RSA No. 126 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA FRIDAY, THE 26[TH] DAY OF MAY 2023 / 5TH JYAISHTA, 1945 RSA NO. 126 OF 2019** **IN THE COURT OF THE ADDITIONAL DISTRICT JUDGE NO.III, KASARAGODE** **A.S.NO.26 OF 2014** **IN THE COURT OF THE SUBORDINATE JUDGE OF KASARAGOD OS 91/2011** **- APPELLANTS IN R.S.A. APPELLANTS 1 TO 6 IN A.S. DEFENDANTS** **1, 2, 4 & 8 TO 10 IN O.S:** - 1 THE SECRETARY, MAHAJANA VIDHYABHIVARDHAKA SANGHA (REGD), PERDALA, P.O.NEERCHAL, (REGISTERED AS PER THE PROVISIONS OF SOCIETIES REGISTRATION ACT,1860, HAVING ITS REGISTERED OFFICE AT NEERCHAL IN NEERCHAL VILLAGE), KASARAGOD TALUK AND DISTRICT - 671 321. 2 THE PRESIDENT, MAHAJANA VIDHYABHIVARDHAKA SANGHA (REGD) PERDALA, P.O.NEERCHAL, KASARAGOD TALUK AND DISTRICT - 671 321. 3 K.JAYADEVA AGED 52 YEARS S/O.(LATE) K.SHAM BHAT, RESIDING AT KHANDIGE, NEERCHAL VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT - 671 321. - 4 DR.SUBRAMANYA BHAT AGED 63 YEARS S/O.(LATE) K.SHAM BHAT, RESIDING AT KHANDIGE, NEERCHAL VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT - 671 321. - 5 DR.PATANJALI KHANDIGE AGED 59 YEARS S/O.(LATE) K.SHAM BHAT, RESIDING AT KHANDIGE, R.S.A.No.126 of 2019 2 NEERCHAL VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT - 671 321. 6 RAMACHANDRA BHAT KHANDIGE AGED 55 YEARS S/O.(LATE) K.SHAM BHAT, RESIDING AT KHANDIGE, NEERCHAL VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT - 671 321. BY ADVS. P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SMT.B.ANUSREE SRI.MANU VYASAN PETER SRI.BALAKRISHNA IYER (SR) **RESPONDENTS IN R.S.A – RESPONDENTS 1 TO 4 & APPELLANTS 7 & 8 IN A.S / PLAINTIFF NO.2 & DEFENDANTS 5 TO 7, 11 & 12 IN** ## **O.S:** 1 SUDHARSHAN KHANDIGE AGED 43, S/O. (LATE) BALARAMA KHANDIGE, RESIDING AT TERRACE APARTMENT, B.04, STERLING, 100 FT, RING ROAD, BENASHANKARI 3RD STAGE, BANGALORE - 560 085, KARNATAKA STATE. 2 I.ISHWARA BHAT AGED 71 YEARS, S/O.SHANKARANARAYANA BHAT, RESIDING AT BADAGE MOOLE, NEERCHAL VILLAGE, P.O.NEERCHAL, KASARAGOD TALUK AND DISTRICT - 671 321. 3 I.V.BHAT AGED 75 YERS, S/O.KRISHNA BHAT, ADVOCATE, RESIDING AT BEACH ROAD, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND DISTRICT - 671 121. 4 S.MAHALINGA AGED 57 YEARS, S/O.VENKAPPA BHAT, ADVOCATE, RESIDING AT BEACH ROAD, KASARAGOD KASBA VILLAGE, P.O.KASARAGOD, KASARAGOD TALUK AND DISTRICT - 671 121. 5 PUSHPARAJ KHANDIGE R.S.A.No.126 of 2019 3 AGED 51, S/O.(LATE) K.SHAM BHAT, RESIDING AT KHANDIGE, NEERCHAL VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT - 671 321. 6 DR.GANESH KHANDIGE AGED 49, S/O.(LATE) K.SHAM BHAT, RESIDING AT KHANDIGE, NEERCHAL VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT - 671 321. BY ADVS. DR.SEBASTIAN CHAMPAPPILLY DR.ABRAHAM P.MEACHINKARA SRI.GEORGE CLEETUS SRI.P.A.SAINUDEEN DR. SEBASTIAN CHAMPAPPILLY THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 30.03.2023, THE COURT ON 26.05.2023 DELIVERED THE FOLLOWING: R.S.A.No.126 of 2019 4 ## **M.R.ANITHA, J** ****************** R.S.A.No.126 of 2019 ----------------------------------------Dated this the 26[th] day of May, 2023 ## **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. R.S.A.No.126 of 2019 5 Thereafter, he gifted the property in favour of the second plaintiff as per settlement deed of the year 2009. Accordingly, 2[nd] 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 5[th] 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 5[th] defendant as the power of attorney holder. Hence, judgment in R.S.A.No.126 of 2019 6 O.S.No.381/2004 was obtained by the first defendant in collusion with the 5[th] defendant fraudulently. Defendants 3 and 4 are president and secretary of the society and previous Secretary of the Sangha, Sri.Khandige Srikrishna Bhat and 5[th] 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 2[nd] 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 R.S.A.No.126 of 2019 7 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 defendant for charitable purposes. He has no manner of right to execute any gift deed in respect of plaint A schedule property in favour of the second plaintiff as alleged. It is not a genuine document. Decree passed in O.S.No.381/2004 is not obtained by fraud or collusion. 5[th] defendant is the newly appointed power of attorney holder of the first plaintiff and hence decree in O.S.No.381/2004 is valid and R.S.A.No.126 of 2019 8 binding on the plaintiffs. 4. 