IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 RSA.No. 545 of 2011() --------------------- AS.55/1998 of I ADDL.SUB COURT,TRIVANDRUM OS.955/1995 of II ADDL.M.UNSIFF COURT.,TRIVANDRUM .................... APPELLANTS/APPELLANTS 3, 5 and 6/LEGAL HEIRS OF IST PLAINTIFF ---------------------------------------------------------------------------------------------------- 1. THRESSIAMMA, KUTTICHALKONAM, PUTHUVAL PUTHEN VEEDU, KADAPPANAKUNNU P.O., THIRUVANANTHAPURAM. 2. Y.EDWARD, S/O.LATE M.YOHANNAN, GEEJA COTTAGE, GNP 61, PEROORKADA P.O., THIRUVANANTHAPURAM. 3. Y.SANNU, THEKKEVILA PUTHEN VEEDU, NETTAYAM P.O., THIRUVANANTHAPURAM. BY ADV.P.G.PARAMESWARA PANICKER (SENIOR) BY ADV. SRI.P.GOPAL RESPONDENT(S): RESPONDENT AND 2ND APPELLANT/DEFENDANT & 2ND /PLAINTIFF --------------------------------------------------------------------------------------------------------------------------- 1. CHARLES MANI, HOUSE NO.33, LEKSHAM VEEDU COLONY, KUDAPPANAKKUNNU, PEROORKADA P.O., THIRUVANANTHAPURAM, PIN-695005. 2. T.M.PHILIP, KUZHIVILA VEEDU, KOVALAM P.O., THIRUVANANTHAPURAM, PIN-695001. ADV. SRI.S.RAJASEKHARAN NAIR CAVEATOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 545 OF 2011 =========================== Dated this the 4th day of August,2011 JUDGMENT Second plaintiff and legal heirs of deceased first plaintiff in O.S.955/1995 on the file of II Additional Munsiff Court, Thiruvananthapuram are the appellants. First respondent is the defendant. Appellants instituted the suit seeking a decree for declaration that Ext.A1 decree in O.S.562/1973 on the file of Munsiff Court, Thiruvananthapuram is null and void and is not valid and binding on the appellants and also declare that appellants are in possession of plaint A and B schedule properties and a permanent prohibitory injunction restraining respondent from trespassing into the plaint A and B schedule properties. Appellants contended that plaint A schedule property was RSA 545/2011 2 purchased by the first appellant on 6.1.1973 under Ext.A2 and plaint B schedule property was purchased by the second appellant under Ext.A3 sale deed dated 28.4.1973 from the daughter of the second appellant and respondent is the son-in-law of the second appellant. Appellant and respondent are members of religious community known as South India Apostolic Church of God. Respondent claimed to be the Secretary of the said religious community and instituted O.S.562/1973 before Munsiff's Court, Thiruvananthapuram seeking a decree for declaration of right and possession over plaint A and B schedule properties alleging that the property belongs to the Church. The suit was decreed by the trial court finding that respondent is the General Secretary of South India Apostolic Church of God. Another suit was filed by Paster C. Sundaram, as President against the respondent and some others for declaration that respondent is not entitled to represent the Church from 1971 onwards and as he RSA 545/2011 3 was excommunicated. O.S.318/1980, the said suit was decreed. As per the decree respondent is not entitled to represent the Church from 3.7.1971 onwards and therefore Ext.A1 decree is vitiated by fraud, misrepresentation and mistake of fact and therefore appellants are entitled to a decree for declaration as sought for. It was also contended that respondent had filed O.A.126/1973 before the Land Tribunal for purchase of jenm right and the Land Tribunal, Thiruvananthapuram by Ext.A4 order dismissed that application holding that respondent is not in possession of the property and eventhough respondent filed an appeal against the said order it was dismissed and based on Ext.A1 decree respondent attempted to trespass into the property and he has no right to do so and therefore he is to be restrained by a permanent prohibitory injunction. Respondent resisted the suit contending that description of the plaint schedule property is not correct and five cents of property RSA 545/2011 4 in survey No.1342 of Kudapanakunnu Village belongs to South India Apostolic Church of God and from 1962 onwards there is a prayer hall in the said property and second appellant was the president of religious community from 1966 onwards and on 3.7.1971 second appellant was excommunicated from the church due to misconduct and mismanagement of church affairs and the said five cents was purchased in the name of the second appellant for the church, while he was the president of the church committee using the funds of the Church and after he was expelled from the Church second appellant along with the first appellant tried to trespass into the plaint schedule properties and therefore respondent instituted O.S.562/73. The suit was decreed. It was challenged in A.S.46/1977. It was dismissed under Ext.B1 judgment. Hence appellants cannot claim that they are in possession of the property. There is no fraud or mistake of fact or misrepresentation and RSA 545/2011 5 Ext.A1 decree is not vitiated as alleged. It was also contended in view of the decree in O.S.562/1973 first appellant has title and possession to the plaint schedule properties. Thereafter Paster