IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 CRP.No. 1100 of 2007() ---------------------- E.A.117/04 IN E.P.61/03 IN OS.432/1990 OF MUNSIFF COURT,ATTINGAL .................... REVN. PETITIONERS: PETITIONERS 2,3 & 4 ---------------------------------------- 1. KANIYAPURAM ASAN MARAKKAR APPPACHA THEKKATHU JANAKEEYA COMMITTEE, REP. BY ITS SECRETARY, THAHA, S/O MEERANKUTTY, MOOPPANVILAKATHU VEEDU, KADINAMKULAM MURI, KADINAMKULAM VILLAGE. 2. KANIYAPURAM ASAN MARAKKAR APPPACHA THEKKATHU JANAKEEYA COMMITTEE, REP. BY ITS TREASURER, SHAHUL HAMEED, S/O IBRAHIM KUNJU, MANAKKATTUVILAKATHU VEEDU, KADINAMKULAM VILLAGE. (RECORDED AS PRESIDENT OF THE JANAKEEYA COMMITTEE VIDE ORDER DATED 20-8-07 IN EA NO.58/2007) 3. SAINUDEEN, S/O ABDUL KHADER, AGED 58 YEARS, KAYALARIKATHU VEEDU, KADINAMKULAM VILLAGE.(IMPLEADED AS THE TREASURER OF THE KANIYAPURAM ASAN MARAKKAR APPACHA THEKKATHU JANAKEEYA COMMITTEE AS PER ORDER DATED 20-8-2007 IN E.A.57/07) BY ADV. SRI.SIBY MATHEW SRI.A.A.MOHAMMED NAZIR RESPONDENT(S): COUNTER PETITIONERS ---------------------------------- 1. ABDUL KHADER ASAN AHAMMEDU KUNJU, THEKKATHIL VEEDU, KADINAMKULAM DESOM, KADINAMKULAM VILLAGE. 2. KASIM PILLAI RASHEED, -DO- -DO- 3. MOHAMMED SALI ABDUL HAKKIM, -DO- -DO- 4. AYISHA BEEVI HOUWA UMMAL, -DO- -DO- 5. AYISHA BEEVI NABEESA BEEVI, -DO- -DO- -2- C.R.P.NO.1100/2007 6. MOHAMMED KUNJU NAZEER, -DO- -DO- 7. PATHUMMA BEEVI LYLA, -DO- -DO- 8. ABDUL RASHEED NIZAR, -DO- -DO- 9. AHAMMED KUNJU SUBAIRKUNJU, PATHUKANNI VEEDU, THEKKEVILA MURI, PALLIPURAM PAKUTHI. 10. AASHYA UMMAL AYSHA BEEVI, THEKKATHIL VEEDU, KADINAMKULAM MURI, KADINAMKULAM PAKUTHI. 11. KANIYAPURAM MUSLIM JAMA-ATH, REPRESENTED BY ITS PRESIDENT, KANIYAPURAM MUSLIM JAMA ATHA, KANIYAPURAM. 12. KANIYAPURAM MUSLIM JAMA-ATH SECRETARY, KANIYAPURAM, CHANNANKARA P.O. 13. SULTHAN PILLAI S.S. SHA, SULTHAN MANZIL, CHITTATTUMUKKU DESOM, MENAMKULAM MURI, MENAMKULAM VILLAGE. 14. KHALIDU ABDUL MAJEEDU, MALAMELPARAMBU, KADINAMKULAM MURI, KADINAMKULAM VILLAGE. 15. KATHIRUPILLAI ABDUL SALAM, KANJIRAM MOOTU VEEDU, MENAMKULAM MURI, MENAMKULAM VILLAGE. 16. MOHAMMED KANNU POOKUNJU CALLED M.P.KUNJU NAVAS MANZILIL, KADINAMKULAM MURI, KADINAMKULAM VILLAGE. 17. ISMAYIL PILLAI SAIFUDEEN, VALIYAKADA BUNGLOW, KANIYAPURAM 4DESOM, VALIYAVEETTUMURI, PALLIPPURAM VILLAGE. 18. KALANTHARKUNJU BASHEER, BUSHRA MANZILIL, KADINAMKULAM MURI, KADINAMKULAM VILLAGE. ADV. SRI.THOMAS M.JACOB THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/3/2009, THE COURT ON 02/04/2009 PASSED THE FOLLOWING: ORDER IN IA.NO.3137/2007 IN CRP.NO.1100/2007 ------ Dismissed 02/04/2009 Sd/- HARUN-UL-RASHID, JUDGE. HARUN-UL-RASHID,J. --------------------------- C.R.P.NO.1100 OF 2007 ---------------------------- DATED THIS THE 2ND DAY OF APRIL, 2009 O R D E R Petitioners herein are the petitioners 2 to 4 in E.A.No.117/2004 in E.P.No.61/2003 in O.S.No.432/1990 on the file of the Munsiff's Court, Attingal. They are the third parties to the above suit as well as the execution petition. The suit was filed by the successors in interest of Sheik Nayanar Kochu Marakkar and Meeravu Kunhali for a dclaration that only the successors of Kochu Marakkar and Meeravu Kunhali inclusive of plaintiffs and defendants 1 and 2 alone have the right to possess the plaint schedule properties, to re-construct the “Elankam” in plaint A schedule property to perform the poojas and to administer the “Elankam” in the name of Asan Marakkar Appache Thekkathu and for an injunction restraining defendants 3 to 12 therein from interfering with the possession and enjoyment of the plaint schedule properties. Recovery of possession was also sought for in -2- CRP.No.1100/2007 respect of B and C schedule properties. There is a “Thekkathu” (Elankam) in the plaint A schedule property of the suit, which is known as Asan Marakkar Appache Thekkathu. Plaint A, B and C schedule properties are the properties belonging to the Thekkathu. 