5[th] defendant filed separate written statement raising similar contentions. It is also contended that first plaintiff has no locus standi to institute the suit if the alleged gift deed executed in favour of the second plaintiff is taken as true. Defendants 6 and 7 have nothing to do with the subject matter of the suit. So, the suit is bad for misjoinder of parties. First plaintiff was never an absolute owner of plaint A schedule property. On the death of father of first plaintiff, his right over the properties is devolved upon his legal heirs including his widow, 5 daughters and first plaintiff. On the death of mother, her right devolved upon first plaintiff and his five sisters. First plaintiff is not competent to transfer the entire property in favour of second plaintiff. The other co-owners are not made parties to the suit. The suit is barred by limitation. Suit for declaration of title without consequential relief is not maintainable. 5. Defendants 6 and 7 filed written statement raising similar contentions and also contended that they are not necessary parties to the suit. R.S.A.No.126 of 2019 9 6. PW1 and PW2 were examined and Exts.A1 to A7 were marked from the side of the plaintiffs. DW1 and DW2 were examined and Exts.B1 to B11 and Ext.X1 series were marked from the side of the defendants. 7. Trial court on evaluating the rival contentions, facts, circumstances and evidence, decreed the suit in part declaring that the judgment and decree in O.S.No.381/2004 is not binding on the second plaintiff and other legal heirs of first plaintiff. The prayer for declaration of title of plaint A schedule property in favour of the second plaintiff is disallowed. 8. Against the judgment and decree passed by the trial court, defendants 1, 2 and 8 to 12 filed appeal. The first appellate court, on re-appreciating the facts, circumstances and evidence, confirmed the judgment and decree passed by the trial court and dismissed the appeal. Aggrieved by the same, appellants came up in second appeal. 9. The appeal was admitted on the following substantial questions of law. i) Whether the suit filed for declaration without any R.S.A.No.126 of 2019 10 consequential relief is barred by Section 34 of the Specific Relief Act? ii) Whether the finding of the courts below that the defendants failed to prove possession over the plaint schedule property is without considering the evidence adduced by the defendants and on mis-appreciation of evidence and hence is perverse? iii) Whether the grant of decree in favour of the plaintiffs is illegal after finding that the suit is bad for non-joinder of necessary parties? 10. Lower court records were called for and both sides were heard. 11. At the time of argument, learned counsel for the appellants confined the argument on the question of maintainability of the suit for declaration without any consequential relief and the bar under Section 34 of the Specific Relief Act. 12. To substantiate the contention, learned counsel would contend that the finding of the trial court that the court is not in a R.S.A.No.126 of 2019 11 position to decide the question of possession in favour of any of the parties is illegal and according to the learned senior counsel, the court is bound to find possession with any of the parties with the available evidence and the court is not expected to enter into a finding to the effect that it is not in a position to find the fact of possession, which, according to him, is unheard of. 13. Learned counsel for the plaintiff, on the other hand, would vehemently contend that the second appeal itself is not maintainable since there is no substantial question of law involved for determination. He would contend that no issue with regard to bar under Section 34 of the Specific Relief Act has been raised before the trial court and no argument was also advanced and hence at the second appellate stage, the defendants are estopped from raising such a contention and it will not constitute a substantial question of law also. He would also contend that, DW1 himself categorically admit during evidence that first plaintiff was in possession of the plaint schedule property and he would also admit that they have no case of trespass into the plaint schedule property or taking forceful possession of the R.S.A.No.126 of 2019 12 property at any point of time. Ext.A2 tax receipt has been produced to prove the possession of the property. There is no construction in the plaint schedule property and it is lying as a bare land and in such cases possession follows title is the settled principle. He would also contend that the records of Taluk Land Board or the payment of tax or the demand notice issued to the first defendant etc. will not confer any title or prove actual physical possession of the plaint schedule property upon the first defendant and hence the courts below rightly decreed the suit in part and hence no interference is required at the instance of this Court in second appeal. 