IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 SA.No. 88 of 1998(B) -------------------- AS.142/1995 of ADDL.SUB COURT, THALASSERY OS.42/1994 of MUNSIFF COURT, THALASSERY .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------ 1. VALIYA PURAYIL MADHVAN, S/O.PYDAL, (DIED) RESIDING AT DHARMADAM AMSOM AND DESOM, P.O. DHARMADAM, THALASSERY TALUK. 2. VALIYA PURAYIL NARAYANI, W/O.DAMU, (DIED) RESIDING AT THALAYI, THALASSERY TALUK. ADDL. 3. P. MOHANAN, S/O.DAMU, RESIDING AT PARAMMAL HOUSE, FISHERMEN COLONY, THALAI, P.O. TEMPLE GATE, THALASSERY-2. '' 4. P. MANOHARAN, S/O. DAMU, RESIDING AT -DO- -DO- '' 5. VISALAKSHI, W/O. VALIYATHURAYIL MADHAVAN, RESIDING AT HARIMANDIRAM, SWAMIKUNNU, P.O. DHARMADAM, THALASSERY. '' 6. V.P. HARIDASAN, S/O. LATE -DO-, RESIDING AT -DO- -DO- '' 7. V.P. RADHA, D/O. LATE -DO- RESIDING AT -DO- -DO- '' 8. V.P. AMBIKA, D/O. LATE -DO- RESIDNG AT -DO- -DO- '' 9. V.P. REMADEVI, D/O. LATE -DO- RESIDING AT -DO- -DO- (ADDL. APPELLANTS 3 AND 4 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 2ND APPELLANT AS PER ORDER DTD. 9/10/07 IN CMP.1446/99) (ADDL. APPELLANTS 5 TO 9 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECASED IST APPELLANT AS PER ORDER DTD. 9/10/07 IN I.A. 1622/2004) BY ADV. SRI.P.R.VENKETESH RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------------- 1. DHARMADOM PAREEKKADAVATH ARAYODHARANA SANGAM, THROUGH ITS PRESIDENT PAREEKKADAVU DHARMADOM, THALASSERY TALUK. 2. DHARMADOM PAREEKKADAVATH ARAYODHARANA SANGAM, THROUGH ITS SECRETARY, PAREEKKADAVU DHARMADOM, THALASSERY TALUK. S.A.NO.88/1998 -2- 3. P.K. NARAYANAN, S/O. GOVINDAN, (DIED) RESIDING AT DHARMADOM AMSOM DESOM, P.O. DHARMADOM, THALASSERY TALUK. ADDL. 4. SATHYAVATHI, DHARMADOM AMSOM DESOM, P.O. -DHARMADOM, THALASSERY. '' 5. VINODINI, -DO- -DO- '' 6. GEETHA, -DO- -DO- '' 7. PRAMODINI, -DO- -DO- '' 8. PRASANTH, -DO- -DO- '' 9. SRINATH, -DO- -DO- (ADDL. RESPONDENTS 4 TO 9 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 3RD RESPONDENT AS PER ORDER DTD. 9/10/2007 IN CMP. 502/2000) ADV. SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE SRI.S.ANANTHAKRISHNAN FOR R1 to R3 SRI.N.C.JOSEPH SRI.N.K.SUBRAMANIAN FOR R4, R6, R7 & R9 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------- S.A. NO. 88 OF 1998 ------------------------------- DATED THIS THE 6TH DAY OF DECEMBER, 2010 JUDGMENT The substantial questions of law formulated in the appeal are as follows: “i) Will a decision or a finding entered in a suit by a member of the Tarwad in his individual capacity constitutes resjudicata in respect of the same issue in a later suit instituted by another member of the tarwad in a representative capacity? ii) When a suit is for recovery of possession of trust properties from persons who have assumed the management by the members of the tarwad who are the trustees will not Section 10 of the Limitation Act be applicable? iii) What is the period of limitation of a suit by the trustees for following the trust property in the hands of strangers? iv) When documents relating to title to the property and evidence are let in is not the court bound to consider the evidence and come to a finding regarding the title to the property? v) When both sides claim right to the property is not the court bound to consider the -2- S.A.No.88/1998 probabilities of the case and enter a finding on the basis of the evidence ad probabilities of the case?” 2. Plaintiffs in O.S.No.42/1994 on the file of the Munsiff's Court, Thalassery are the appellants. Pending appeal the appellants and the 3rd respondent died and their legal representatives are impleaded as additional appellants and additional respondents respectively. The appeal is directed against the judgment and decree in A.S.No.142/1995 on the file of the Sub Court, Thalassery. The suit was for declaration of title and recovery of possession. The trial court dismissed the suit by judgment and decree dated 31/8/1995. The Lower Appellate Court confirmed the decree of the trial court. The parties are hereinafter referred to as the plaintiffs and defendants as arrayed in the suit. 2. The plaint schedule item No.1 consists of 19 cents of land with a temple and allied structures. Plaint item No.2 is 2.3 cents of land comprised in R.S.No.62/7 with kazhakapura etc. The plaintiffs are the members of the Valyapurayil tarwad and they -3- S.A.No.88/1998 belong to the Araya Community and are Marumakkathayees. The plaintiffs' case is that item No.1 and 2 along with other items originally belong to the tarwad of the plaintiffs. The plaint schedule properties are in possession and enjoyment of the tarwad from time immemorial and that the temple therein was constructed long years ago. It is alleged that the temple is the family temple of Valiyapurayil tarwad and it belongs exclusively to the members of the tarwad. Since the members of the tarwad are numerous, an application under Order 1 Rule 8 C.P.C. was filed seeking permission to file the suit on behalf of all the members of the tarwad and that too in a representative capacity. 