Revt.Sundaram and J. Francis in their capacity as the President and Vice President of the Church filed O.S.318/1980 against the respondent and five others and second appellant was the second respondent in that suit. At the time of filing the suit, there was some dispute between the respondent and the office bearers and the suit was decreed on 28.3.1981 and A.S.489/1982 was filed before the District Court, Thiruvananthapuram. While so the disputes were compromised evidenced by Ext.B2 judgment and the right of the respondent was approved by the first appellant in O.S.318/1980 and respondent was not excommunicated from the Church from 1971 and respondent has right to represent the Church at the time of filing of the said suit and therefore appellants are not RSA 545/2011 6 entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws. 1 to 3, DW1 to 3, Exts.A1 to A7 and B1 to B6 dismissed the suit holding that Ext.A1 decree is not vitiated and Ext.A1 decree was upheld under Ext.B1 judgment and in such circumstances, when Ext.A1 is binding on the appellants, appellants are not entitled to the decree sought for. Appellants challenged the judgment before Additional Sub Court, Thiruvananthapuram in A.S.55/1998. During the pendency of the appeal, first appellant died and appellants 3 to 6 were impleaded as his legal heirs. Learned Sub Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeals. It is challenged in the Second Appeal. 3. Learned counsel appearing for the appellants was heard. 4. The argument of the learned counsel appearing for the appellants is that in RSA 545/2011 7 O.S.318/1980, evidenced by Ext.A5 judgment, it was found that respondent cannot represent the Church from 3.7.1971 onwards, and as O.S.563/1973 was instituted after 3.7.1971, respondent cannot represent the Church and therefore it is vitiated by misrepresentation, mistake of fact and fraud and respondents could not have obtained a decree on behalf of South India Apostolic Church of God. It was also argued that the mode of acquisition of the plaint schedule A and B properties were not approved in O.S.318/1980 and in such circumstances courts below should have found that Ext.A1 decree in O.S.562/1971 is not valid and binding on the appellants or the plaint schedule properties and respondent cannot claim any right in the plaint A and B schedule properties. Learned counsel argued that the courts below did not properly appreciate the scope of Ext.A5 judgment as well as Ext.B3 decree and in such circumstances a decree for declaration and injunction as sought for should RSA 545/2011 8 have been granted. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. Though appellants contended that Ext.A1 decree is vitiated by fraud, misrepresentation and mistake of fact, it is based on the contention that the acquisition of the property by the respondent for the Church was not approved in O.S.318/1980, evidenced by Ext.A5 judgment. Though in O.S.318/1980 as seen in Ext.A5, court has already found that respondent has no authority to represent the Church from 3.7.1971 and the decree in O.S.562/1973 was obtained after that date, based on Ext.A5 judgment it cannot be said that Ext.A1 decree is vitiated by misrepresentation, mistake of fact or fraud and hence Ext.A1 decree is not valid and binding on the appellants. Ext.A1 decree was passed against the appellants. Appellants cannot ignore it. Ext.A1 was challenged in RSA 545/2011 9 A.S.46/1977. Under Ext.B1 judgment Ext.A1 decree was confirmed. Though in Ext.A5 judgment it was found that respondent was not competent to represent the Church as he could not continue to be the office bearer of the Church from 3.7.1971, that does not vitiate the decree obtained in O.S.562/1973 as that decree was not obtained by the respondent personally but for the South India Apostolic Church of God. Ext.A5 judgment was challenged before District Court, Thiruvananthapuram in A.S.489/1982. Evidenced by Ext.B2 and B3, during the pendency of the appeal the disputes between the plaintiffs and defendants in O.S.318/1980 were settled. The appeal was disposed accepting the compromise between the parties. Ext.B3 the compromise decree establishes that Church has no case that plaint schedule A and B schedule properties do not belong to the Church or the acquisition of the properties was not for the Church. The dispute was only with RSA 545/2011 10 regard to the competency of the respondent to represent the Church as according to plaintiff in that suit, he was excommunicated. But under Ext.B2 and B3 plaintiff in that suit has not pressed the case of excommunication and respondent was granted the right of workship. In such circumstances as rightly found by the courts below,appellants cannot contend that Ext.A1 decree is vitiated based on Ext.A5 judgment, as modified under Ext.B3 decree. 7. When Ext.A1 decree is binding on the appellants and it was already found that the plaint A and B schedule properties belong to the Church and the Church is in possession of the property, suit can only be dismissed. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006