14. Learned senior counsel for appellants placed very much reliance on Ext.B4 and Ext.X1 to prove the possession of the plaint schedule property with the first defendant Sangha. It is also contended that the first plaintiff dedicated the property long back before 3 to 4 years of 1960 to the Sangha and hence the trial court miserably failed to appreciate those documents. Exts.B1 is the demand notices dated 21.06.1974 issued to the President of the first defendant Sangha with respect to the R.S.A.No.126 of 2019 13 property comprised in Survey No.347/7 having an extent of 1.30 Ares ie. plaint schedule item No.1. Ext.B2 is another demand notice dated 28.09.1974 with respect to the same property to the President of first defendant Sangha. Ext.B3 series are the tax receipts. On examining Ext.B3 series, it could be seen that Ext.B3 tax receipt dated 07.01.1974 the tax is being paid in the name of first plaintiff with respect to the property comprised in Survey No.660 and Ext.B3(b) is tax receipt dated 06/02/1976 with respect to property comprised in Survey No.P119 in the name of first plaintiff, paid by Sangha and Ext.B3(c) is tax receipt dated 12.12.1983 issued in the name of first plaintiff with respect to property comprised in survey No.P 119. Ext.B3(d) is another tax receipt dated 12.12.1985 with respect to the property comprised in survey No.119 paid in the name of first plaintiff by Sangha. Ext.B3(e) is also with respect to the property comprised in survey No.119 in the name of first plaintiff by Sangha on 18.12.1986. Ext.B3(f) is also tax receipt dated 27.03.1989 paid in the name of first plaintiff by Sangha. Ext.B3(g) is tax receipt dated 08.03.1990 paid in the name of first plaintiff by Sangha R.S.A.No.126 of 2019 14 with respect to the property comprised in Sy.No.119. Ext.B3(h) is also tax receipt dated 27.03.1991 paid in the name of first plaintiff by Khadingi Sham Bhatt with respect to the property comprised in sy.No.119. Ext.B3(i) is tax receipt dated 26.08.2010 paid by Sangha with respect to 1.30 Acres of property comprised in Sy.No.347/7A (Pt). Ext.B3(j) is tax receipt dated 08.08.2011 paid by Sangha with respect to 1.30 Acres of property comprised in Sy.No.119/347 7A (Pt). On perusing the above tax receipts, it could be seen that upto 1986, the tax was being paid in the name of first plaintiff with respect to property comprised in Sy.No.119 by Sangha and in 1989 as per Ext.B3(f), Ext.B3(g) and Ext.B3(h), it has been paid by Khadingi Sham Bhatt for Sangha and Ext.B3(h) also would show re-survey No.347/7. 15. Section 3 & Section 6 of the Kerala Land Tax Act, 1961, was relied on by the counsel for the appellants. Section 3 reads as follows: - _“land holder” means_ _"(a) in relation to any land held by a cultivating tenant as defined in the Kerala Land Reforms Act, 1963 (1 of 1964),_ R.S.A.No.126 of 2019 15 _such cultivating tenant;_ - _(b) in relation to any land in the possession of a kanam tenant as defined in the Kanam Tenancy Act, 1955 (XXIV of 1955), such kanam tenant;_ - _(c) in relation to any land which has not been surveyed and it not held by a cultivating tenant referred to in subclause (a), the proprietor of such land;_ _(d) in relation to any other land, the registered holder for the time being of such land, and includes his legal representatives and assigned and any person who under any law for the time being in force is liable for the payment of public revenue due in respect of the land held by him;."_ ## 16. Section 6 of the Act deals with rate of basic tax which reads thus: “ _Rate of basic tax- (1) The basic tax charged and levied under Section 5 shall, subject to the provisions of sub-section (2) and section 7, be at the rate of two rupees per acre per annum._ - _(2) Notwithstanding anything contained 10 sub-section_ _(1), where a landholder or other person liable to pay basic tax proves to the satisfaction of the prescribed authority that the gross income from any land was less than ten rupees per acre per annum, the basic tax_ R.S.A.No.126 of 2019 16 _payable on such land shall be at a rate fixed by the prescribed authority calculated at one-fifth of the gross income from such land :_ _Provided that pending the fixation of the rate at which basic tax is payable on any land under this sub-section, the landholder shall be liable to pay basic tax on such land at the rate of two rupees per acre per annum; and, on fixation of the rate of basic tax the excess tax, if any, paid or collected, shall be refunded to the person ent1tled thereto :”_ 17. On going through the above, it is clear that the land holder has been defined by giving meanings to the effect that 1. A cultivating tenant as defined in the Kerala Land Reforms Act, 1963. 2. Kanam tenant as defined in the Kanam Tenancy Act, 1965 who is in possession of any land as defined under the Act. 3. The proprietor of the land in relation to any land which is not surveyed and is not held by a cultivating tenant referred in Sub clause (a) of Section 3 of the Kerala Land Tax Act. 4. The registered holder with respect to any other land. 18. The defendant has no case that they will come under R.S.A.No.126 of 2019 17 any of the categories defined under Sections 3 (a), (b) & (c) and with regard to Sub clause (d) the land holder would be the registered holder of the land who is none other than the plaintiff in the case on hand. So the payment of tax by the defendants Sangha is not in any of the capacities as defined in Section 3. 