3. The lst defendant in the suit is Dharmadam Pareekkadavath Arayodharana Sangham represented by the President and the 2nd defendant is the Secretary of the said sangham. The sangham is an association formed by the Arayas of the locality for the upliftment of their community. The defendants 1 and 2 filed a joint written statement contending interalia as -4- S.A.No.88/1998 follows: The plaintiffs have no right over the temple, site and the structures in the paint schedule property and was concluded by the decisions of the civil court, that the previous karanavan of the plaintiffs' tarwad one Valiyapurayil Nandanan filed O.S.No.110/83 before the civil court, that the suit was dismissed, that the decision is binding on the present plaintiffs and all the members of the tarwad and that the suit is barred by resjudicata by reason of judgment and decree in O.S.No.110/83 of the Munsiff's Court Thalassery and the judgment and decree in A.S.No.278/86 before the Additional District Court, Thalassery. It is also contended that since the very same points were considered in O.S.No.110/83, the point already decided cannot be allowed to be re-agitated because of the application of principles of res judicata and estoppel by judgment. 4. It is further contended by the defendants that the plaint schedule property belongs to the entire members of the Araya community and it is owned and possessed and managed by the -5- S.A.No.88/1998 defendant-sangham for and on behalf of the members of the community and that the sangham was formed as early as in 1945 and one of the main purpose is to administer and manage the temple for and on behalf of the community. It is averred in the written statement that the present lst plaintiff was the president of the sangham elected from among the members of the tarwad. The defendants also denied the averment that the defendant sangham got possession of the temple and property after the dismissal of O.S. No.110/83. 5. The evidence consists of the oral evidence of DWs.1 and 2, Ext.A1 to A24 and B1 to B17. The suit was for a declaration that the plaint items 1 and 2 belong to the members of the erstwhile tarwad of the plaintiff and for recovery of the same by the defendants on the strength of title. According to the plaintiffs, the plaint items along with other extent originally belonged to the plaintiff's tarwad, that the Bhagavathi Temple situated in the plaint schedule property (item No.1) is a private Temple and that the -6- S.A.No.88/1998 defendant-sangham have no right over the Temple. 6. The then senior most male member of the tarwad, namely, Valiyapurayil Nandanan, who was the karanavan of the tarwad, filed O.S.No.110/83 against the defendants sangham for the very same relief mentioned above. The said suit was dismissed by the trial court. Ext.B7 is the judgment dated 13/6/1986 in the said suit. The plaintiff is Valiyapurayil Nandanan, the karanavan of the erstwhile tarwad. The defendants in the suit are the same defendants in the present suit. The court below held that the plaintiff's tarwad has no title or possession over the plaint schedule property, that the plaint schedule Temple is in the administration and control of the defendant-sangham and that the Temple is used as a public Temple where the public has right to worship. The court therefore held that the plaintiff is not entitled to a decree of declaration and injunction as prayed for in the said suit. The plaintiff in that suit preferred A.S.No.278/96. Ext.B9 is the judgment in the said appeal. The Lower Appellate Court confirmed -7- S.A.No.88/1998 the decree and judgment of the trial court and dismissed the appeal. The plaintiffs preferred S.A.No.673/88 against the dismissal of A.S.No.278/86. The karanavan of the tarwad, Nandanan died during the pendency of the second appeal on 18/3/1992. The present plaintiff, who is the next senior most male member of the tarwad, filed a petition to implead him as additional second appellant in the second appeal. Paragraph 2 of the affidavit filed in support of the petition for impleading is extracted below: “The sole appellant died on 8/3/1992. The petitioner was adorned the seat of the karanavan after conducting the purification ceremony and other rituals by the Thanthri according to the prevailing custom only on 17/1/1993 and I was entitled to get impleaded in the appeal as karanavan of the tarwad only from that date. There was no authorised karanavan for the tarwad to get impleaded in the appeal till that date as legal representative of the deceased appellant” 7. It is averred that he was adorned the seat of the karanavan, according to the prevailing custom and that there was no authorised karanavan for the tarwad to get impleaded in the appeal -8- S.A.No.88/1998 till that date as a legal representative of the deceased appellant. Though the joint family system was abolished in the year 1976, the plaintiff tarwad continued the same system. That is the reason why the senior most male member sought to be impleaded in the appeal. The person sought to be impleaded is none other than the plaintiff in the present suit. The petition for impleading was filed belatedly. Therefore, another petition to condone the delay of 256 days in filing the impleading petition was also filed. This Court found that there is no satisfactory explanation for the delay and therefore dismissed the delay petition. Consequently, this Court dismissed the second appeal as abated by judgment dated 18/10/1993. 