5 to 7, 11 and 12. The suit has been filed for declaration. First plaintiff died pending the proceedings. Plaintiffs’ case is that plaint A schedule property originally belonged to the joint family of the plaintiffs. That property, along with other properties, were allotted to the branch of the first plaintiff and his father, as per registered partition deed of the year 1952. On the death of father, first plaintiff became the absolute owner in possession of plaint A schedule property.

Thereafter, he gifted the property in favour of the second plaintiff as per settlement deed of the year 2009. Accordingly, 2nd plaintiff became the absolute owner of plaint A schedule property. First defendant made publications in two dailies on 02.07.2010 and 03.07.2010 that plaint A schedule property belongs to the first defendant society and nobody else has right over the same. When the plaintiffs came to know about it, they issued a notice to defendants 1 and 2 on 22.07.2010 enquiring the nature of claim over the property. The first defendant sent a reply stating that they got title and ownership over plaint A schedule property which has been acknowledged in the proceedings of the Taluk Land Board and compromise decree also obtained in favour of the first defendant. On further enquiries, the plaintiffs came to know about O.S.No.381/2004 filed in collusion by the first defendant against the first plaintiff through 5th defendant as the power of attorney holder seeking for declaration of title of plaint A schedule property and consequential injunction. Suit was ultimately compromised, but first plaintiff never appointed 5th defendant as the power of attorney holder. Hence, judgment in O.S.No.381/2004 was obtained by the first defendant in collusion with the 5th defendant fraudulently. Defendants 3 and 4 are president and secretary of the society and previous Secretary of the Sangha, Sri.Khandige Srikrishna Bhat and 5th defendant are close relatives. No notice or summons was served on the first plaintiff in O.S.No.381/2004. Hence the suit has been filed to declare the title of the 2nd plaintiff over plaint A schedule property and that the judgment in O.S.No.381/2004 are not binding on them.

3. Defendants 1 to 4 filed written statement denying the whole allegations in the plaint. It is contended that first plaintiff is not properly represented in the suit. He is senile and lunatic. He has not subscribed his signature to the plaint. First defendant is an educational institution registered with the Assistant Registrar of Joint Stock Companies, South Kanara, Mangalore. That institution is running Sanskrit College, High School and LP School. The ancestors of Khandige family to which the first plaintiff and defendants 3 to 5 belong were the founders of the educational institution and contributed much for the welfare of the same. First plaintiff got absolute ownership over plaint A schedule property subsequent to a partition deed in his family way back in 1952. He gifted the property to the first defendant in May, 1956 and first defendant Sangha has been in possession and enjoyment of the property since then. First plaintiff promised to execute a gift deed with respect to plaint A schedule but it was not materialised. Plaint A schedule property is enclosed by compound wall belonging to defendants 1 and 2. They have been paying tax subsequent to the order of Tahsildar under the provisions of Kerala Land Tax Act, 1961 dated 28.09.1974. The Taluk Land Board, Kasaragod held that plaint A schedule property belongs to defendants 1 and 2. First plaintiff dedicated plaint A schedule property in favour of the first defen