IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 SA.No. 147 of 1993(A) --------------------- AS.168/1988 of DISTRICT AND SESSIONS COURT,KOLLAM OS.756/1977 of PRINCIPAL MUNSIFF'S COURT, KOLLAM. .................... APPELLANT(S): RESPONDENTS 1 TO 5 IN AS: ------------------------------------------------------------------- 1. PERUMAN BHAGAVATHY DEVASWOM, PERINADU VILLAGE, REPRESENTED BY ITS MANAGING COMMITTEE. *2. K.VASU PILLAI, PRESIDENT, MANAGING COMMITTEE, PERUMON BHAGAVATHY DEVASWOM, PERINADU. *3. K.BALAN PILLAI, SECRETARY OF ...DO..... ) ) *4. N.GOPALAKRISHNA PILLAI, MEMBER OF ..DO.....) ) DELETED *5. N.PARAMESWARAN PILLAI, MEMBER OF ...DO....) (*APPELLANTS 2 TO 5 ARE DELETED AT THE RISK OF THE APPELLANT AS PER ORDER DTD. 22/10/2003 IN I.A.1012/03) BY SRI.P.SANTHALINGAM, SENIOR ADVOCATE, BY ADV. SRI. JOHN THOMAS, SRI.VIJU THOMAS, SRI.A.D.SHAJAN. RESPONDENT(S): 6TH RESPONDENT IN AS AND APPELLANT IN AS: ----------------------------------------------------------------------------------------------------- 1. JANARDHANAN PILLAI, MEMBER, MANAGING COMMITTEE, PERUMON BHAGAVATHY DEVASWOM, PERINADU. **2. BHARGAVI AMMA, AGED 73 YEARS, D/O.KALLYANI AMMA, RESIDING AT KUNNATHU VEEDU, PERUMON P.O. ( D I E D) LR'S IMPLEADED: Kss ..2/- ...2.... SA.NO.147/1993 **ADDL.RESPONDENTS: R3. OMANA AMMA, D/O.BHARGAVI AMMA, MULANGAL VEEDU, PANAYAM VILLAGE, PERUMON POST, KOLLAM. R4. SARASWAMMA AMMA, D/O. BHARGAVI AMMA, PARAPPATTU PUTHEN VEEDU, PIDAVOOR VILLAGE, PIDAVOOR POST, KOLLAM . ( D I E D) R5. VISWANATHAN PILLAI, MULANGAL VEEDU, PANAYAM VILLAGE, PERUMON POST, KOLLAM. R6. ANANTHAVALLY AMMA, ERAMATHU VEEDU, THALAVOOR VILLAGE, VADAKODUKARA POST, KOLLAM. R7. DEVAKI AMMA, D/O.BHARGAVI AMMA, SANTHOSH BHAVANAM, PANAYAM VILLAGE, PERUMON POST, KOLLAM. R8. RAMACHANDRAN PILLAI, R.S.BHAVANAM, PANAYAM VILLAGE, PERUMON POST, KOLLAM. R9. ARAVINDAKSHAN PILLAI, KANNATHU VEEDU, PANAYAM VILLAGE, PERUMAN POST, KOLLAM. (**ADDL.RESPONDENTS 3 TO 9 ARE IMPLEADED AS THE LRS OF DECEASED R2 AS PER THE ORDER DTD. 01/09/2008 IN I.A.NO.1788/2008). R3 TO R9 BY ADV. SRI.T.K.MARTHANDAN UNNITHAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2010, THE COURT ON 14/07/2010 DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.1789/2008 IN SA.NO.147/1993 DISMISSED 14/07/2010 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 147 of 1993 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2010. JUDGMENT The defendants in O.S. 756 of 1977 before the Principal Munsiff's Court, Kollam, who suffered a decree at the hands of the lower appellate court are the appellants. The parties and facts are hereinafter referred to as they are arrayed before the trial court. 2. The facts of the case have been set out extensively by the courts below in their judgments. It is therefore unnecessary to repeat them, except those facts which are absolutely essential for the disposal of this appeal. 3. 40 cents of land comprised in Sy. No.4932, which belonged to Akavoor Mana, which owned a private Devaswom called Perumon Devaswom in Perinadu Village is the subject matter of the suit. After several assignments, it ultimately came to vest with the plaintiff as per Ext.A1 assignment deed dated 30.7.1951. The S.A.147/1993. 2 plaintiff also redeemed a mortgage. The affairs of Perumon Devaswom was being administered and managed by the hereditary trustees of Akavoor Mana. By Ext.B1 dated 17.5.1972 the trust executed a deed by which the management of the temple and its properties were handed over to the first defendant in the suit. According to the plaintiff, the rights and powers of the Managing Committee was considerably limited and they had no right to interfere with the possession of the plaintiff. They influenced the husband of the plaintiff and he demanded the plaintiff to execute a conveyance deed in his favour so as to safeguard the properties. The plaintiff was unwilling to do so. He therefore instituted a suit against defendants 2 to 6 seeking injunction. That suit was dismissed and it was confirmed in appeal. Thereafter, according to the plaintiff, defendants 2 to 6 in the suit trespassed upon the property and reduced it into their possession. Based on possessory title, she laid a suit for declaration and other consequential reliefs. S.A.147/1993. 3 4. Defendants 1 to 3 resisted the suit. According to them, Akavoor Mana, who owned Perumon Devaswom subsequently had released all their rights over the temple and its property in favour of the members of the Hindu Community in Perinadu East and west as per Ext.B1 dated 17.5.1982. Thereafter the committee took over management and administration of the temple and its properties. The plaintiff's husband had filed O.S. 641 of 1974 against the defendants for the same reliefs. Having lost in that suit, the plaintiff has now come forward with this frivolous suit. The plaint schedule property is not lying separately and is a portion of 4.99 acres of temple property comprised in Sy. No.4932 and 4882 of Perinad Village. The entire property is being used by the temple for various purposes of the temple. According to these defendants, the documents relied on by the plaintiff are fraudulent and not binding on the defendants. Contending that the plaintiff is not entitled to any relief, they sought for a dismissal of the suit. S.A.147/1993. 