IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 RSA.No. 1252 of 2008() ---------------------- AS.72/2007 of I ADDL.SUB COURT, THRISSUR OS.750/2001 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANT ----------------- GANGADHARA MENON, S/O. MARAVANCHERY LAKSHMIKUTTY AMMA, POONKUNNAM DESOM, THIRSSUR VILLAGE, THRISSUR TALUK. BY ADV. SRI.THIYYANNOOR RAMAKRISHNAN RESPONDENT(S): RESPONDENT ------------------------- THE PRESIDENT, SANKARANKULANGARA DEVASWOM, THRISSUR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/01/2009, THE COURT ON 30/01/2009 PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 1252 of 2008 * * * * * * * * * * * * * * * * * * Dated: 30-01-2009 JUDGMENT The plaintiff in O.S. 780 of 2001 on the file of the Munsiff's Court, Thrissur is the appellant in this Second Appeal. The said suit was one for a declaration that one of the members of the plaintiff's tarvad by name Maravanchery tarvad is the trustee of the first defendant Devaswom Temple namely the Sankarankulangara Devaswom, that the members of the said tarvad are entitled to conduct yearly rituals like Mandalampattu, Manikandan pattu and Bharani Ooottu in the month of Dhanu, that one of the members of the said tarvad should be elected as a member of the governing body of the first defendant Devaswom and for a consequential injunction restraining the President of Sankarankulangara Devaswom and the other four defendants from denying the right of the plaintiff's tarvad in offering the first measure (പറ) to the temple during the month of Makaram. 2. The case of the appellant/plaintiff can be summarised as follows:- R.S.A. NO. 1252 of 2008 -:2:- The Sankarankulangara Bhagavathy Temple which is 1500 years old originally belonged to Manakkulam Swaroopam. When the real family found it difficult to administer the temple, the administration was entrusted with the Marvancherry tarvad of the plaintiff. The members of the said tarvad conducted poojas and ceremonies as trustees of the temple as of right openly, publically and to the knowledge of all concerned. With a view to facilitate the said tarvad of the plaintiff to exercise the aforesaid rights, the then head of the family executed Ext.A1 kanakachit as document No. 107/1080 M.E. before the S.R.O. Thrissur. As per the said document the right of the plaintiff's tarvad to conduct 41 days mandalapattu, one day kalampattu to Manikandan and Bharani Ooottu in the month of Dhanu were specifically reserved in favour of the plaintiif's tarvad. Though there was a governing body for the temple the plaintiff's tarvad was not denied any of the aforementioned rights enjoyed by them. However, certain persons with vested interest managed to get elected to the governing body and they devised by-laws for the management of the temple. The said bye-laws are illegal and have not received the approval from the members of the general body. Defendants 2 to 5 were claiming R.S.A. NO. 1252 of 2008 -:3:- certain rights in their favour on the basis of the said bye-laws which are illegal. They filed O.S. Nos. 394 and 416 of 1999 before the Munsiff's Court, Thrissur. Those suits were dismissed. As per Ext.A3 petition dated 19-12-2000 the plaintiff moved the first defendant President of the Devaswom informing him that the trusteeship of the temple belong to the plaintiff's tarvad and that the members of the plaintiff's tarvad have got the right to be the trustees of the temple. The first defendant requested the plaintiff to produce all documents to prove his claim. On 12-1-2001 the plaintiff produced all the documents. But the first defendant shelved the issue under the pretext that civil suits were pending. The rights of the plaintiff have been denied for the past two years. Hence, the suit. 3. Defendants 3 to 5 remained ex-parte. The 2nd defendant appeared but did not file any written statement. The suit was resisted by the first defendant contending inter alia as follows:- The suit is no maintainable. Neither the plaintiff nor any other member of his family has ever been the Oooralan of the temple. The family had entrusted the administration of the temple to the local people namely the people of the thattakam. No R.S.A. NO. 1252 of 2008 -:4:- property was given nor any improvements made in the family temple by the plaintiff's family. A branch of the plaintiff's family resides near the temple within definite boundary walls. The properties of the Devaswom were purchased by the Devaswom giving sufficient consideration. In O.S. 394 and 416 of 1999 filed by the