19. The learned counsel would contend that Exts.B1 and B2 the demand notices issued to the President of the 1[st] defendant Sangha under Section 6A(2) & 7(3A) of the Kerala Land Tax Act, 1961, (in short the 'Act') would prove that Sangha is the land holder of the plaint schedule property having an extent of 1 Acre 30 cents comprised in survey 347-7. Assessment of basic tax is provided in Section 6A of the Act which reads thus: _"(1) The basic tax payable in respect of any land shall be assessed in the manner provided in sub-sections (2) to (4)._ _(2) The prescribed authority shall serve on the landholder concerned and any other person liable to pay the basic tax in respect of any land, a provisional notice of demand in the prescribed form specifying the extent of the land,_ R.S.A.No.126 of 2019 18 _the rate and amount of basic tax payable in respect thereof and the person or persons liable to pay the basic tax and requiring the landholder and such other person to prefer objections, if any, to the particulars contained in the notice or to the rate or amount of basic tax, within such period as may be specified in the notice, which shall not be less than fifteen days from the date of receipt of the notice by the landholder or such other person._ _(3) Any person aggrieved by any of the particulars contained in the provisional noticed of demand or the rate or amount of basic tax specified therein may, within the period specified therein, prefer his objections in writing to the prescribed authority, and thereupon the prescribed authority shall, after making due inquiries and after giving the objector and any other person whom it considers necessary, an opportunity of being heard, pass orders on the objections._ _(4) The prescribed authority shall prepare or cause to be prepared the final notice of demand in conformity with its orders under sub-section (3) and shall communicate such order and final notice of demand to the landholder concerned and any other person liable to pay the basic tax in respect of the land.”._ 20. It is true that Section 6A of the Act provides that the R.S.A.No.126 of 2019 19 prescribed authority shall serve notice on the land holder concerned and any other person liable to pay the basic tax in respect of any land specifying the extend of land, rate and amount of basic tax payable etc. But in the present case, the title of the plaintiffs over the plaint schedule property has already been found in favour of the plaintiffs and that finding has not been further challenged also. The only contention is that without a prayer for consequential relief the suit for declaration will not lie. 21. Ext.X1 the proceedings of the Land Board initiated at the instance of the Krishna Bhat is in his capacity as the Secretary of the Sangham. The 1[st] plaintiff was not a party in that proceedings. Ext.B4 is only a report of Special Deputy Tahasildar which would state that an extent of 1.30 acres of property has been gifted by the 1[st] plaintiff in favour of 1[st] defendant sangha prior to 1956. That case put up by the defendants has already been found against the defendants. So Ext.B4 report or Ext.X1 proceedings of the Taluk Land Board has already been found to be not sufficient to prove the case of the defendants regarding R.S.A.No.126 of 2019 20 the gift of property by the 1[st] plaintiff in favour of 1[st] defendant sangha. So the demand notice issued under Section 6A or 7(3A) by itself will not prove that the defendant Sangha is the land holder of the plaint schedule property. Those revenue records as has been rightly found by the court below can be taken to have been initiated for fiscal purposes and will not prove the actual possession of the schedule property with the defendants. 