8. The reliefs sought for in the suit and the subject matter of the suit are same in the earlier suit. The Plaintiff in the earlier suit was the then karanavan of the tarwad. The lst plaintiff in the present suit is the present karanavan. The plaintiff in the earlier suit died during the pendency of the second appeal. The present plaintiff filed a petition stating that he is the present -9- S.A.No.88/1998 karanavan and he sought to implead himself as additional appellant. In both suits the lst defendant is the Dharmadam Pareekkadavath Arayodharana Sangham. On that basis the trial court observed that the matter to be considered in the present suit was already discussed and considered elaborately in the earlier suit, O.S.110/1983. It is also noted that all the documents produced by the defendants in this case are same, which are already produced before the court below in the earlier suit. After considering the very same materials elaborately, the court below in O.S.No.110/83 came to a finding that the Temple and kazhakapura do not belong to the tarwad of the plaintiff, that the Temple is a public Temple and that the then plaintiff is not entitled to the relief sought for. The trial court also considered the contentions of the plaintiffs that the prior suit was filed by the plaintiff in his personal capacity and not as a karanavan. On a perusal of Exts.B7, B9 and B10 judgments of the courts below and this Court, it is evidently clear that the plaintiff instituted the suit in his capacity as the karanavan of the tarwad. -10- S.A.No.88/1998 On the death of the appellant, the plaintiff in the present suit filed C.M.P.No.390/93 for getting himself impleaded as additional appellant. In the affidavit it is stated that the sole appellant is dead and that he was adorned the seat of the karanavan, after conducting purification ceremony and other rituals by the Thanthri, according to the prevailing custom on 17/1/1993 and I was entitled to get impleaded in the appeal as karanavan of the tarwad only on that day. Therefore, it is very clear that the plaintiff in the earlier suit and the plaintiffs in the present suit sued in their capacity as the karanavans of the tarwad, though there is statutory abolition of Joint Hindu Family system from 1976. It is clear from the pleadings that the system of tarwad continued to exist in the plaintiffs' tarwad. The earlier suit and the present suit are filed for a declaration that plaint schedule items 1 and 2 belong to the members of the tarwad of the plaintiff and for recovery of the same from the defendants on the strength of title of the plaintiffs' tarwad. The trial court repelled all the contentions raised by the plaintiffs -11- S.A.No.88/1998 and held that the present suit is barred by res judicata and barred by limitation. 9. The plaintiff challenged the decree and judgment in A.S.No.142/1995. The Lower Appellate Court also noted the fact that the plaintiffs did not adduce any oral evidence; but produced Exts.A1to A14 documents. On the side of the defendants DWs. 1 and 2 were examined and Exts.B1 to B13 were marked. The Lower Appellate Court re-appreciated the evidence. 10. The learned counsel for the appellants contended that the mere fact that public also have been permitted to have worship in the temple, that will not make it a public temple, that the public have not made use of the temple as a place of worship as of right and further submitted that in the absence of plea and proof of dedication, the courts below should have found that the defendants have miserably failed to establish any title over the suit properties, temple and kazhakapura. The learned counsel also relied on the decisions reported in The Municipality of Taloda v. -12- S.A.No.88/1998 The Charity Commissioner, Bombay and others (AIR 1968 SC 418) and Soman v. Appukutty (1987 KHC 738) and contended that the principles of resjudicata is not applicable to the case on hand. According to him, the earlier suit was filed by Nandanan in his individual capacity, that at that time the Joint Family System Abolition Act has come into force, that therefore Nandanan was not competent to maintain a suit on behalf of the tarwad, that after Act 30 of 1996 the members of the tarwad become tenants in common and that therefore no member of the tarwad even if he happens to be the eldest among the members will be competent to maintain a suit on behalf of a dis-integrated tarwad or on behalf of the other co-owner/members of the tarwad. The learned counsel also pointed out that Ext.B7 suit was not filed seeking to represent the other co- owners in a manner legally recognised. The contentions raised by the appellants were considered and answered by the courts below. 