IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 AS.No. 334 of 1998(C) ------------------------------- OS.267/1994 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S): NON-PARTY ------------------------ N.SANKARA MENON, ADMINISTRATOR, PAHZOOR PERUMTHRIKKOVIL, ADVOCATE, CHITTOOR ROAD, COCHIN 11. BY ADV. SRI.G.SREEKUMAR RESPONDENT(S): PLAINTIFFS & RESPONDENTS ------------------------- 1. PAZHOOR PERUMTHRIKKOVIL KSHETHRA BHARANA SAMITHI, REP.BY ITS TREASURER, T.A.BHASKARAN, CHIRAMULAYIL, KAKKADU KARA, PIRAVOM. 2. MANAGER OF DO. SANKARN NAMBOODIRIPPAD, SON OF GODAVARMAN NAMPOOTHIRIPPAD PADUTHOL ILLOM, PAZHOOR KARA, PIRAVOM VILLAGE. 3. URAYMA DEVASWOM BOARD, VADUTHALA, ERNAKULAM REP.BY ITS PRESIDENT. 4. THE SECRETARY, URAYMA DEVASWOM BOARD, VADUTHALA, ERNAKULAM. 5. K.R.NARAYANAN NAMBOODIRI , KANJIRAPPILLY MANA, KAKKOOR, THIRUMARADY. 6. K.N.GOPI @ GOPALAN VALAKKATTIL, OLIYAPURAM KARA, THIRUMARADY VILLAGE. 7. CHELLAMMA W/O. K.N. GOPI, VALAKKATTIL OLIYAPURAM KARA, THIRUMARADY VILLAGE. R1 BY ADVS. SRI.P.KESAVAN NAIR R3 & R4 BY SRI.V.GOPAKUMAR, SRI.M.P.RAMANATH. R6 & R7 BY SRI.K.K.CHANDRAN PILLAI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 334 OF 1998 = = = = = = = = = = = = = = = Dated this the 5th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Muvattupuzha in O.S.267/94. The suit is for a declaration and recovery of possession. It is the case of the plaintiff that Pazhoor Perumthrikkovil Temple is an ancient Temple of the State and it is owned by 14 families and those members of the 14 families under an agreement dated 22.1.66 has entrusted the administration of the Temple with the first defendant for a period of six years or until a new body is created for the administration of the Temple. Now it is the case of the plaintiff that nine such families being totally dissatisfied with the management conducted by A.S. 334 OF 1998 -2- the first defendant had cancelled the power of management in favour of D1 by virtue of Ext.A1 and therefore challenges the alienation made by the first defendant in favour of strangers and thus a suit for recovery of possession is filed on the strength of title. 2. On the other hand defendants 1 to 3 would contend that the management of the temple takes in the power to deal the with the property and it has not been cancelled by Ext.A1 and therefore the plaintiff has no locus standi at all to file the suit. It is stated that though the agreement Ext.A1 is alleged to be written in the month of September 1994 it is seen registered only on 14.11.94 and at that time one of the signatories to the document namely Jayananthan Namboodiri was not alive as he died on 9.11.94. It is also stated that though two A.S. 334 OF 1998 -3- of the persons representing two Illoms' were incompetent to represent the Iloms and therefore at the most only there were six illoms that had joined Ext.A1 and so the document Ext.A1 would not have any binding effect so as to cancel Ext.B3 which was entered into by the members of the family. The Court also on an appreciation of the materials came to the conclusion that Ext.A1 as such does not take away or invalidate Ext.B3 and therefore held that the plaintiff was not competent to institute a suit. It was also held by the Court that as per Ext.A1 the persons who has to institute the suit are the president and the treasurer whereas they have not joined as such in that capacity and therefore the suit is not maintainable on that ground also. It has to be stated that the suit is filed on the strength of Ext.A1. It is not filed in the A.S. 334 OF 1998 -4- capacity of a member of a family or beneficiary. According to the plaintiffs Ext.A1 confirms the right of the plaintiff to institute the suit. But in the light of the finding rendered by the learned Subordinate Judge that the majority of the families are not there in Ext.A1 and further when the members who had instituted the suit are not competent under Ext.A1 also to file the suit, the suit itself is not maintainable. When the suit itself is not maintainable, it is not proper on the part of the Court to enter into a finding regarding the transaction entered into between the parties. I make it very clear that I am not expressing anything on merits with respect to the transaction and it is a matter that has to be considered only in a properly constituted suit. Therefore the finding entered into by the Subordinate Judge in this case would A.S. 334 OF 1998 -5- not militate against the parties who are competent to file a proper suit. It is for the Court to consider the merits and demerits of both the sides and decide the issue in that case. Therefore this appeal is disposed of holding that the present plaintiffs on the strength of Ext.A1 are not entitled to institute the suit and therefore the suit cannot be entertained. Parties are at liberty to file a fresh litigation, in accordance with law, where all the matters can be considered by the Court when it is a properly framed suit. M.N. KRISHNAN, JUDGE. ul/- A.S. 334 OF 1998 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 334 OF 1998 = = = = = = = = = = = J U D G M E N T 5th July, 2010.