IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 AS.No. 549 of 1991(D) -------------------------------- OS.4/1983 of SUB COURT, TIRUR .................... APPELLANTS - PLAINTIFFS : -------------------------------------- KARUMANKAVU DEVASWOM KSHETHRAM TRUST BOARD MEMEBRS: 1. HONOURARY CAPTAIN K.ACHUTHAN NAMBIAR, SARDA NIVAS, P.O. FEROKE COLLEGE.F 2. PROFESSOR V.K.G. NAIR, S/O. R.V. RAMAN NAIR, RAMVILLA, P.O. FEROKE COLLEGE. 3. V. ASOKAN, S/O. V.SANKARANKUTTY, VYLASSERI VEEDU, P.O. FEROKE COLLEGE. 4. C. BALAN, S/O. UNICHOYI, TELEPHONE OPERATOR, STEEL COMPLEX, CHERUVANNUR, KOZHIKODE. 5. N. RAMAKRISHNAN, S/O. MADHAVAN NAIR, NARAKASSERI VEEDU, P.O. KARADAPARAMBA, AZHINHILAM. BY ADV. SRI.GOVIND K.BHARATHAN RESPONDENTS - DEFENDANTS: ------------------------------------------ 1. VENKITTA CHALIL NANI AMMA'S SON DAMODARANF NAIR, AGED 41 YEARS, VENGERI AMSOM DESOM. 2. M.A. KRISHNAN MOOSSAD'S SON MACHATT SIVASANKARAN MOOSSAD'S WIFE SREEDEVI ALIAS THANKAMANI ANTHARJANAM THYKKATT ILLAM P.O. AZHINIHLAM. 3. MONGANDAMBALATHU AKATTUTTA KRISHNAN MOOSSAD VIZHUPURI P.O., MANIMOOLI, NILAMBUR (DELETED). 4. NELLIKKOTT DEVAKI AMMA, W/O. NELLIKKOTT BHASKARAN, P.O. NELLIKKOTT, KOZHIKODE DISTRICT. 5. MACHATTE SIVASANKARAN MOOSSA, THYKATT ILLAM, AZHINHILAM (DIED). 6. PUDIYA NALAKATH ASYA, W/O.ABOOBACKER, AGED 21 YEARS, VAZHAYUR AMSOM, AZHINILAM. 7. PADUVIL PUSPA, AGED 28 YEARS, D/O. ANDI, W/O.SOMAN, MANADATH PTTAYIL VEEDU, AZHINHILAM. 8. KOTTAYIL CHOYIKUTTY'S SON KUTTAN, AGED 40 YEARS, KARUVANGATTU, KOTTAYIL VEEDU, P.O., AZHINHILAM. THE THIRD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER APPELLANTS AS PER ORDER DATED 24.10.2005 IN I.A. NO.3207 OF 2005. ADDITIONAL RESPONDENTS IMPLEADED: -------------------------------------------------------- 9. ALBUDHAJYOTHI M., W/O. M.K. PRAKASH, THYKKATT ILLAM, AZHINJILAM P.O., FEROKE COLLEGE, (VIA) KOZHIKODE - 673 654. 10. BRAHMANANDAN, S/O.THYKKATT SIVASANKARAN MOOSAD THYKKAT ILLAM, AZHINJILAM P.O. FEROKE COLLEGE (VIA) KOZHIKODE - 673 654. 11. CHANDINI M., W/O.R. GOPALAKRISHNAN, “GOKULAM”, MELAPPURAM, OLAVAKKODE - 678 002. ADDITIOINAL RESPONDENTS 9 TO 11 ARE IMPLEADED AS LRS. OFDECEASED 5TH RESPONDENT VIDE ORDER DATED 6.7.2007 IN I.A. NO.4388 OF 2006. BY ADV. SRI.ANIL SIVARAMAN THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 2.1.2008 ALONG WITH AS NO. 557 OF 1991 THE COURT ON 29.1.2008 DELIVERED THE FOLLOWING: 'C.R.' K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = A.S. NO. 549 OF 1991 AND A.S. NO. 557 OF 1991 = = = = = = = = = = = = = = = = = = = Dated this the 29th day of January, 2008 J U D G M E N T -------------------- These two appeals arise from O.S. No. 4 of 1983 on the file of the Sub Court, Tirur. A.S. No.549 of 1991 is filed by the plaintiffs in the suit. A.S. No.557 of 1991 is filed by defendants 2 and 5 in the suit. Second defendant died subsequently and her legal representatives were impleaded. 2. Facts necessary for the disposal of the appeals are as follows: Plaintiffs, Trust Board Members of Karumankavu Devaswom Temple, had filed the suit for recovery of the suit properties on the following averments. Suit properties originally belonged to one Mongandampulath Tharawad. The Tharawad properties were partitioned as per document No.1347 of 1957. The suit properties were set apart to the Temple and included in A schedule item No.805. In the document it was provided that the seniormost male member of the family shall be Hereditary Trustee of the Temple. He was A.S. NOS. 549 & 557 OF 1991 -: 2 :- authorised to be in possession and management of the properties and he was directed to spent money for the affairs of the Temple. There was a specific provision in the deed prohibiting the Hereditary Trustee from alienating the properties of the Temple or handing over possession of the same to anybody so as to reduce the income. While third defendant was acting as the Trustee, the Hindu Religious and Charitable Endowment Board constituted under the Madras Hindu Religious and Charitable Endowment Act, 1951 (for short “the HR&CE Act”) declared the Temple as a public Temple. The third defendant was allowed to continue as the Hereditary Trustee. He acted against the interest of the Temple. So the Deputy Commissioner, H.R. & C.E. Kozhikode, removed third defendant from Trusteeship and appointed first plaintiff as 'the fit person'. Third defendant was directed to hand over charge and properties and other assets of the Temple to the first plaintiff. Subsequently, as per order No.A2/1790/76 of the Deputy Commissioner, H.R. & C.E. dated 3.11.1976 all plaintiffs were appointed as members of Trust Board of Karumankavu Temple and they are continuing as A.S. NOS. 549 & 557 