IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 RSA.No. 384 of 2009() ---------------------------- AS.259/2003 of I ADDL. DISTRICT COURT, KOTTAYAM OS.618/1995 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANTS/APPELLANTS/PLAINTIFFS ----------------------- 1. JAYA ROY, ROY SADANAM, KALAKKAL VAIKOM. 2. RAGHAVAN, KUDUMBATHARA HOUSE, ERAMALLOOR, CHERTHALA. (DIED) 3. AMBUJAKSHI, KUDUMBATHARA HOUSE, ERAMALLOOR, CHERTHALA. 4. KAMALAKSHI, KUDUMBATHARA HOUSE, ERAMALLOOR, CHERTHALA. 5. PRABHAKARAN, KUDUMBATHARA HOUSE, ERAMALLOOR, CHERTHALA. 6. BHARGAVI, CHEKAVAMAKKIL HOUSE, KALAVUMKADAVU, CHERTHALA. 7. PRABHAKARAN, CHAKKANCHIRAYIL, CHERTHALA. 8. ALLI, POOJAKUNNEL, KAKKUMKODE, CHERTHALA. 9. BHAGEERATHI, KOCHUTHARA, VAYALAR, CHERTHALA. 10. RADHAMONY, ROY SADANAM, KALAKKAL, VAIKOM. 11. SASIKALA, ROY SADANAM, KALAKKAL, VAIKOM. 12. BHAVANI RAGHAVAN, KUDUMBATHARA, ERAMALLOOR, CHERTHALA. R.S.A. NO.384/2009 13. LALITHAMMA, W/O.SASIDHARAN, RAJESH BHAVAN, KALAVUKODAM PO., CHERTHALA. 14. THANKAMANY, W/O.A.K.SOMAN, ARACKAPARAMBIL, MAYITHARA P.O., CHARAMANGALAM. 15. KUSUMALATHA, W/O.MANORENJAN, RENJU NIVAS, AVALUKUNNU WARD, THATHAMPALLY.P.O., ALAPPUZHA. BY ADVS. MR.C.V.MANUVILSAN MR.P.G.SURESH RESPONDENT(S): RESPONDENTS/DEFENDANTS --------------------------- 1. SUKUMARAN, PUTHENTHARA, WARD NO.VII, VAIKOM TOWN. 2. ANIL GANDHI, APPASSERIL, MUNICIPAL WARD NO.VII, VAIKOM TOWN. 3. SADASIVAN, NALINAKSHI MANDIRAM, MUNICIPAL WARD NO.VII, VAIKOM TOWN. * 4. MADANADAS, SREE VALLITHARA, WARD NO.VII, VAIKOM TOWN. (DIED) *4TH RESPONDENTIS DIED AS PER MEMO DTD. 15.6.2009 5. DIWAKARAN PUTHUPARA (DINESH BHAVAN), WARD NO.VII, VAIKOM TOWN. 6. PONNAPAN, PUTHUPARA, WARD NO.VII, VAIKOM TOWN. 7. THANKAMMA, KESAVAN NIVAS, WARD NO.XVII, KALAKKAL BHAGAM, VAIKOM. (DIED) 8. P.D.RAJESH, KESAVAN NIVAS, WARD NO.XVII, KALAKKAL BHAGAM, VAIKOM. 9. P.T.KUMARI, ITHAPARAMBU,THYKKAL P.O., VAIKOM. 10. SARADHA, AGED 58 YEARS, W/O.MADANADAS, SREE VALLITHARA, KALAKKAL BHAGAM, VAIKOM. 11. SHANI RAMESH, AGED 42 YEARS, W/O.RAMESH, KUMALUTHARA, KALAKKAL BHAGAM, VAIKOM. R.S.A. NO.384/2009 12. NISHA MAHENDRAN, AGED 38 YEARS, NAGAVEEDU, POOTHOTTA P.O., THRIPUNITHURA, ERNAKULAM. 13. USHA HUMBER, W/O.HUMBER, AGED 35 YEARS, SREE VALLITHARA, KALAKKAL BHAGAM, VAIKOM. *R14 IMPLEADED. 14. TRAVANCORE DEVASWAM BOARD, REP. BY THE COMMSISIONER, TRAVANCORE DEVASWAM BOARD, THIRUVANANTHAPURAM. *TRAVANCORE DEVASWAM BOARD IMPLEADED AS SUPPL. 14TH RESPONDENT AS PER ORDER DTD. 14.1.2010 IN IA. 1637/09 IN RSA.384/2009. R1 TO R3 , R6 TO R8 BY ADVS. MR.S.RADHAKRISHNAN, BY MR.D.ANILKUMAR. R 5 & R10- 13 BY MR.T.S.ARUNKUMAR ADDL. R14 BY MR .P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE R14 BY ADV. MR.P.GOPAL THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NOS.866/09 & 883/09 IN R.S.A. NO.384/2009 CLOSED 01/02/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... R.S.A.No.384 OF 2009 ............................................. Dated this the 1st day of February, 2010. J U D G M E N T This appeal is preferred against the judgment and decree of the Additional District Judge, Kottayam in A.S.No.259/2003. The said appeal was preferred against the judgment and decree in O.S.No.618/1995 of the Subordinate Judge’s Court, Kottayam. The plaintiffs moved a suit for declaration, framing of a scheme and for permanent injunction. It is the definite case of the plaintiffs that Kalakkal temple is a private temple owned and managed by the members of the plaintiffs' family known as Kalakkal. The temple is situated in an extent of 70 cents comprised in Sy.No.206/3 of Vaikom taluk. Since there was difficulty for the lower class of the Hindu community to visit and offer their worships to Vaikom Mahadeva Temple, it is their contention that the property described in the plaint schedule was taken on kuthakapattam by Kochupennu Karumba and thereafter it has been managed by Kochupennu Karumba and on her death, her legal representatives, who constituted, according to them, the Kalakkal family. : 2 : R.S.A.No.384 OF 2009 2. On the other hand, the defendants would contend that this temple is a subsidiary of Lord Mahadeva Temple at Vaikom and it has been under the management of Kalakkal family which is a particular unit and aid etc were given by the Devaswom and therefore neither Kochupennu Karumba nor the members of the family as alleged in the plaint are entitled to get any relief. 