IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 AS.No. 627 of 2000(A) --------------------- OS.108/1991 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT: PLAINTIFFS 1 TO 6, 8 TO 13,15 TO 19, 22 TO 26 AND 28 TO 30 ------------------------------------------------------------------------------------------------------ *1.VASUDEVAN PILLAI , SUBHA VIHAR POTHENKODU, MANNARA WARD, ANDOORKONAM VILLAGE (DIED) 2. BHUVANACHANDRAN PILLAI, MUTTATHIL VEEDU, PANIMOOLA MANNARA WARD, ANDOORKONAM VILLAGE 3. V.M.STALIN, SUBHA VIHAR, MANNARA WARD, POTHENKODU, ANDOORKONAM VILLAGE 4. REVEENDRANATHA KURUKKAL, LALITHA NIVAS, MANNARA WARD DO. DESOM AND DO VILLAGE 5. RAMAN PILLAI KESAVAN NAIR, SREE NILAYAM KAROOR EDATHARA MURI, ANDOORKONAM VILLAGE 6. RAMAKRISHNAN NAIR MADHUSOODANAN NAIR KIZHAKKE VILAKATHU VEEDU DO. DO. 7. BALAKRISHNANA NAIR, MANIKUTTAN NAIR, POOTHAMKOTTU VEEDU, DO. DO. 8. CHELLAPPAN PILLAI HARIKUMAR, KRISHNAMBARAM, DO. DO. 9. PARAMESWARAN NAIR P.T., MADHAVAN, KIZHAKKEVILAKATHUVEEDU DO. 10. CHELLAPPAPN PILLAI RAJENDRAN NAIR, KRISHNAMBARAM DO. 11. SANKARAPILLAI RAGHAVAN PILLAI, MAYA BHAVAN, DO. DO. 12. KRISHNA PILLAI VELAYUDHAN PILLAI, KAROORKADA, DO. DO. 13. KRISHNA PILLAI VIJAYAN NAIR, PUTHENVEEDU, CHETTICHIRA, DO DO. 14. KUTTAN PILLAI, VIKRAMAN NAIR, VANDANAM, DO DO. 15. SUKUMARA PILLAI VISWAMBARAN NAIR, AKKARAVILA VEEDU, DO. DO. 16. KRISHNA PILAI APPUKUTTAN NAIR, THETTICHIRA PUTHENVEEDU DO. DO. 17. VASUDEVAN PILLAI SOMAN NAIR, STHUTHI VIHAR, DO. DO. 18. SANKARA PILLAI VELAYUDHAN NAIR, PALAPUNCHIVILA VEEDU, DO. DO. 19. GANGADHARAN PILLAI CHANDRAN NAIR, DHANYA BHAVAN, DO. DO. 20. SANKARA PILLAI PARAMESWARAN NAIR, ANJANA BHAVAN , DO. DO. 21. MADHAVAN PILLAI KRISHNANA NAIR KIZHANGOTTUVILAKATHU VEED, DO. DO. 22. PARAMESWARAN PILLAI SADASIVAN NAIR, THENAKKATTUVILAKATHU VEEDU, DO. DO. **23. NARAYANAN PILLAI SREEDHARAN PILLAI, PANIMOOLA PANAYIL VEEDU , DO. DO. ( DIED, DELETED) 24.C.DAMODARAN VAIDHYAN , POONANKOTTU VEEDU, DO. DO. 25. SASIKUMARAN NAIR, VADAKKEKUNNUVILA VEEDU, DO. DO. BY ADV. B.KRISHNA MANI RAHUL VENUGOPAL * IT IS RECORDED THAT THE 1ST APPELLANT IS DEAD AND THAT THERE IS NO NEED TO IMPLEAD THE LEGAL REPRESENTATIVES VIDE ORDER DATED 18.12.2001 ON C.M.P NO. 4802/2001 ** IT IS RECORDED THAT APPELLANT NO. 23 EXPIRED ON 8.5.2004 VIDE ORDE DATED 24.5.2004 ON MEMO DATED 17.5.2004-CF 9592/2004 THE NAME OF 23RD APPELLANT IS DELETED FROM THE PARTY ARRAY AND IT IS RECORDED THAT NO ONE NEED BE IMPLEADED AS HIS LEGAL REPRESENTATIVE AT THE RISK OF THE APPELLANTS VIDE ORDER DATED 24.5.2004 ON I.A. 1350/2004 RESPONDENTS/DEFENDANTS AND PLAINTIFFS 7,14,20,21, AND 27 --------------------------------------------------------------------------------------------- 1. SREE PANIMOOLA DEVI TEMPLE, ANDOORKONAM 2. KUNJUKRISHNA PILLAI BAHULEYAN NAIR, VIJAYAVILASAM VEEDU PEZHUMKUZHI POTHENKODU, EDATHARA MURI, ANDOORKONAM VILLAGE (EXECUTIVE COMMITTEE PRESIDIENT OF SREE PANIMOOLA DEVI TEMPLE) 3. MADHAVAN PILLAI GOPALAN NAIR, EDAKKATTUKONATHU VEED EDATHARA MURI, ANDOORKONAM VILLAGE (PRESIIDENT OF BOARD COMMITTEE) 4.CHELLAPPAN PILAI SUKUMARA PILLAI (SECRETARY) USHA KEEZHAIKONAM, VENJARAMOODU, NILANADU VILLAGE FROM MOOZHIBHAGOM, EDATHARA MURI, ANDOORKONAM VILLAGE) 5. PADMANABHA PILLAI BHASARAN NNAIR (JOINT SECRETARY) PULIMOODU VEEDU, MANNARA WARD, ANDOORKONAM VILLAGE 6. MADHAVAN PILLAI MANIKANTAN NAIR (JOINT sECRETARY) KARIKKALATHUKONATHU VEEDU DO. DO. 7. KUMARA PILLAI KRISHNA PILLAI (TREASURER), KRISHNA VILASAM VEEDU EDATHARA MURI OF DO. VILLAGE 8. AYYAPPAN PILLAI RAVEENDRAN NAIR, EDATHARA VEEDU, EDATHARA MURI ANDOORKONAM VILLAGE 9. JANARDHANAN PILLAI, PRABHARAN NAIR, ERMANGALATHU VEEDU DO. DO. 10.CHELLAPPAN PILLAI GOPIMOHANAN NAIR, JANAKI MANDIRAM OF DO. DO. 11. RAGHAVAN PILLAI SIVANKUTTY NAIR, LEKSHMI NILAYAM FROM KIZHAKKE MANALUVATTOM VEEDU , DO. DO. 12. CHELLAPPAN PILLAI VELAYUDHAN NAIR, KODUPOOJA VEEDU DO. DO. 13. PARAMESWARAN PILLAI BHASKARA PILLAI, NANKARTHALA VEEDU DO. DO. 14. M.AYYAPPAN NAIR, MANGALATHU VEEDU OF DO. 15. V.KRISHNANKUTTY NAIR, ROHINI BHAVAN , PANIMOOLA ANDOORKONAM P.O 16. R.SUKUMARAN NAIR, LEKSHMI NIVAS, PANIMOOLA ANDOORKONAM P.O THIRUVANANTHAPURAM DISTRICT 17. G.KRISHNANKUTTY NAIR, MURALEEPURAM , PANIMOOLA , ANDOORKONAM P.O, THIRUVANANTHAPURAM 18. VELAYUDHAN PILLAI PEETHMBARAN NAIR, KIZHAKKEKONATHU VEEDU,DO.DO. 19. GOPALA PILLAI MAHESWARAN NAIR, PUTHUSSERIVILA VEEDU OF DO. DO. 20. MADHAVAN GOPI, KUNNUVILA VEEDU OF DO. DO. 21. VELAYUDHAN SOMAN NAIR, PALPUNCHIVILA VEEDU OF DO. DO. 22. KRISHNA PILLAI RADHAKRISHNAN NAIR, TWINCE, DO. DO. ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE FOR R2,R3 SRI.B.S.SWATHY KUMAR FOR R2,R3 SRI.FRANKLIN CHELLATH SRI.G.SUDHEER SRI.BINDU SREEKUMAR SRI.MOHAN C.MENON FOR R1,R2,R8-12&14 SRI.T.C.MOHANDAS FOR R1,R2&13 SRI.T.M.SUNIL FOR R1,R2&13 SMT.S.CHITHRA FOR R13 SRI.A.R.GANGADAS FOR R13 SRI.A.S.BRIJESH FOR R13 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A. NO. 3448/2005 IN A.S. NO. 627 OF 2000 ALLOWED C.M.P. NO. 1449 OF 2001 IN A.S. NO. 627 OF 2000 DISMISSED C.M.P. NO. 1448 OF 2001 IN A.S. NO.627 OF 2000 ALLOWED C.M.P. NO. 2407 OF 2001 IN A.S. NO. 627 OF 2000 ALLOWED I.A. NO. 1264 OF 2004 IN A.S. NO. 627 OF 2000 ALLOWED C.M.P. NO. 6231 OF 2000 IN A.S. NO. 627 OF 2000 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 23.9.2009. HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 627 of 2000 ---------------------------------------- Dated this the 23rd day of September, 2009 JUDGMENT The plaintiffs 1 to 6, 8 to 13, 15 to 19, 22 to 26 and 28 to 30 in O.S. No. 108/1991 on the file of the Sub court Attingal are the appellants. The suit was filed for settling a scheme for the administration of the 1st defendant-Sree Panimoola Devi Temple(hereinafter referred to as the temple) and other incidental reliefs. The suit was dismissed by the trial court. Hence the appeal. The parties hereinafter referred to as plaintiffs and defendants as arrayed in the suit. 2. The facts of the case in brief are as follows. According to the plaintiffs , the temple belongs to the members of the Nair Communities of Mannara and Idathara of Andoorkonam village. The plaintiffs are members of the said Nair Communities , and also worshippers and beneficiaries of the temple . Defendants 2 to 7 are claiming to be the members of the Managing Committee of the temple. It is averred in the plaint that there is no rule or bye-law regulating the management of the temple that the management is now being carried out by few persons in secret, that there is neither constitution of a regular Managing Committee nor there is any elected body to carry on the day-to-day administration of the temple, that defendants 2 to 5 and 7 are A.S. No.627 of 2000 -2- mismanaging the affairs of the temple, that the accounts are not kept properly and that the funds are mis-utilised,misused and misappropriated. According to the plaintiffs the accounts are not presented before the annual General Body and no decisions with the participation of the public are taken for the management and administration of the temple . Therefore the plaintiffs prayed that a scheme maybe formulated for the management, development and administration of the temple 3. Defendants 1 to 4 and 7 filed a joint written statement They have denied the allegation in the plaint and contended interalia that the temple is not a public temple, that the plaintiffs have no manner of right or interest over the management and administration of the temple and that the temple belongs to members of 7 Nair families. It is also contended that the festival in the temple was being conducted in connection with the ritual Kudiyiruthumpattu being conducted for 7 days once in 2 years by the members of the said 7 families and that the members constructed the temple by spending their own funds and therefore the averment in the plaint that the members of Hindu communities are having right in the management or administration of the temple is not correct . These defendants contended that defendants 2 to 5 and 7 are the office bearers of the temple and are nominees of the 7 Nair families to whom the temple belongs. It is also stated that the management and administration of the temple is done by a committee consisting of members from the said 7 Nair families and being done as per the prevailing practice. According to these defendants the plaintiffs filed the suit being envied by the popularity gained A.S. No.627 of 2000 -3- by the defendants and developments effected to the temple. 