OF 1991 -: 3 :- such. Though third defendant was removed from trusteeship, he did not hand over the documents, properties, etc., to the members of the Trust Board. Third defendant in collusion with first defendant had obtained a purchase certificate in favour of first defendant in O.A. No.447 of 1973 from the Kondotty Land Tribunal. That certificate was fraudulently obtained and on the strength of the same, first defendant executed a sale deed in favour of second defendant. On the strength of that sale deed, second defendant and the fifth defendant, who is the husband of the second defendant, reduced the property into their possession. They sold a portion of the same to the 4th defendant. First defendant was never a tenant of the Temple properties. Third defendant, who was removed from the trusteeship, was creating documents for his personal gain. When the plaintiffs came to the know about the order of the Land Tribunal, they filed an appeal before the Appellate Authority (Land Reforms) and the same was pending. Certificate of purchase and the sale deed executed were fabricated without any legal effect and brought into existence by playing fraud on the Temple and A.S. NOS. 549 & 557 OF 1991 -: 4 :- hence those documents are not binding on the Temple or Temple properties. Defendants are not entitled to be in possession of the properties and the plaintiffs are entitled to get recovery of the same on the strength of title of the Temple for and on behalf of the Temple. Defendants 2 and 5 sold some portions of the suit properties to defendants 6, 7 and 8 and they are also claiming possession over some portions of the properties. Defendants 1, 4 and 5 were trying to alienate the properties to strangers and to commit waste in the properties. Hence the suit for recovery of the properties on the strength of the rights of the plaintiffs and for other reliefs. 3. Defendants 2 and 5 filed a joint written statement. Following were the material contentions raised by them. Suit was not maintainable. Plaintiffs had no right to file the suit as framed. They were also not entitled to get the relief sought for in the plaint. Suit was filed on an experimental basis without any bona fides. Even assuming that the plaintiffs were trustees, the suit as framed is not maintainable. Suit was barred by law and the same was liable to be dismissed on A.S. NOS. 549 & 557 OF 1991 -: 5 :- that ground. Plaintiffs who claim to be non-hereditary trustees were seeking recovery of the suit properties on the strength of their right. Non-hereditary trustee will not acquire any right over the Temple properties. Properties originally belonged to the Mongandampulath Akathoot Thinayancheri Illam. The Illam executed a settlement deed by which the suit properties were set apart for the Temple. The income from the said properties should be spent for managing the affairs of the Temple. But the properties were never given possession to Temple and properties were actually in the possession of Illam itself. Senior most male member of Illam was the Trustee and he was looking after the affairs of the Temple. He had absolute right over the said properties. At that time there was no legal bar for assigning properties and the Temple was not a public Temple. Temple became public only on 14.7.1971. At that time third defendant was the Hereditary Trustee. Defendants 2 and 5 were unaware of the fact of removal of the third defendant and the appointment of the first plaintiff in his place as the fit person. They were also not aware of the fact that the other A.S. NOS. 549 & 557 OF 1991 -: 6 :- plaintiffs were declared as trust members. They had no knowledge whether third defendant had handed over the documents, properties, etc., to the Board of Trustees. Allegation that certificate of purchase in O.A. No.447 of 1983 was obtained fraudulently and collusively was denied. It was obtained validly. The averment that first defendant executed a sale deed in favour of second defendant was also denied. Fifth defendant did not get any right under the sale deed. Fourth defendant was in possession of some portion of the properties. On 10.11.1138 ME (corresponding to 24.6.1963) an oral lease was executed by the then Karanavan and Devaswom Ooralan Raman Moossad of the Illam in favour of one Kanakkazhi Vellayikkot Gopalan Nair. The rent agreed was Rs.12.50 per year. Raman Moossad had every right to create lease and nobody was entitled to question the same. Gopalan Nair was in possession of the property as a lessee. He was in possession of other properties also under the lease deed. He assigned his leasehold right over a portion of the properties to the first defendant on 