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2023 Supreme(Online)(Ker) 58429
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.R.ANITHA, J
The Secretary, Mahajana Vidhyabhivardhaka Sangha (Regd), Perdala – Appellant
Versus
Sudharshan Khandige – Respondent
RSA No. 126 of 2019 | A.S.No.26 of 2013 | O.S.No.91/2011
For the Appellants/Petitioners: P.B.Krishnan, P.M.Neelakandan, P.B.Subramanyan, Sabu George, B.Anusree, Manu Vyasank Peter, Balakrishna Iyer (Sr)
For the Respondents: Dr.Sebastian Champappilly, Dr.Abraham P.Meachinkara, George Cleetus, P.A.Sainudeen, Dr.Sebastian Champappilly
A suit for mere declaration of title without consequential relief is maintainable under Section 34 of the Specific Relief Act if possession is not proven to lie with defendants.
Headnote:(A) Specific Relief Act, 1963 - Section 34 - Suit for declaration of title - Defendants contested claiming possession based on previous decrees - Courts found plaintiffs' title valid without binding nature of previous decrees - The first plaintiff never executed a valid deed transferring the property - Lower courts confirmed title but not possession. (Paras 7, 9, 10, 27, 38)
(B) Maintenance of Suit - The suitability of suits for mere declaration without consequential relief must present a substantial issue of law; provisions must be adhered to, particularly when the issue was not raised at lower stages. (Paras 10, 29, 38)
Facts of the case:
This case involves a regular second appeal regarding a property that traditionally belonged to a joint family. It disputes the title based on a purported gift deed and previous judgments that were claimed to confer rights over the property to the defendant society, which were found invalid.
Findings of Court:
The court determined that the plaintiffs retained title to the property, and no rightful possession was proven by the defendants, invalidating their claims of ownership.
Issues: Whether declaring title without ancillary relief contravenes Section 34 of the Specific Relief Act, and whether the lower courts' findings on possession were erroneous.
Ratio Decidendi: The court established that possession follows title, highlighting that without concrete evidence of actual possession by the defendants; the continued title of the plaintiffs prevails.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. factual background of property ownership (Para 1 , 2) |
| 2. defendants' arguments on ownership and representation (Para 3 , 4 , 5) |
| 3. trial court's partial decree (Para 7 , 8) |
| 4. substantial questions raised in appeal (Para 9 , 10 , 11 , 12) |
| 5. definition of land holder under kerala land tax act (Para 17) |
| 6. limitations of revenue records in proving title (Para 22 , 24 , 25) |
| 7. defendants' failure to prove possession (Para 26 , 27) |
| 8. estoppel in raising section 34 arguments at appellate stage (Para 28 , 29 , 30) |
| 9. discretionary nature of declaratory relief (Para 31 , 32 , 33) |
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.
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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.
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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 de