members of Manayattu tarvad at a time when the plaintiff was the President of the Devaswom, he never mentioned a word about the alleged rights of his family in the written statement filed by him. He is estopped from raising present contentions. Rituals such as Mandalampattu for 41 days , Kalampatty for one day and Bharani Oottu during the month of Dhanu etc. can be offered to be performed by any of the family members residing within the temple thattakam. The plaintiffs family has no special or exclusive right to be effected as a member in the managing committee. The plaintiff is not entitled to any of the reliefs as prayed for by him. The suit is, therefore, liable to be dismissed. 4. On the side of the plaintiff he examined himself as P.W.1 and got marked Ext.A1 to A6. On the side of the defendants, the President of the Sankarankulangara Devaswom was examined as DW1 and Exts. B1 to B7 were got marked. The learned R.S.A. NO. 1252 of 2008 -:5:- Munsiff, after trial, as per judgment and decree dated 18-10-2003 dismissed the suit. On appeal preferred by the plaintiff as A.S. No. 72 of 2007 before the Sub Court, Thrissur , the learned Subordinate Judge as per judgment and decree dated 27-6-2008 dismissed the appeal confirming the judgment and decree passed by the trial court. Hence, this Second Appeal. The following are the questions of law formulated in the memorandum of Second Appeal:- i) Is the lower appellate court justified in dismissing the appeal on the ground of non-joinder of D2 to D5 in the lower appellate court. ii) Whether the courts below are justified in not drawing an adverse inference against the respondent in not producing the documents summoned in I.A. 4867/03 in the trial court as per Sec. 114 (g) of the Evidence Act. iii) Whether the dismissal of the suit by the Court's below is legally sustainable as it has not properly appreciated the oral and documentary evidence as per the provisions of the Evidence Act. 5. The learned counsel appearing for the appellant re- iterated before me the contentions of the appellant/plaintiff. 6. I am not inclined to accept the contentions of the appellant. As rightly observed by the courts below, no document was produced by the appellant to show that his predecesssors had R.S.A. NO. 1252 of 2008 -:6:- gifted any item of property to the Sankarankulangara Temple or that they had made improvements therein. Likewise, the appellant had failed to prove that the members of the Maravanchery Tarvad either dedicated or assigned properties to the temple. No material was produced on the side of the appellant to show that his family members were Ooralans (trustees) of the temple. Ext.A1 Kanakachit produced by the appellant also does not show that the members of the appellant's family were Ooralans of the temple. Far from that the recitals in Ext.A1 clearly show that the executee therein has to make payments to the administrator of the temple for performing vazhipadu as any other member of the thattakam. No receipt or any other document was produced by the appellant to show that his family had performed the rituals at any point of time. Both the courts below have chosen not to accept the self interested testimony of the plaintiff examined as P.W.1. Instead, the courts below have accepted the version given by DW1 to the effect that the Sankarankulangara temple which belonged to the Royal Family called Manakkulam Swaroopam had entrusted with the people of the thattakom the task of administration of the temple and the local worshipers had constituted a committee for the administration R.S.A. NO. 1252 of 2008 -:7:- of the temple . Both the courts below have also taken note of the fact that at a time when the plaintiff himself was the President of the Sankarankulangara Devaswom, the tarvad of one Mangatt family had filed two suits as O.S. No. 394 and 416/99 before the Munsiff's Court, Thrissur, claiming trusteeship over the temple. In the written statement filed by the appellant/plaintiff herein in those suits, he had no case that his family had the trusteeship (uraima) over the temple. The appellant who had failed to prove that his family members are entitled to be trustees of the temple and they have got the right to perform the rituals alleged in the plaint was rightly non-suited by the courts below concurrently. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal, which is accordingly dismissed in limine. Dated this the 30th day of January 2009. Sd/- V. RAMKUMAR, (JUDGE) /true copy/ R.S.A. NO. 1252 of 2008 -:8:- ani.