3. The trial court, on appreciation of the materials available before it, came to the conclusion that case of kuthakapattam is not established but granted a declaration for framing of a scheme for the future management of the temple. But it is interesting to note that such a direction was given after finding that it was a public temple. 4. In appeal the learned appellate judge reappraised the entire materials and came to the conclusion that kuthakapattam is not proved and the trust is not a private trust as contended by the plaintiffs and therefore dismissed the whole suit. It is against that decision, the plaintiffs have come up in appeal. 5. When the matter came up for admission, a learned : 3 : R.S.A.No.384 OF 2009 Judge of this Court formulated questions of law as shown as D to J in the Memorandum of Appeal and gave a further direction to implead the Travancore Devaswom Board as the additional respondent. They are: D. “Whether the Lower Appellate Court erred in finding in connection with a matter in the suit which is not considered in detail by the lower trial court? E. Whether the Lower Appellate Court Decree is maintainable in connection with an issue which was not a subject matter in the suit before the trial court ? F. Whether the Lower Appellate Court has any right to answer a question which was not adjudicated by the Lower Trial Court and not even framed any issue in relation with the matter in question? G. Whether the Decree of Lower Appellate Court is applicable or maintainable to a stranger who was not a party to the suit at any point of time? H. Whether the Lower Appellate Court can given any direction in favour of anybody to do or not to do a thing who was not a party in a suit or without hearing the other party a t any state of the suit?” 6. Points: At the outset I may like to state that it may not be possible for a civil court exercising jurisdiction under the second appellate stage to adjudicate the right of a party : 4 : R.S.A.No.384 OF 2009 impleaded at the stage of the second appeal. It is true that there is a contention that the propertybelongs to the Travancore Devaswom. But I think for the determination of this case a finding as to whether it belongs to the Devaswom or not, really relevant for the reason that unless the plaintiffs established that they have got the property by virtue of kuthakapattam or there is a private trust in their favour as alleged, the plaintiffs are not entitled to get any relief in the suit. So, it is only on that angle the matter requires determination. It is true that question of considering the applicability of Section 92 will arise when it is found to be a public trust. Here there is no case characterizing the trust as a public trust. If it is found that it is a public trust, being not a private trust as contended by the plaintiffs, the suit has to fail. So, I confine my findings to the two questions alone namely (1) whether the plaintiffs have succeeded in proving the property belonged to Kochupennu Karumba by virtue of a Kuthakapattam and (2) whether the property described is a private trust. Regarding the first point the material available in the case would reveal and : 5 : R.S.A.No.384 OF 2009 even from the mouth of Pw1 that the deity of Nandikeswaran, the main deity of the temple, is in existence for almost 400 years. It is alleged that kuthakapattam is said to be taken by one Kochupennu Karumba. Admittedly she died in the year 1955. Even if she had died at the age of 100, she would not have been born before 1855. Therefore it is very clear that the property was not taken by her on kuthakapatam and the deity has been installed in the property. As evidenced by PW1's version the deity of Nandikeswaran is in existence in the temple for 400 years. When confronted with such a difficult situation, the learned counsel for the appellants would contend that it would have been in existence for a long number of years but in order to correct the things, kuthakapattam had been given and therefore, it must be understood in that sense. 