4 5. The court below raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 to 7 and the documents marked as Exts. A1 to A23 from the side of the plaintiff. The defendants had D.Ws. 1 to 4 examined and Exts. B1 to B21 marked. Exts. C1 and C2 are the Commission report and plan. 6. On an evaluation of the evidence in the case, the trial court came to the conclusion that the plaintiff is entitled to be in possession of the property. However, the court below felt that since the plaintiff claimed a right of tenancy over the suit property, the proper forum to adjudicate the issue was Land Tribunal concerned and holding so, the suit was dismissed. 7. The plaintiff took up the matter in appeal as A.S. 168 of 1988. The lower appellate court felt that there was no issue as such regarding tenancy rights and the suit was based on possessory title alone. On finding that the plaintiff has succeeded in establishing her right to possession, the suit was decreed reversing the findings of S.A.147/1993. 5 the trial court. The said judgment and decree are assailed in this appeal. 8. The following substantial questions of law are seen raised in this Memorandum of Second Appeal: “a) Whether in the facts and circumstances of the case the appellate court was justified in entering into the finding as to the lease hold right of the plaintiff in the absence of an order on reference by the Land Tribunal as provided under Section 125(3), rendering Section 125(3) otiose. b) Whether in the facts and circumstances of the case is the operation of Section 125 is limited to Trial Court alone and in the absence of a reference to the Land Tribunal, whether the Appellate Court can enquire into the tenancy rights of the parties on its own.” 9. Learned counsel appearing for the appellants pointed out that the court below had erred in holding in favour of the plaintiff. The husband of the plaintiff had instituted a suit for the very same reliefs in respect of the very same property as O.S. 641 of 1974. After contest, the trial court dismissed the suit by judgment dated 23.3.1976, S.A.147/1993. 6 which is produced as Ext.B2. The matter was taken up in appeal, but without success. The plaintiff approached this court by filing Second Appeal, which also did not meet with success. The findings in the said suit, according to learned counsel for the appellants, are binding on the plaintiff and the present suit is hit by the principle of res judicata. It was also contended that the property, over which the claim has been laid by the plaintiff, is a portion of the property of the temple and is devaswom property. The plaintiff cannot lay claim over such a land. It was also contended that being a portion of the temple property, the plaintiff is not entitled to the privileges under the Kerala Land Reforms Act. Accordingly, it was contended that the lower appellate court should not have decreed the suit. 10. Per contra, learned counsel appearing for the respondent pointed out that the plaintiff has produced several documents, which would show that she had rights over the suit property. Attention was drawn to the fact that the documents from 1114 M.E. were produced before the S.A.147/1993. 7 trial court and the lower appellate court, after appreciating the evidence in the case, held in favour of the plaintiff. However, the trial court dismissed the suit on a technically non-existing ground. The lower appellate court has only set it right. Accordingly, it is contended that no grounds are made out to interfere with the judgment and decree of the lower appellate court. 11. Before going into the facts of the case, the preliminary objection may be noticed. It is contended that the husband of the plaintiff filed O.S. 641 of 1974 seeking the very same reliefs against the defendants in the case. There, the definite claim of the plaintiff was that the properties were owned by his wife and he was looking after the same. Since the defendant tried to trespass into the property, he had approached the court. Ext.B2 is the certified copy of the judgment in the said suit. That shows that the trial court as well as the appellate court found that P.W.1, the plaintiff in the said case, was not in possession of the property as on the date of suit and dismissed the suit. In S.A.147/1993. 8 fact the trial court had come to a finding that even going by the evidence of the plaintiff in the said case, he is claimed to have been in possession of the property from 1951 onwards. 