22. The learned counsel for the plaintiffs in this context placed relies on **Larson T. George and Another v. State of Kerala and Others 2019 (1) KLT 128 : 2018 (5) KHC 960** wherein while dealing with Section 5 of the Kerala Land Tax Act 1961 it has been held that grant of mutation and acceptance of basic land tax itself will not amount to conferment of title. A portion of para No.6 of the said judgment is relevant in this context to be extracted which reads thus: _“…...................... It is also trite by a series of rulings of the Apex Court and various High Courts as that in Surney v. Inder Kaur, 1996 KHC 964:AIR 1996 SC 2823: (1996) 6 SCC 223 etc., that mutation of the property and acceptance of land tax will not by itself_ R.S.A.No.126 of 2019 21 _either create or extinguish title, nor has it any presumptive value on title and it only enables the person in whose favour the mutations are ordered to pay land revenue in question. This aspect of the matter is also amplified with all clarity in R.16 of Transfer of Registry Rules, which explicitly mandates that the summary enquiry and decision thereon is only an arrangement for fiscal purposes and does not affect the legal rights of any person in respect of any lands covered by the decisions in such transfer of registry cases and that the question of legal rights is always subject to adjudication by Civil Courts and pattas and that pattas would be revised from time to time in accordance with such judicial decisions, etc................”_ 23. In the present case, the demand notices Exts.B1 and B2 or Ext.B3 series tax receipts will not either create title on 1[st] defendant or extinguish the title of the 1[st] plaintiff over the plaint schedule properties and the summary enquiry and decision as per Rule 16 of Transfer of Registry Rules is only an arrangement for fiscal purposes and does not affect the legal rights of any person in respect of any lands covered by the decisions in such R.S.A.No.126 of 2019 22 transfer of registry cases and question of legal rights is always subject to adjudication by civil courts. 24. Ext.B4 is the certified copy of the report of the Special Deputy Tahsildar, Kasaragod with respect to Taluk Land Board proceedings, which, according to the appellants would show that the plaint schedule property has been gifted to the first defendant and as per the report, the transaction took place prior to 1956. Ext.B4 proceedings is with respect to ceiling case of the first plaintiff and re-opening of report submitted earlier and ultimately it was found that the joint family of first plaintiff holds 16.30 Acres of land as on 01.01.2017 and the family can retain 18 Acres of land. Hence the family is not liable to surrender any land. There is, therefore, no scope for reopening of the case. Ext.X1 series is the proceedings of Taluk Land Board pertaining to the first defendant Sangha. In the report of Special Tahsildar attached with Ext.X1, the plaint schedule property having an extent of 0.05 cents in Sy.Nos.261/1 and 347/7 and 1.30 Acres in Sy.No.347/7 is shown as the property of the Sangha. 25. The learned counsel would rely on Section 85(9) of the R.S.A.No.126 of 2019 23 Kerala Land Reforms Act, 1963, which enables the Taluk Land Board at any time to set aside its order under Sub Section 5 or Sub Section 7 and proceed afresh under that Sub section on satisfying that the extent of land surrendered by or assumed from a person under Section 86 is less than the extent of land which he was able to surrender under the provisions of this Act or the land surrendered or assumed from a person are not lawfully owned or held by him or in case where a person is not liable to surrender any land according to such order, such person owns or holds lands in excess of the ceiling area, to substantiate that the Taluk Land Board is well within the powers to review its order. So, according to the Learned counsel for the appellants, Ext.B4 report of the Special Tahsildar as well as Ext.X1, the Taluk Land Board proceedings would prove that the first plaintiff got exemption in the ceiling proceedings showing the plaint schedule property as the property of Sangha and obtained a benefit from surrender of excess land in the ceiling proceedings and the Sangha also shown the plaint schedule property as their property in the Taluk Land Board proceedings and those documents R.S.A.No.126 of 2019 24 coupled with the tax receipts produced from the side of the defendants would prove that the possession of the plaint schedule property is with the first defendant Sangha. 26. Here, admittedly by DW1 in Ext.X1 proceedings, first plaintiff was not a party. Ext.B4 is certified copy of a report prepared by Special Tahsildar in connection with Taluk Land Board proceedings. In Ext.B4, the Special Tahsildar has reported that 1.30 Acres of property in Sy.No.347/7 has been gifted in favour of first defendant Sangha and the transaction took place prior to 1956. But first defendant failed to prove execution of gift deed by the first plaintiff in favour of the first defendant. Moreover, in Ext.B10, the letter alleged to have been given by the first plaintiff to the Sangha, he had undertaken to execute a document and no document has been admittedly executed by the first plaintiff. Ext.B10 document is not accepted by the courts below as true and genuine also. So, the findings of the courts below that the proceedings of the Taluk Land Board alone will not help the first defendant to prove actual physical possession of the property and that both 2[nd] defendant and first defendant could R.S.A.No.126 of 2019 25 not furnish any material to prove their actual control or dominion over the property cannot be said as erroneous or perverse. 