26.6.1970 for valid consideration. First defendant filed O.A. No.447 of 1973 for A.S. NOS. 549 & 557 OF 1991 -: 7 :- assignment of right, title and interest of the landlord in respect of the land and the same was allowed. First defendant became the absolute owner of the properties. Plaintiffs were fully aware that first defendant was absolute owner of suit properties. Original Application was allowed with due notice to all persons concerned. None of the plaintiffs entered appearance and filed objection to that application. So plaintiffs were estopped from disputing the validity of certificate of purchase. Thereafter first defendant let out a building situated in the property to 5th defendant in the year 1970 for a monthly rent of Rs.5/-. Fifth defendant and his family were residing in that building from that date onwards. On 3.8.1977, first defendant assigned his rights to second defendant for valid consideration. Thereafter she was in possession of the same as absolute owner. Raman Moossad entrusted three items of properties with Gopalan Nair. Gopalan Nair sold all the three items to first defendant. Plaintiffs did not challenge the oral lease or assignment of the lease in respect of other items. They are not entitled challenge the lease in respect of the suit properties alone. A.S. NOS. 549 & 557 OF 1991 -: 8 :- Second defendant sold a portion of the property to 4th defendant, 19¼ cents to 6th defendant, 10 cents to 7th defendant and 8 cents to 8th defendant. They were in possession of the respective plots and rest of the property was in the possession of second defendant as absolute owner. She had effected valuable improvements in the property and she had renovated the building spending more than Rs.10,000/-. She availed a loan from the Land Mortgage Bank, Kozhikode. Second defendant was unaware of the appeal filed by the plaintiffs against the order passed in O.A. No.447 of 1973. Properties were in the absolute possession of Gopalan Nair in 1963. Thereafter same was in the possession of first defendant who subsequently assigned the same in favour of second defendant. From the year 1963 onwards, second defendant and her vendors were in possession openly and without any objection from the members of the family. Even if the family had any right, the same was lost by adverse possession and limitation. If the certificate of purchase obtained was not valid then she became the lessee of the properties and plaintiffs are not entitled to evict her. She was A.S. NOS. 549 & 557 OF 1991 -: 9 :- a cultivating tenant entitled to fixity of tenure. If at all plaintiffs have any right, they have to approach the Land Tribunal for eviction of the tenant and they are not entitled to file a suit before a civil court for recovery of the same. Civil court has no jurisdiction to decide such an issue. So the matter should be referred to the Land Tribunal for considering the question of tenancy. The averment in the plaint that defendants tried to alienate properties to strangers was denied. The allegation that they committed waste in the properties was also denied. Plaintiffs had no right over the suit properties and they are not entitled to maintain an action. The court fee paid was insufficient. Valuation of the properties for the purpose of payment of court fee was not proper. The suit properties will fetch more than Rs.3 lakhs. Plaintiffs should be directed to take out a commission for valuing the property and they should also be directed to pay the court fee on the basis of such valuation. Plaintiffs were not entitled to get any reliefs sought for in the plaint. Initially the suit was filed before the Munsiff's court, Parappanangadi. Plaint was returned by the Munsiff finding that it had no A.S. NOS. 549 & 557 OF 1991 -: 10 :- jurisdiction to entertain the suit. Plaintiffs were directed to re-present the plaint within a particular time limit before the Sub Court, Tirur. But the plaint was not re-presented within the time granted by the Munsiff. Hence the suit was barred. Defendants 2 and 5 claimed that they were entitled to get the value of improvements effected by them. 4. Fourth defendant filed a separate written statement supporting the case of defendants 2 and 5. The right claimed by the plaintiffs was denied. It was contended that one acre of property lying on the western side of the suit properties were in her possession. She purchased the same on 18.8.1980 for a consideration of Rs.20,000/- from second defendant. She had effected valuable improvements in the said property. Second defendant was fully competent to alienate the properties. After purchasing the property she availed a loan from the Pulickal Zadu