4. Defendants 8 to 13 filed a written statement incorporating the contentions of defendants 1 to 4 and 7. 5. The plaintiffs filed a replication. In the replication they submitted that the temple belongs to the members of the Nair Community in the locality, that only the members of the Nair Community and other Hindu Communities in the locality,have the authority to constitute a committee. The plaintiffs also contended that there is no written bye-law for the management of the temple that defendants 5 and 6 are not members of the said 7 Nair families as alleged by the defendants and that the temple is a public temple. 6. The evidence in this case consists of oral testimonies of PW1 to PW11, DWs1 and 2, and Exts A1 to A42(d) ,Exts B1 to B10 and Ext.X1 to X11. 7. On a consideration of the evidence on record the trial court held that the temple belonged to the 7 Nair families referred to in the written statement and therefore the plaintiffs have no right to maintain a suit under Section 92 of the Code of Civil Procedure for the relief of framing a scheme for the management and administration of the temple and therefore the plaintiffs are not entitled to get a decree as prayed for . Accordingly the trial court dismissed the suit. 8. Before this Court the lawyers appearing on both sides argued the case very elaborately. I have gone through the findings of the learned sub judge and the evidence on record .In the box DW1 testified that the A.S. No.627 of 2000 -4- 5th defendant is not a member of the Committee after having filed a written statement admitting his status as a member of the managing Committee and his further version that additional defendants 8 to 13 are the members of the managing Committee but not pleaded so in the written statement The court below noticed the withdrawal of the contentions by defendants 3 and 4 after having joined in the written statement wherein they have asserted title of the temple in favour of the 7 families referred to in the written statement and held that in the above facts and circumstances it has to be inferred that there is dispute among the members of the managing committee regarding the management and administration of the 1st defendant temple and that members of the 7 Nair families are fighting against each other for retaining the control over the affairs of the temple. It has come out in evidence that the temple building now in existence was constructed in the year 1980, that before the construction there was only a concept of existence of Panimoola Devi, there was no daily poojas and the only ritual offered was the seven days Pattu Vilakku and that the said seven Nair families are conducting the Pattu Vilakku. The trial court held that Exts. B2 to B4 would show that three out of the seven families referred to in the written statement ( viz.Idathara Kizhakkemanalvettom and Nankarthala)set apart properties in their family partitions to meet the expenses for conducting the Pattu Vilakku for the Panimoola Devi that Ext.B1 shows that those seven Nair families obtained 50 cents of property and held it in trust for the said purpose. It is further held that therefore the plaintiffs' claim to the effect that the temple is a public temple created A.S. No.627 of 2000 -5- for the benefit of the Hindus of the locality is not acceptable and the plaintiffs failed to prove their case that the temple belongs to the members of the Nair Community and other communities associated with the Nair community of Idathara and Mannara. The question now called upon to decide is whether the temple is a public trust administered by the representatives of the beneficiary communities as claimed in the plaint or not. The said question can be decided only by appreciating the evidence relating to the construction of the temple building and other structures and by whom the temple is administered subsequent to 1980 . It is not disputed that the temple