IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 RSA.NO. 507 OF 2009() ------------------------------- AS.114/2004 OF ADDITIONAL DISTRICT COURT, PALAKKAD OS.475/2001 OF PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT - SUPPL.2ND APPELLANT – NO PARTY: -------------------------------------------------------------------- ENATHI SIVARAMAN NAIR, S/O. PADMANABHAN NAIR, AGED 68 YEARS, ENATHI HOUSE, KODUNTHIRAPPULLY, PALAKKAD. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENT(S) RESPONDENTS 1 TO 3 – DEFENDANTS 1 TO 3: -------------------------------------------------------------------------------------- 1. THE PIRAYIRI GRAMA PANCHAYAT, PIRAYIRI, PALAKKAD, REPRESENTED BY ITS SECRETARY. 2. THE PRESIDENT, PIRAYIRI GRAMA PANCHAYAT, PIRAYIRI, PALAKKAD. 3. THE SECRETARY, PIRAYIRI GRAMA PANCHAYAT, PIRAYIRI, PALAKKAD. 4. P.R.PRASAD, S/O. PULIYASSERY RAMANKUTTY NAIR,AGED 36 YEARS, SUGANDHI NIVAS, KOKKOTTUTHARA P.O., KODUNTHIRAPPULLY, PALAKKAD. ADV. SRI.U.BALAGANGADHARAN FOR R1 TO 3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO. 507 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 15th day of December, 2009 J U D G M E N T ---------------------- Respondent Nos.1 to 3 appear through counsel. 2. Second Appeal arises from judgment and decree of learned Additional District Judge, Palakkad in A.S. No.114 of 2004 arising from judgment and decree in O.S. No.475 of 2001 of learned Munsiff, Palakkad. Appellant sued the respondents for recovery of possession of the suit property alleging that it belonged to Shree Puthiyakakkot Bhagavathy Temple, Kodunthirappully (for short, “the Temple”) and that respondents trespassed into the said property. In item No.1 of the schedule property respondents constructed a tarred road and opened a borewell. Appellant, claiming to be a worshiper of the Deity in the Temple filed the suit for recovery of possession. Respondents resisted the suit inter alia contending that appellant has no right to institute a suit for recovery of possession in the way the suit is framed. They also contended that the Temple Committee surrendered the property for construction of the road. Though trial court found that Temple Committee had surrendered the property for construction of the road and other activities, first appellate court found that there is no valid surrender. But the prayer for recovery of possession was disallowed by both the courts for the reason that R.S.A. NO.507 of 2009 -: 2 :- appellant has not instituted the suit for and on behalf of the Deity and representing it as its next friend. Hence the Second Appeal. It is contended by learned counsel for appellant that though it is not stated in so many words in the plaint, appellant has filed the suit in his capacity as a worshipper for and on behalf of the Deity. Argument is resisted by counsel for respondent Nos.1 to 3. 3. Indisputably the suit as framed is not one for and on behalf of the Deity. Appellant in his individual capacity has filed the suit. The suit ought to have been filed, if according to the appellant property belonging to the Temple has been taken possession of by the respondents for and on behalf of the Deity representing it as its next friend. In my view courts below are justified in holding that the suit as framed is not maintainable. That finding in my view is correct legally and factually and does not involve any substantial question of law requiring admission of this Second Appeal. Resultantly, Second Appeal is dismissed in limine reserving the right, if any of the appellant to file a fresh suit for and on behalf of the Deity and as provided under law. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.507 of 2009 -: 3 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.507 OF 2009 =================== J U D G M E N T 15TH DECEMBER, 2009