27. DW1, the Secretary of first defendant Sangham during cross-examination categorically admitted that first plaintiff was in possession of plaint A schedule property as absolute owner. He also admitted that defendants 1 to 5 never trespassed into the plaint A schedule property and took wrongful possession of the property. It is further admitted that first plaintiff never transferred his right and title to defendants 1 to 5 by means of any document. Further, he deposed that first plaintiff gifted the property to Sangha orally. As per section 17(1)(b) of the Registration Act any transfer of property worth more than Rs.100/- should be by a registered document. Defendants have no contention that plaint schedule property was worth Rs.100/during the relevant time. It has also come out that there are no constructions or other structures in plaint schedule property though the first defendant is a society running several schools, colleges etc. First defendant has no property adjacent to the plaint schedule property also. So, I do not find any justifiable R.S.A.No.126 of 2019 26 reason to take deviation from the findings made by the fact finding bodies that the defendants could not prove the possession or control over the plaint schedule property. Hence, the argument advanced by the learned counsel for the appellant based on Exts.X1, B4 as well as Exts.B1, B2 and B3 series are not sufficient to interfere with the findings made by the courts below regarding the failure of the defendants to prove the actual control or dominion over the property to prove the possession of the plaint schedule property. 28. Next question is with regard to the maintainability of the contention of the bar under Section 34 of the Specific Relief Act for the first time at the second appellate stage. It has been vehemently contended by the learned counsel for the plaintiff that no argument was advanced and no finding also made by the courts below in this regard. So, the appellants are estopped from raising such contention at the second appellate stage. In this context, learned counsel for the appellant would contend that in the written statement of the 5[th] defendant, a specific contention regarding the bar under Section 34 of the Act has been raised. R.S.A.No.126 of 2019 27 Trial court while answering issue No.7 has found that question of possession over the property is also not determined in favour of any of the contesting parties. Hence it is concluded that there is no scope for contending that proviso to section 34 of Specific Relief Act prohibits declaration of title in the absence of consequential relief of recovery of possession. But no issue was raised in that regard. 29. **Akkamma & Ors. v. Vemavathi & Ors : 2021 SAR Online (SC) 728** was brought to my attention by the learned counsel for the plaintiff to substantiate the contention that sole relief of declaration without any consequential relief is barred by proviso to Section 34 of the Specific Relief Act, 1963. In that decision, **Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) through Legal Representatives and Ors. : 2013 SAR (Civ) 509 : (2014) 14 SCC 502** has been quoted wherein in paragraph 24 it has been held that a mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought R.S.A.No.126 of 2019 28 relief, provided that it is saved by limitation. It is also held that it is obligatory on the part of the defendants to raise the issue at the earliest. That seems to be based on the sound principles of law that raising such contentions at the later stage would cause prejudice to the opposite party since his right to incorporate the plea by way of amendment would be taken away if it is raised at a later stage. 30. In the present case, even though in the written statement filed by the 5[th] defendant a specific contention regarding the bar under Section 34 of the Specific Relief Act has been raised, no issue has been framed by the trial court in that regard. So, as rightly contended by the learned counsel for the plaintiff, the defendant without raising any issue before the trial court is estopped from raising such a contention in the second appellate stage. It will cause prejudice to the plaintiff since if at all such an issue was raised before the trial court he could have very well sought for amendment of the plaint adding the consequential relief. So, the contention of the learned counsel for the plaintiff that the defendants without raising such an issue R.S.A.No.126 of 2019 29 before the courts below is estopped from raising such a contention at this stage cannot be brushed aside in toto. 31. Learned