IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 SA.No. 881 of 1998(E) ------------------------------ AS.93/1994 of PRL.SUB COURT,KOTTAYAM OS.426/1992 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT(S): RESPONDENTS/ DEFENDANTS --------------------------------------------------------------------- 1. K.B.WARRIER, RESIDING AT SREE BHAVAN, VAZHEPPALLY EAST MURI. 2. K.P.UNNIKRISHNAN, RESIDING AT EZHUTHUPANICKERU VEETIL. 3. P.R.JANARDHANAN NAIR, RESIDING AT MATTAPPALLY VEETIL. BY SRI.GOVIND K.BHARATHAN, SENIOR ADVOCATE BY ADVS. SMT.L.P.ANITHA SMT.S.USHA SAI RESPONDENT(S): APPELLANT/ PLAINTIFF -------------------------------------------------------------- THE TRAVANCORE DEVASWOM BOARD, REP.BY THE BOARD SECRETARY B.RAMACHANDRAN NAIR, TRAVANCORE DEVASWOM BOARD OFFICE, NANTHANCODE, THIRUVANANTHAPURAM. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.U.K.RAMAKRISHNAN, SENIOR ADVOCATE BY ADVS. SRI.E.K.MADHAVAN SRI.P.V.LOHITHAKSHAN SMT.P.VIJAYAMMA SRI.V.KRISHNA MENON SRI.P.J.ANILKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------- S.A No.881 of 1998 -------------------------- Dated this the 20th August, 2010 J U D G M E N T Defendants in O.S No.426/ 1992 the Munsiff's Court Changanassery are the appellants herein. The parties and facts hereinafter referred to as are available before the trial court. 2. The suit was one for permanent prohibitory injunction and mandatory injunction filed by the Travancore Devaswom Board. According to the plaintiffs, plaint schedule property consists of pond and its precincts and it is used for temple purposes. Defendants are residing near the plaint schedule property. They are said to have put up unauthorised 'kanikkamandapam' in the property. According to the plaintiff, the defendants had no manner of right of over the plaint schedule property. Claiming that they have absolute possession and enjoyment over the property, plaintiff sued for prohibitory and mandatory inunction. 3. Defendants resisted the suit. They pointed out that allegation they have made of unauthorised S.A No.881 of 1998 2 construction of kanikkamandapam is incorrect. According to the defendants, they are members of the Temple Renovation Committee and they had put up a kanikka mandapam in the property belonging to Warrier. The Temple Renovation Committee came into existence on 29.3.1992 and the President of the plaintiff Devaswom Sri. N. Bhaskaran Nair was one of the patrons of the committee . Kanikkamandapam was erected on the basis of donations from the public. The northern boundary of the property lies on the southern side of the plaint Item No.1 covered by sale deed No.l1325/77. This shows that the Deveswom may not have any right over the suit property. It is also pointed out that none of the defendants have done any act in their individual capacity and it was the committee which had erected kanikkamandapam on the basis of donations from the public. Hence they prayed for dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and PW2 and Exts. A1 to A(b) were marked from the side of the plaintiff. Defendants had examined DW1 and S.A No.881 of 1998 3 DW2 and Exts. B1 to B6 were marked. 5. The trial court on evaluation of the evidence in the case came to the conclusion that plaintiff Devaswom was unsuccessful in proving exclusive possession of the property and therefore relief of prohibitory injunction was declined. 6. Pointing out that the plaintiff had no authority to interfere with the structure, the suit was dismissed. 7. Plaintiff carried the matter in appeal as A.S No.93/94 before the Sub Court, Kottayam. The lower appellate court accepted the entry in Ext.A1 and found that Devaswom is in possession of the suit property. It declined to grant mandatory injunction holding that there is nothing to prove kanikkaandapam in any way caused inconvenience to the temple, but the lower appellate court has granted prohibitory injunction against the defendants. The said portion of the decree and judgment are assailed in this appeal. 7. The following questions of law have been formulated in this appeal. S.A No.881 of 1998 4 1) Whether the appellate court was justified in setting aside the judgment of the Trial Court which after elaborate discussion had come to the finding that the plaintiff had not succeeded in proving any right or title over the plaint schedule property and that in order to sue for mandatory injunction the plaintiff had failed to establish any act of trespass on the part of the appellants herein with breach of obligation. 