Unit and effected improvements. She had planted coconut saplings and other yielding trees in the properties. A pump set was also installed. There was no cause of action for filing the suit. Court fee paid on the plaint was insufficient. The plaint filed A.S. NOS. 549 & 557 OF 1991 -: 11 :- before the Munsiff's court, Parappanangadi by the plaintiffs was returned for re-presentation before a proper court. Plaintiffs did not re-present the plaint within the time fixed by the court and hence the suit was barred. She claimed the value of improvements effected by her. 5. Defendants 6 and 7 filed a joint written statement supporting the claim of defendants 2 and 5. Sixth defendant claimed title over 19¼ cents of land and 7th defendant claimed title over 10 cents of land. They purchased the property on 12.11.1980 and 12.1.1981 respectively. It was contended that they were entitled to get all legal benefits. They had effected valuable improvements. Assignment in their favour was valid and legal. Since plaint was not re- presented within the time allowed, the suit was barred. They were entitled to get value of improvements. 6. Trial court found that defendants were not entitled to claim fixity of tenure. It found that the plaintiffs were entitled to recovery of suit properties on the strength of title from the defendants on behalf of Karumankavu Temple. It was also found that defendants 2 and 4 to 8 were in possession A.S. NOS. 549 & 557 OF 1991 -: 12 :- of properties for a long time and they had effected improvements. It was held that they were entitled to get the value of improvements. Challenging that part of the decree by which the plaintiffs were allowed to recover the suit properties, defendants have filed A.S. No.557 of 1991. Aggrieved by that part of the decree by which the court below allowed defendants 2 and 4 to 8 to recover value of improvements and value of the building constructed, plaintiffs have filed A.S. No.549 of 1991. Since both the appeals arise from the same decree and judgment, these appeals were consolidated and are disposed of by this common judgment. The parties will be referred to as arrayed in the court below for the sake of convenience. 7. Learned counsel appearing for the plaintiffs argued that the trial court granted recovery of the properties as it found that the defendants are rank trespassers. It is argued that possession of trespasser, however long it be, will not cloth him a right to claim value of improvements. Learned counsel appearing for defendants 2 and 5, who are the appellants in A.S.No.557 of 1991, has raised the following A.S. NOS. 549 & 557 OF 1991 -: 13 :- arguments: Even if the court finds that the certificate of purchase issued in O.A.No.447 of 1973 was not valid, tenancy right of the second defendant will revive and she is a cultivating tenant entitled to fixity of tenure. The suit as framed was not maintainable. Plaintiffs ought to have filed the suit under Section 92 of the Code of Civil Procedure. The suit was bared under Sections 35, 87 and 93 of the HR &CE Act. The suit was originally filed before the Munsiff's court, Parappanangadi. The plaint was returned for re-presentation before the Sub Court, Tirur finding that Munsiff's court had no jurisdiction to try the suit. But suit was not re-presented within the time granted by the Munsiff's court and as such the suit was barred. Plaintiffs admitted that properties belonged to Deity and a Trust was created for looking after the affairs of the Temple and managing the properties. No Manager was elected and the members of the Trust Board as such have no right to maintain an action for recovery. There is an unequivocal admission by the plaintiffs that suit properties belonged to Deity, but Deity was not impleaded as a plaintiff. Plaintiffs sought relief of recovery on the strength of their A.S. NOS. 549 & 557 OF 1991 -: 14 :- title and not on the ground that Deity was the owner of the property. If properties are delivered to plaintiffs they will mismanage the same. The very same plaintiffs had filed suits against others alleging that they had trespassed upon properties belonging to the Temple. Subsequently, they colluded with those persons and compromised the suits. 