buildings and other structures are constructed subsequent to 1980.The burden is on the plaintiffs to prove that the improvements in the temple land are put up with the funds of the public and a particular community/group of persons are illegally administering the affairs of the temple The plaintiffs ought to have produced sufficient materials like the account books, vazhipadu receipts, festival brochures and other records pertaining to the period after 1980. The trial court held that the facts and circumstances reveals that two rival groups are quarrelling for the management and administration of the temple and that it is not safe to place reliance on the testimonies of PWs 1 and 7 to 11 and DW1 to enter into a conclusion as to the nature and ownership of the 1st defendant temple. At the same time the learned Sub judge placed reliance on Ext.B1 to B4 documents According to the learned Sub judge Exts.B2,B3 and B4 would conclusively show that the 7 families mentioned in Ext.B1 and referred to in the written statement had set apart A.S. No.627 of 2000 -6- properties in their family partitions for performing pattu vilakku for Sree Panimoola Devi and those families are conducting Kudiyiruthu Pattu which was the only Pooja offered to the Devi before the construction of the present temple in 1980 I have examined Ext.B1 to B4 documents. It is very clear that from time immemorial the seven families were conducting Kudiyiruthumpattu/Pattu vilakku as the case may be for the Devi and they have set apart properties in their family partitions for the said purpose. The defendants also proved the above said fact. I am of the view that Ext.B1 to B4 would not show that the present temple was constructed by the seven families in property by spending their own funds in the year 1980 and members of the said families were administering the temple . Ext.B1 is an assignment deed executed by two strangers. It is evident from Ext.B1 that the 7 families were conducting Pattu Vilakku for seven days once in two years. .Ext.B1 was of the year 1966 and at that time the temple was not there. It is an admitted fact that the concept of the Panimoola Devi was in existence from time immemorial that the 7 families were conducting the Pattu vilakku for the Devi for seven days once in two years before 1980. It is also admitted by both sides that the structures were put up one by one subsequent to 1980. The facts that the concept of Panimoola Devi was in existence even prior to 1980, that the seven Nair families referred to in the written statement have set apart properties holding the same in trust for the Devi for offering Pooja in the form of Pattu vilakku for seven days once in 2 years , cannot be equated with the management and administration of the temple. . The findings of A.S. No.627 of 2000 -7- the trial court is mainly based on Exts B1 to B4. Since the evidence available on record is not sufficient to conclude either way, in my view the matter requires reconsideration. 9. In the result the judgment and decree are set aside and the suit is remanded to the trial court for denovo consideration The trial court shall try and dispose of the matter within a period of 9 months from the date of receipt of a copy of this judgment. The parties shall appear before the trial court on 15.10.2009 Transmit the records immediately There will be no order as to costs The parties are at liberty to adduce further evidence if any. 10. Since the suit was dismissed by the trial court, it is ordered that the state of affairs as of now shall continue till the disposal of the suit after remand. The persons who are in charge of the administration and management of the temple are at liberty to utilise the income including the interest accrued on fixed deposits for meeting the expenses in connection with the administration of the temple. It is made clear that I have not entered into any findings and therefore the trial court shall dispose of the suit on merits in accordance with law. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S. No. 627 of 2000 ---------------------------- JUDGMENT 23rd September, 2009