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. 1299 OF 2009() --------------------------------- AS.92/2009 OF ADDL. DISTRICT COURT, NORTH PARAVUR OS.91/2001 OF MUNSIFF COURT,ALUVA .................... APPELLANT – APPELLANT -PLAINTIFF: --------------------------------------------------- AYYAPPAN, AGED 73 YEARS, S/O.KADALASSERI VELAYUDHAN, MAMBRA KARA, PARAKADAVU VILLAGE, ALUVA TALUK. BY ADV. SRI.FRANCO T.J. RESPONDENT(S) – RESPONDENTS - DEFENDANTS: -------------------------------------------------------------------- 1. NARAYANAN, S/O.KADALASSERI KUTTAN, MAMBRA KARA, PARAKADAVU VILLAGE, ALUVA TALUK. 2. VISWAMBHARAN, S/O.KADALASSERI KUTTAN, MAMBRA KARA, PARAKADAVU VILLAGE, ALUVA TALUK. 3. PUSHPAKARAN, S/O.NARAYANAN KADALASSERI HOUSE, MAMBRA KARA, PARAKADAVU VILLAGE, ALUVA TALUK. 4. SHIBU, S/O.NARAYANAN KADALASSEI HOUSE, MAMBRA KARA, PARAKADAVU VILLAGE, ALUVA TALUK. 5. THANKAPPAN, S/O.IKKORAN @ KUTTAN, KADALASSERI HOUSE, MAMBRA KARA, PARAKADAVU VILLAGE, ALUVA TALUK. 6. PARUKUTTY, D/O.IKKORAN @ KUTTAN, KADALASSERI HOUSE, MAMBRA KARA, PARAKADAVU VILLAGE, ALUVA TALUK. 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. 1299 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 15th day of December, 2009 J U D G M E N T ---------------------- Second Appeal arises from judgment and decree in A.S. No.92 of 2009 of the court of learned Additional District Judge, North Paravur which is in challenge of judgment and decree of learned Munsiff, Aluva in O.S. No.91 of 2001. Appellant sought for a declaration that respondents are bound to follow the recitals in Ext.A1, partition deed No.3169 of 1957 regarding conduct of Poojas, festivals and other rituals in the family temple and for an injunction to restrain the respondents from doing any act contrary to the recitals in Ext.A1. It is the contention of appellant that as per agreements (Exts.A2 and A3) entered into between him and respondents he is the first member of the family to perform the poojas, rituals and other religious rites in the temple and that respondents are not permitting him to do the same. Respondents contended that appellant has no exclusive right to perform the poojas, rituals and other religious rites and that since appellant committed breach of such activities in the temple other members were constrained to conduct such religious rites in the temple. Trial court found that there is no material on record to show R.S.A. NO.1299 of 2009 -: 2 :- that appellant has any exclusive right as claimed by him, respondents cannot be prevented from performing the poojas, rituals and other religious rites in the temple in the light of Ext.A1 and dismissed the suit. First appellate court concurred. Hence the Second Appeal. Though appellant relied on Exts.A1 to A3, learned counsel was not able to point out any recital therein which show that appellant as first member of the family is entitled to perform poojas, rituals and other religious rites in the temple. As per Ext.A1 all the four members of the Tarwad have equal rights to perform poojas, etc., in the temple. Though learned counsel referred to the 'Devaprasnam' in the temple and that in that 'Devaprasnam' appellant was accepted as the first person to perform the religious rites in the temple, appellant did not adduce any evidence in that line. Respondent did not admit that in the 'Devaprasnam' appellant was decided as the first member to perform such religious rites in the temple. According to learned counsel respondents have no case that any other person was so appointed. But that is not sufficient to get a declaration. There is also no reason why such a declaration should be granted as parties are bound by the recitals in Ext.A1. Grant of declaration is only discretionary. Considering these aspects and evidence on record I R.S.A. NO.1299 of 2009 -: 3 :- find that appellant is not entitled to the reliefs prayed for in the suit. 2. I do not find any substantial question of law involved requiring admission of this Second Appeal. Second Appeal is dismissed in limine. Interlocutory Application No.2983 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.1299 of 2009 -: 4 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.1299 of 2009 =================== J U D G M E N T 15TH DECEMBER, 2009