11. The learned counsel for the respondents brought to the notice of this Court the decisions reported in Singhai Lal -13- S.A.No.88/1998 Chand Jain v. Rashtriya Swayam Sewak Sangh, Panna and others (AIR 1996 SC 1211). The question examined by the Apex Court in that case is whether the decree passed by the High Court was a nullity, since the permission under Order 1 Rule 8 was not obtained. The Apex Court on going through the records, held that it could not be said to be a collusive suit nor a shadow of negligence was traceable so as to treat the decree a nullity and that it is true that no permission of the court was taken to be sued in a representative capacity by or on behalf of the Sangh. But Clause 1 (b) of order 1, Rule 8 indicates that it may sue or be sued, or may defend such suit, on behalf of, or for the benefit of all persons so interested. The Apex Court further held that the Sangh having been duly represented in the suit and the President, Manager and Member had conducted the litigation on behalf of the Sangh bona fide, the decree of ejectment binds every member of the Sangh, and that no one on behalf of the Sangh could lay any objection in the execution nor plead nullity of the decree. The learned counsel -14- S.A.No.88/1998 relied on the decision reported in Velayudhan Pillai v. Krishnan Asan (1988 (2) KLT 472). That was a case in which some of the legal heirs of deceased mortgagor filed the first suit for redemption of mortgage. Subsequent suit was filed by one of the legal heirs, who was not a party to the earlier suit. The Division Bench of this Court considered the question as to whether the second suit was barred on the principle of resjudicata. This Court held that Explanation VI if attracted, if it is shown that the plaintiff was bona fide litigating for a right common to himself and others, therefore, the other members will be precluded from setting up a claim for redemption of a transaction found to be a lease and not a mortgage. The learned counsel also cited the decisions reported in Rahimunnissa Beegam and others v. Srinivasa Ayyangar (AIR 1920 Madras 580) and Raju v. Ram Chand and others (AIR 1933 Lahore 752) in order to show that an order of abatement operates as a judgment in favour of the defendant and the only course open to a legal representative of the deceased plaintiff to -15- S.A.No.88/1998 escape the effect of the abatement is by review of the judgment. If he does not succeed in vacating the judgment and so long as the defendant continues in possession, the order of abatement is conclusive of the defendant's rights to the property. 12. The main contention raised by the learned counsel for the appellant is that the Lower Appellate Court has not decided issue Nos.3 and 4. It is true that the trial court decided only issue Nos.1 and 2. The trial court held that in the light of the contentions raised and the findings in issue Nos. 1and 2, the other issues were not considered. The Lower Appellate Court considered all the issues arising for consideration. The Appellate Court observed that there is no legal impediment to consider issue Nos.3 and 4. The question of resjudicata and limitation is a matter already decided by the court. The same issues are agitated in appeal. For the reasons stated in the preceding paragraphs, the Lower Appellate Court also confirmed the finding of the trial court that the suit is barred by resjudicata and is barred by limitation. The contentions raised by -16- S.A.No.88/1998 the appellant on issue Nos.3 and 4 are also dealt with by the Appellate Court. Issue Nos.3 and 4 in the suit is whether the plaintiffs are entitled to a decree of declaration as prayed for and whether the plaintiffs are entitled to a decree for recovery as prayed for. These issues were also considered. The court held that the earlier decision in O.S.No.110/83 is binding on the members of the tarwad and that being so, the present plaintiffs are bound by the decision in O.S.No.110/83. 13. The question whether the plaintiffs are entitled to any relief in the suit was elaborately discussed and considered by the trial court as well as the Lower Appellate Court. The findings are based on the question of rejudicata and limitation. This Court finds that the appellants are not able to challenge the reasonings and findings of the courts below. No valid grounds are made out by the appellants in this appeal. No questions of law much less any substantial questions of law arise for consideration in the appeal. In the result, the appeal fails and accordingly dismissed. -17- S.A.No.88/1998 No order as to costs. HARUN-UL-RASHID, Judge. kcv.