8. I shall first deal with the appeal filed by the defendants. Plaintiffs are members of the Trust Board of Karumankavu Temple appointed by the Deputy Commissioner, H.R. & C.E., Kozhikode as per his order dated 3.11.1976. Evidence adduced in this case shows that suit properties originally belonged to Mongandampulath Akathoot Thinayancheri Illam, a Namboodiri Family. Senior most male member of the family was the Karanavan. The suit properties were set apart for the Karumankavu Temple by the family in the year 1957 under Exhibit A1 document. Exhibit A1 provides that the senior most male member of the family should manage the properties. He had no right to alienate the properties. He was given power to take income from the properties and manage the affairs of the Temple. According A.S. NOS. 549 & 557 OF 1991 -: 15 :- to the defendants the senior most male member had every right to alienate the properties because at that time it was a private Temple. The Temple was declared as public Temple with effect from 14.7.1971 and third defendant was appointed as the Hereditary Trustee. Exhibit A3 is the order dated 14.7.1971 passed by the Deputy Commissioner, H.R. & C.E., Kozhikode, declaring the Temple as a public Temple. The Deputy Commissioner as per Exhibit A5 order dated 14.2.1972 removed the third respondent from the post of Hereditary Trustee and appointed the first plaintiff as the fit person. The third defendant was directed to hand over charge of the Temple, documents, properties, etc., to the first plaintiff. The Assistant Commissioner, H.R. & C.E., by order dated 3.11.1976 appointed the plaintiffs as members of the Trust with effect from 3.11.1976. They were directed to elect a Chairman, as per Exhibit A14. Exhibit A16 is the Scheme framed by the Deputy Commissioner, H.R. & C.E. (Admn), Kozhikode. Clause No.3 of the Scheme provides that within three months from the date of framing of the Scheme the members should elect one among them as the Chairman. A.S. NOS. 549 & 557 OF 1991 -: 16 :- Clause 4 of the Scheme provides that the Managing Trustee shall appoint a Manager. That clause was subsequently deleted and Chairman of the trust board was directed to perform the office of the Manager as could be seen from Exhibit A17. In this case plaintiffs did not elect one among them as Chairman. The mere fact that the plaintiffs did not elect one among them as Managing Trustee or Chairman is not a ground to dismiss the suit. All the members of the Committee had joined as plaintiffs and filed the suit. So there is no merit in the contention that since the Chairman/Managing Trustee has not joined as a plaintiff, the suit is not maintainable. 9. Learned counsel for the defendants has strenuously argued before me that plaintiffs had admitted that the properties belonged to a public Trust and as such the suit ought to have been filed as contemplated under Section 92 CPC. It is argued that plaintiffs had admitted that suit properties were in the possession of the third defendant, who was the Hereditary Trustee. 10. Section 92(1) CPC provides that a suit can be A.S. NOS. 549 & 557 OF 1991 -: 17 :- instituted for directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property either by the Advocate General or by two or more persons having an interest in the trust only after obtaining leave from the court. Going by the pleadings and reliefs sought for in the pliant, this is a case instituted by the trust for recovery of the trust properties from the possession of trespassers. It is to be noted that the case put forward by the defendants was that one Gopalan Nair was put in possession of the suit properties under a lease in the year 1963, long prior to the declaration of the Temple as public Temple. He assigned the same in favour of the first defendant, who in turn assigned the same to second defendant. The first defendant filed O.A. No.447 of 1973 before the Kondotty Land Tribunal and the Land Tribunal found that he was a cultivating tenant entitled to fixity of tenure. A certificate of purchase was issued. First defendant, claiming to be the absolute owner, sold the properties to the second defendant. Second defendant sold A.S. NOS. 549 & 557 OF 1991 -: 18 :- one acre to the 4th defendant, 19¼ cents to the 6th defendant, 10 cents to the 7th defendant and 8 cents to the 8th defendant. Defendants 1, 2, 4 and 6 to 8 did not claim any right under the third defendant, who was the removed Hereditary Trustee. On the other hand, they set up independent title. So this is not a case in which recovery is to be effected from a removed trustee or persons claiming under him. It is true that the second defendant is the daughter of the third defendant and the 5th respondent is her husband. But, that will not make the suit one under Section 92 CPC. So there is no merit in the contention raised by the defendants that the suit ought to have been filed under Section 92 CPC. 11. The next contention raised is that the suit is barred under Section 87 of the HR&CE Act. It is argued that plaintiffs seek recovery of properties from the third defendant who was also a trustee. It is argued