2) Whether Ext.A1 was admissible in evidence in the light of the patent error committed by the Appellate Court in finding that Ext.A1 was admitted in evidence through PW1 with the consent of the defendants when PW1 was in the witness box which consent was clearly denied by the appellants herein. 3. Whether the patent error committed by the Appellate Court as regards the admissibility of Ext.A1 renders the entire finding based on this document unsustainable. 4. Whether the Appellate Court was justified in setting aside the finding of the learned Munsiff that the plaintiff had not established any right title or interest over the plaint schedule property in accordance with the provisions of Section 27 of the Travancore Cochin Hindu Religious Institutions Act. 5. Whether the apparent fallacy in the judgment of the Appellate Court, wherein it is held that the evidence adduced in thecase did not justify holding that the Kanikkamandapam was constructed in the property exclusively belonging to the plaintiff; while at the same time finding that the Trial Court had rightly held that the plaintiff was not entitled to a decree of mandatory injunction to demolish the kanikkamandapam renders the judgment of the S.A No.881 of 1998 5 Appellate Court perverse and liable to be set aside. 6. Whether the Appellate Court's findings on issue No.l is supportable on the facts and circumstances of the case. 7. Whether the Appellate Court was justified in totally ignoring the contention raised by the appellants that what constitutes Devaswom properties are clearly described under Section 27 of the Act, and any property which does not fall under the ambit of this definition will not constitute Devaswom property, as such properties should be entered or classed in the Revenue records as Devaswom vaka or Devaswom Puramboke and such other Pandaravaka lands as are in the possession and enjoyment of the Devaswom and entered in schedule 1 of the Act after 12.4.1922. 8. Learned counsel appearing for the appellants pointed out that the lower appellate court was not justified in setting aside the judgment of the trial court and granting a decree of prohibitory injunction. 9. It is contended that the Devaswom Board has not produced statutory registers contemplated under the Act. No reliance could have been placed to Ext.A1. The Temple Renovation Committee has stated that kanikkamandapam was put up with the full knowledge and consent of the Devaswom Authorities. It is not a trespass. Moreover, it is S.A No.881 of 1998 6 also pointed out that there is no evidence to show that the Devaswom owns the property in which kanikkamandapam is situated. 10. The lower appellate court has found that kanikkamandapam could not be pulled down because it will not cause any inconvenience to the temple and the Devaswom board. If that be so, the members of the committee cannot be prohibited from entering the property. 11. The trial court has found that Ext.A1 by itself is insufficient to come to the conclusion that the property which the Kanikkamandapam is located exclusively belongs to the plaintiff. It cannot be disputed that Ext.A1 is the register as contemplated under the Act. It is significant to note that defendants had pointed out that Chairman, Sri.Vasudevan Nair was one of the patrons of the committee. It is therefore clear that Devaswom Board was fully aware of the formation of the Temple Renovation Committee and they cannot be characterised as strangers. It is also pointed out that Devaswom Board was aware of S.A No.881 of 1998 7 the fact that the Temple Renovation Committee had put up structure and was holding the property. 12. Under such circumstances, the suit against the defendants in the personal capacity is not maintainable. 13. Moreover, the lower appellate court has found that mandatory injunction cannot be granted. If that be so, the members of the committee cannot be prevented from entering the property. If the Devaswom Board is able to establishes title and possession of plaint schedule property, they are free to take action under the Land Conservancy Act or as provided under any other statute. Devaswom Board is at liberty to do so. Appeal is allowed to that extent. The judgment of the lower appellate court is set aside and the decree of the trial court is restored subject to the above observations. There will be no order as to costs. P.BHAVADASAN, JUDGE ma S.A No.881 of 1998 8