2. By a decree and judgment dated 15/3/1994 the suit was decreed declaring that the successors in interest of Sheik Nayanar Kochu Marakkar and Meeravu Kunhali including plaintiffs and defendants Nos.1 and 2 have the right to possess plaint A schedule property, to re-construct the “Thekkathu” or “Elankam” in plaint A schedule and to administer the place of worship in the name of Asan Marakkar Appacha Thekkathu and the Elankam. Recovery of possession of plaint B and C schedule properties from defendants 3 to 12 was also passed and a permanent prohibitory injunction restraining defendants 3 to 12 from starting any place of worship in the name of Asan Marakkar Appacha Thekkathu and from interfering with the right of plaintiffs to administer and possess A, B and C schedule -3- CRP.No.1100/2007 properties. Appeal preferred by defendants 3 to 12 as A.S.No.39/1991 was dismissed. 3. Plaintiffs and defendants 1 and 2, who are decree holders, filed E.P. for delivery of B and C schedule properties. There is a prayer for injunction against the judgment debtors under Order XXI Rule 32 C.P.C. for disobedience of the decree for prohibitory injunction. 4. While the EP was pending, the revision petitioners and others filed E.A.No.117/04 to implead them as supplemental decree holders 9 to 11 and to declare that the petitioners are competent to execute the decree passed in the suit. According to the petitioners in E.A.No.117/2004, the Muslim Jama-Ath, Kaniyapuram along with some other persons had constituted a body called “Asan marakkar Appacha Thekkathu Samrakshna Samithi”, that subsequent to the passing of the decree, i.e. On 11/9/1995, the plaintiffs as well as defendants 1 and 2 had jointly executed an agreement in favour of the lst petitioner, who is the President of the Janakeeya Committee, that the plaintiffs and -4- CRP.No.1100/2007 defendants 1 and 2 had released all their rights to Janakeeya Committee and therefore, they prayed that the E.A.No.11l7/2004 may be allowed. 5. The contesting respondents inter alia contended that the application is not maintainable, that the petitioners have no right to file a petition under Order XXI Rule 16 C.P.C. and that the Jama-Ath is trying illegally to take over the administration of the Thekkathu after constituting a Samithi. The court below declared the right of legal representatives of Sheik Nayanar Kochu Marakkar and Meeravu kunjali inclusive of the present plaintiffs and defendants 1 and 2 to possess the plaint schedule properties. The contesting respondent admitted that an agreement was executed in favour of Kasim Kunju to conduct worship; but it is not correct to say that the plaintiff and defendants 1 and 2 transferred the right obtained under the decree to the Janakeeya Committee, that the parties had subsequently cancelled the deed No.120/97, that the Janakeeya committee was not a party in the suit and that there is only an entrustment to Kasim Kunju for -5- CRP.No.1100/2007 performance of poojas and that the petitioners have no right to get themselves impleaded in the execution petition nor they have any right to execute the decree. 6. Originally the said application was dismissed. In C.R.P.No.1150/2005 filed against the said order this Court remanded the case for fresh consideration. After remand, the execution court dismissed the E.A. by order dated 25/7/2006. Another C.R.P.No.589/2006 was filed by the petitioners herein, in which this Court remanded the matter again for fresh disposal. 