counsel for the appellant in this context bring to my attention **Mahant Indra Narain Das v. Mahant Ganga Ram Das and another : AIR 1955 Allahabad 683** . That was a case in which plaintiff filed a suit for declaration that the plaintiff was the Mahant of certain buildings. While dealing with Section 42 of the Specific Relief Act, 1877 (corresponding to Section 34 of the present Act), it has been discussed that Section 42 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 court has given discretion to make a declaration sought for and plaintiff need not seek for any further relief. But the relief of declaration being discretionary no person can claim 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 and not by legislature and the discretion cannot be exercised arbitrarily but must be exercised in R.S.A.No.126 of 2019 30 accordance with the settled principles of law. It is also held that relief of declaration is not to be granted when plaintiffs being able to seek further relief than a mere declaration of title, omits to do so. It is also held that by reading the last clause of the main section wherein it is stated that the plaintiff need not ask for any further relief and the proviso together, it appears that the proviso refers to a relief that the plaintiff may or may not ask for it and plaintiff must seek in order to get actual and substantial relief suitable for him. 32. On going through the above decision, what could be gathered is that relief of declaration can alone be sought for by a plaintiff and it is up to the court to decide being a discretionary relief either to grant it or not. If at all there is no further relief to be asked at the time of filing the suit than the declaration, the parties are well within the powers to seek for a declaratory relief alone. 33. **Ram Saran v. Ganga Devi : AIR 1972 SC 2685 : 1973 (2) SCC 60 : 1972 KHC 819** though relied on by the learned counsel for the plaintiff, that was a case in which R.S.A.No.126 of 2019 31 defendant is in possession of some of the properties and the plaintiff in the suit did not seek possession of those properties but merely claimed a declaration that he is the owner of the suit properties. It was in that context it was held that the suit is not maintainable as per Section 42 of the Specific Relief Act, 1877 since by merely granting a relief of declaration, the plaintiff will be nowhere since the possession is with the defendant. So the consequential relief of possession is a must in such cases and it was in the above circumstances it was held that bar under Section 42 of the old Act would apply. 34. **Vinay Krishna v. Keshav Chandra and Another : AIR 1993 SC 957** was also a case in which the plea of bar under Section 42 came up for consideration. Suit was for declaration of share in property and the plaintiff was not in exclusive possession of the property because two other persons and also tenants were in occupation of the scheduled property. It is in the said circumstances it was held that the failure of the plaintiff to claim relief of possession bars the relief of the plea for declaration alone since the plaintiff has no exclusive possession R.S.A.No.126 of 2019 32 of the plaint schedule property. 35. **Mehar Chand Das v. Lal Babu Siddique and Others : 2007 SAR (Civil) 331.** was also a suit for mere declaration and the plaintiff was not in possession of the suit properties. In that case, the suit was filed against the appellant/defendant who was a tenant and he was a landless person and a 'parcha' was purported to have been granted by the Collector in terms of Section 6 of the Bihar Privileged Persons Homestead Tenancy Act, 1947. Plaintiff filed suit for eviction under the provisions of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947. The suit was dismissed and no appeal was filed and another suit was filed on the premise that the 'parcha' issued under Section 6(2) of the Act was without jurisdiction and fraudulently obtained. The relief sought was to set aside the order of Block Development Officer as without jurisdiction and fraudulently obtained and any other relief or reliefs which may be deemed suitable to a decree that may be passed. In that context, it has been held that the defendant/appellant had been in possession of the suit property and hence the R.S.A.No.126 of 2019 33 plaintiff/respondent could seek for further relief other than for a decree of mere declaration of title. 