7. It has to be stated that in our State there is no question of granting a temple in kuthakapattam. Therefore, the story of kuthakapattam cannot be accepted. Further the magnacarta relied on by the plaintiffs to establish the case of kuthakapattam is Ext.A1. It is a typed receipt. It : 6 : R.S.A.No.384 OF 2009 does not bear the signature of anybody and what is recorded therein is that an amount of 72 paise had been received from Kochupennu Karumba. Its authenticity, acceptability etc cannot be considered at all for the reason that it is not a receipt issued which bears any signature or seal of the Travancore Devaswom Board. So, Ext.A1 cannot be considered as a piece of evidence to prove the kuthakapattam. Suppose a person is taking a property on lease, there should be innumerable number of documents to establish the factum of lease. Even the evidence of PW1 does not inspire any confidence. He would depose that he does not know anything prior to 1965. Therefore the case of kuthakapattam alleged and found against by the courts below cannot be find fault with to arrive at that decision. 8. The next question is regarding the nature of management of the property. The plaintiffs would precisely contend for the position that it is the family members originated from Kochupennu Karumba who form the owners of the property and it is a private trust made by them and : 7 : R.S.A.No.384 OF 2009 therefore the management vests in them. In order to create a private trust, at lest there must be an averment to the effect that who created the trust and who is the beneficiary. Here except mere the ipsi dixit of the witness, nothing is forthcoming to establish the factum of a private trust. The question of private trust is developed on the basis that it is a private temple which belongs to a group of individuals. The evidence tendered in this case would reveal that the people in the locality used to come there, offer worship and it continues. It is even deposed by PW1 that: It is also stated that it continues to be a public place of worship for all the inhabitants of the locality. PW1 would further state that he does not know how he categorised it as a private trust. He does not know when the private trust was formed. He would further depose that the eldest member in the family was this Kochupennu Karumba. 9. When the temple is in existence for 400 years and : 8 : R.S.A.No.384 OF 2009 as I discussed earlier she had come into being only about 100 years back, the story of her being the eldest ancestral has also to fall to ground. Now it has also to be stated that the main temple is Lord Mahadeva temple at Vaikom. The case attempted to be projected and advanced is that on account of the non entry of Hindus, who belong to lower status at that point of time, installation of Nandi has been done at this place and worship was going on.PW1 clearly admits in page 8 of his deposition that it is a temple which was under the main Mahadeva temple. Therefore it is very clear that the people of the locality had the right to do worship in that place and admittedly it is seen that it is only a temple which has got attachment with Lord Mahadeva temple. 10. I am not going into the other details in the case for the reason that in order to succeed in the case, the plaintiffs should establish two points which are raised by me as points 1 and 2 and in both the points, they have not succeeded in establishing the case and therefore the plaintiffs are not entitled to any relief in the suit. I make it : 9 : R.S.A.No.384 OF 2009 clear that it will not prejudice them from initiating any other suit, if the law so permits . With these observations, the second appeal is dismissed. M.N. KRISHNAN, JUDGE cl : 10 : R.S.A.No.384 OF 2009