7. The evidence consists of the oral testimonies of PWs.1 to 3 and DW-1 and Exts.A1 to A3 and Exts.B1 to B8 are marked. According to the petitioners, Exts.A1 is an agreement assigning the rights under the decree in favour of Kasim Kunju. I have read the said document. A bare perusal of Ext.A1 would show that the parties never intended to assign the decree. From Ext.A1 it can be seen that some of the plaintiffs and one Kasim Kunhu entered into an agreement and Kasim Kunhu was allowed to conduct the Poojas. Kasim Kunhu as President is representing -6- CRP.No.1100/2007 Kaniyapuram Jama-Ath Commttee. This Court also noticed that the decree is passed in favour of successors of Sheik Nayanar Kochu Marakkar and Meeravu Kunhali including the plaintiffs, 12 in number, and defendants 1 and 2. So the decree was passed in favour of a large group of people, who are the successors in interest of Sheik Nayanar Kochu Marakkar and Meeravu Kunhali. Ext.A1 was executed in favour of Kasim Kunhu by some members of Kaniyapuram Asan Marakkar Appacha Charitable Society No.634/88. The executant of the document includes some decree holders as members of a Society. The majority of decree holders are not parties to this agreement and therefore it is not binding on them. The agreement only authorises the President of Janakeeya Committee to perform the religious rights. It is recited in Ext.A1 that for the purpose of existence, development, administration and performing the rituals, Thekkathu was entrusted to him. It is also stated that earlier the Thekkathu was entrusted to Abdul Kareem; but he mismanaged the affairs of the Thekkathu and therefore his -7- CRP.No.1100/2007 service was terminated and that in that context, administration of Thekkathu was entrusted to Sri Kasim Kunhu. In the circumstances, Ext.A1 agreement was executed between two groups, who are not decree holders in the suit. Administration of Thekkathu is entrusted to Kasim Kunhu subject to the condition stipulated in the agreement. By no stretch of imagination this document could be construed as a document assigning the rights of decree holders in O.S.No.432/90. Ext.A1 document at best can be construed as an entrustment with the administration of Thekkathu by some members of the Society in favour of the petitioners in EA.No.117/2004. Subsequently, by Ext.B2 document, Ext.A1 had been revoked by the parties. 8. There is considerable force in the contention raised by the decree holders that the petitioners in the E.A. are name lenders of judgment debtors. The execution court also noted that in the objection the 4th judgment debtor pointed out that the very same averments in E.A.No.117/2004 are the repetition of averments of the judgment debtors. Moreover, the entrustment of -8- CRP.No.1100/2007 administration by some of the plaintiffs is in their individual capacity as members of the Society, whereas the decree holders are plaintiffs and defendants 1 and 2. It is clear that Ext.A1 cannot be treated as an assignment of a decree. It is rightly held by the court below that the decree obtained in favour of the plaintiffs in the suit is in a representative capacity and therefore, they cannot create a document independently affecting the interest of the other successors of Sheik Nayanar Kochu Marikkar and Meeravu Kunhali. Even if it is assumed that it is an assignment, the document created at best can be construed as a licence created by parties to the said document, who have no right to create a licence, which will bind the decree holders. 9. The right conferred upon to Kasim Kunhu is a right to perform religious duties and worship. Ext.A1 is not a document of assignment. Entrustment of administration for performing religious rights is not a transfer recognized by law. There was an entrustment for performing religious rights in the earlier years and the evidence disclosed that even the predecessors of Sheik -9- CRP.No.1100/2007 Nayanar Kochu Marakkar and Meeravu Kunhali had entrusted Asan Marakkar Appacha Thekkathu to third partes for conducting poojas in the Elankam. 10. In the circumstances of the case, this Court confirmed the finding of the execution court that there is no valid assignment of the decree under Ext.A1, that the plaintiff and defendants 1 and 2 alone are competent to execute the decree, and that the E.A. No.117/04 filed by the petitioners is devoid of any merit. C.R.P. is devoid of any merit and therefore dismissed. HARUN-UL-RASHID, Judge. kcv.