36. In **Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar v. Chandran and Ors. :** **MANU/SC/0147/2017** plaintiff filed a suit seeking for a declaration and mandatory injunction. Both the trial court and appellate court dismissed the suit. But, High Court reversed the judgment and decree, against which the defendants approached the Apex Court. In that case, it has come out in evidence that defendant temple is in possession of the suit property for a long period. So, the contention of the defendant that a suit for mere declaration when the plaintiff was not in possession of the property was not maintainable and is hit by Section 34 of the Specific Relief Act, 1963 was accepted and the suit was held to be not maintainable and the dismissal of the suit by the trial court was upheld since the plaintiff was not in possession of the suit property and claimed only the declaratory relief along with mandatory injunction. If the plaintiff is out of possession, the recovery of possession was a further relief which ought to have R.S.A.No.126 of 2019 34 been claimed by the plaintiff and it was held that suit filed by the plaintiff for a mere declaration without a relief for recovery of possession was not maintainable and the view of the trial court was upheld and the judgment and decree passed by the High Court was set aside. 37. **Akkamma** referred above was also relied on by the counsel for the appellant as well as that of the plaintiff. That was a suit filed for declaration and consequential injunction. But the plaintiff failed to prove possession and in that context it was held that proviso to Section 34 of the Specific Relief Act is not a bar in granting the relief of mere declaration. So, in that case, though the plaintiff sought for a consequential relief of injunction also plaintiff could not prove possession of the schedule property and in that context, it was held that since the possession of the suit property was not established by the plaintiff, the relief of injunction cannot be granted. The bar contained in proviso to Section 34 of the Specific Relief Act was held to be not applicable in the case since plaintiff has sought for relief of injunction. But, for the reason that he could not prove possession, the R.S.A.No.126 of 2019 35 prohibition contained in Section 34 is held to be not applicable since the bar under Section 34 operate only if the sole relief is for declaration without any consequential relief. 38. In the present case, the plaintiff claimed for declaratory relief alone without any consequential reliefs. But the defendant could not prove their de facto possession of the plaint schedule property and the specific finding of the courts below is to the effect that either of the parties is in actual dominion or control over the property to find the factum of physical possession in their favour but the title of the plaintiff over the schedule property has been found in favour by the courts below concurrently. When the defendants failed to prove possession of the schedule property the maxim that possession follows title can very well be applied as contended by the learned counsel for the plaintiff. As has been held in **Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRs and Others : 2008 KHC 6249 : AIR 2008 SC 2033 : 2008 (3) KLT SN 30** it has come out that the plaint schedule property is a dry land and the first defendant society has no property adjacent to the plaint schedule properties R.S.A.No.126 of 2019 36 and it is a bare land without any buildings. So, as has been held in paragraph 14 of the above decision if the property is a vacant site which is not physically possessed, used or enjoyed, in such cases the principle is that possession follows title. If two persons claimed to be in possession of a vacant site, one who is able to establish title thereof will be considered to be in possession as against the person who is not able to establish title. DW1 admitted that they have no property adjacent to the plaint schedule property. The defendants claim to have been in possession of the schedule property from 1956 onwards. Absence of any construction inspite of the fact that first defendant is an educational society would strengthen the case of the plaintiffs that the title follows possession can very well be applied in the present case. Moreover, DW1 admitted during cross-examination that portion of suit property was sold by first plaintiff to KACMS, and that is on the eastern part of suit property. He further pleads ignorance as to whether the said sale was held in 1964. If at all the property is in the absolute possession and enjoyment of defendants, first plaintiff could not R.S.A.No.126 of 2019 37 have sold portion of property. That fact also belie the case of the defendants that they are in possession of the suit property. So, an overall evaluation of facts, circumstances and evidence, I do not find any justifiable reason to interfere with the concurrent findings of the courts below. Based on the above discussion, it is concluded that regular second appeal is found to be devoid of any merit and hence dismissed with cost of 2[nd] plaintiff/1[st] respondent. (sd/-) **M.R.ANITHA, JUDGE** jsr