12. The question is how far the decision in the said case can influence the present suit. At the outset itself, it may be noticed that the plaintiff is not a party to the above suit. Further, the above suit was one for injunction alone. Therefore, only the question of possession was to be determined. Both the courts below have considered these aspects in detail ad have come to the conclusion that the ingredients necessary to attract the principle of res judicata are not available in the case on hand. The reasons given by the court below are convincing enough and therefore no interference is called for with the said finding. Coming to the merits of the case, it has to be found that after hearing both sides and going through the records it is felt that the finding of the lower appellate court is correct and does not call for any interference. S.A.147/1993. 9 13. It is not in dispute that the property involved in the suit originally belonged to Akavoor Mana and it is a portion of the property set apart for the temple. The claim of the defendants that various documents produced by the plaintiff are concocted and fabricated cannot be accepted for want of convincing evidence in that regard. Documents which came into existence as early as in 1114 had been produced. 14. It is true that the plaintiff claimed to be a tenant of the property. Since the suit was based on possession, the question of determining the issue regarding tenancy did not arise for consideration. Therefore, the matter was not sent to the Land Tribunal for determination of the issue as to whether the plaintiff was a tenant coming within the ambit of the Kerala Land Reforms Act. The lower appellate court was of the view that that question did not arise for consideration. 15. It needs to be noticed that the defendants in the case had produced Ext.B5 dated 22.5.1976, which is a S.A.147/1993. 10 copy of the order in SMP No.3609A/76 in A.P/73. It is contended on behalf of the contesting defendants that that was a suo motu proceedings in which it was found that the plaint schedule property being a part of the temple property cannot form the subject matter of assignment. The said finding of the trial court, according to learned counsel appearing for the appellant, is applicable in the present case also. Having found that the property is devaswom property, it is contended that the plaintiff in the present case cannot maintain the suit. 16. Before coming to the said question, it is useful to see how the plaintiff traced her title. As already stated, the properties belong to the temple, which was owned by Akavoor Mana. Plaintiff traced title to Exts.A4, A8 and A11. As per Ext.A4 document, one Govinda Pillai obtained the plaint schedule property. After his death, a partition took place in the family of Govinda Pillai, which is evidenced by Ext.A8. It would appear that along with other items, plaint schedule property was allotted to the share of Nangeli S.A.147/1993. 11 Amma, who is the wife of Govinda Pillai. Nangeli Amma sold the property to her daughter-in-law, who is the present plaintiff, as per Ext.A11. At that point of time, there was an outstanding mortgage. As per Ext.A14, it is claimed that the mortgage was redeemed. Thus, it is pointed out that the plaintiff became the absolute owner of the property. 17. Even assuming that all that the plaintiff says is true, the fact remains that the finding of the Land Tribunal is that the property forms part of the temple compound and therefore stands exempted under the provisions of the Kerala Land Reforms Act. Exts.C1 and C2 are the Commission report and plan. Ext.C2 plan shows the location of the plaint schedule property. A reading of the commission report will clearly show that the plaint schedule property is a portion of a large temple compound, which belongs to the Devaswom. 18. As rightly noticed by the lower court, even assuming that the defendants have a right to manage and administer the properties of the temple, one fails to see how S.A.147/1993. 12 they could forcefully take possession of the properties. Even assuming that the plaintiff is not a tenant, still they can take possession of the property only through the known means of law and they cannot achieve their object by force. There cannot be any doubt regarding the fact that the plaintiff is in possession of the suit property. The mortgage came to an end in 1964. 19. May be that the defendants have legal right to recover the property from the plaintiff. But that has to be done in accordance with law. They cannot take law into their hands and forcefully dispossess the plaintiff. Of course, it is true that the plaintiff cannot claim fixity of tenure under the Kerala Land Reforms Act, who is entitled to get a purchase certificate in respect of the property. However, her possession cannot be said to be illegal and she came into possession by lawful means. There is nothing to show that the lease has been terminated. Reserving the liberty of the defendants to proceed in accordance with law, and to recover the property, if they S.A.147/1993. 13 are entitled to do so, this appeal is dismissed confirming the judgment and decree of the first appellate court. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.