IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 RSA.No. 817 of 2007 ----------------------- AS.141/1999 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.80/1991 of SUB COURT, MAVELIKKARA .................... APPELLANTS:PRESENT OFFICE BEARERS OF PARHISSERIL DEVI DEVASWOM COMMITTEE WHO HAVE SUBSTITUTED APPELLANTS/PLAINTIFFS -------------------------------------------------------------------------------------- 1. K.B. NATESAN, PRESIDENT, PATHISSERIL DEVI DEVASWOM COMMITTEE, ARATTUPUZHA, RESIDING AT KOTTISSERIL HOUSE, ARATTUPUZHA NORTH P.O., KARTHIKAPPALLY TALUK ALAPPUZHA DISTRICT 2. S. SUNIL, SECRETARY, PATHISSERIL DEVI DEVASWOM COMMITTEE, ARATTUPUZHA, RESIDING AT KOONTHALASSERIL HOUSE, ARATTUPUZHA NORTH P.O., KARTHIKAPPALLY TALUK ALAPPUZHA DISTRICT BY ADV. SRI.S.SHYAM SRI.G.BENO RESPONDENTS:RESPONDENTS/DEFENDANTS 2 AND 4 ------------------------------------------------------------ 1. K. SIVANANDA PANICKER, NEDIYATHU MADATHIL, KARUVATTA VADAKKUMMURI, KARUVATTA VILLAGE 2. PURUSHOTHAMA PANICKER, SUJANAYIL, EVOOR VADAKKUM MURI CHEPPAD VILLAGE THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. -------------------------------------------------------- R.S.A. No 817 of 2007 -------------------------------------------------------- Dated this the 25th June 2008 JUDGMENT The plaintiffs whose suit was dismissed concurrently by the courts below are the appellants in this Regular Second Appeal. The appellants filed O.S. No 80 of 1991 before the Sub Court, Mavelikara, alleging that it was being instituted in a representative capacity for framing a scheme for the effective management of the plaint schedule temple and its properties and alternatively for declaring possession of schedule properties with the plaintiffs on the allegation that the first plaintiff is the President and the second plaintiff is the Secretary of Pathisseril Devi Devaswom Committee, which is in absolute possession and administration of Arattupuzha Pathisseril Devi temple; that the temple and all the properties belonging to the temple, both movable and immovable, are under their management, the schedule temple being a public temple and its properties constitute a public trust and the plaintiffs are in management of the temple and its properties and are conducting poojas and other festivals for the temple; that defendants 1 to 4 are members of Neyyisseril familyof Chingoli village RSA 817/07 2 and they are impleaded in a representative capacity for and on behalf of all members of the said family and further that the first defendant is impleaded also in his capacity as the receiver appointed in O.S. No 133 of 1987 on the file of the Munsiff's Court, Haripad after getting permission from court for suing him in his capacity as receiver; that the landed property having an extent of 1 acre and 2 cents comprised in survey No 203 B of Arattupuzha village described in A schedule to the plaint originally belonged to Neyyisseril family of Chingoli village, that the ancestors of the family constructed a small temple and installed a Devi diety some 100 hears ago for the purpose of worship by the public of the locality, that none of the family members are residing in Arattupuzha village and they have no interest in the temple as well, that the intention of the founder was not to maintain the temple as a family temple but to have it open to the public worshipers of Arattupuzha village and the people of Arattupuzha village are treating the deity as their Paradevada offering worship; that for some time there was no proper management and as such a committee was formed for the administration of the temple and the temple was being managed by the committee, that seeing the progress of the temple and its RSA 817/07 3 increased income some of the members of the family of defendants 1 to 4 made an attempt in the year 1120 M.E to take over the management of the temple and created some documents among the family members but their attempt could not get materialised due to the intervention of the public and also due to internal conflict between the members of the family; that in the year 1980 the representative of the Hindu worshipers of the locality formed a committee and elected President and Secretary for systematically managing the temple; that during some period defendants 2 and 3 had also acted as President and Secretary, that in the year 1989 third defendant using his position as President of the Society unauthorisedly opened the Sreekovil of the temple during night and committed theft of valuable gold ornaments, furniture and the entire records of the committee and thereafter the second defendant also absconded with the key, that on 20.04.1989 third defendant attempted to trespass into the temple during night but the said attempt was thwarted, that they have committed breach of trust and therefore on 23.04.1989 the members of the locality wanted to have a permanent committee and accordingly by-law was formed and Pathisseril Devi Devaswom Committee was registered and thereafter the committee was RSA 817/07 4 managing the affairs of the temple, that on 18.10.1989 second defendant filed O.S. No 319 of 1989 before the Munsiff's Court, Haripad for a decree of permanent injunction against the Devaswom Committee and the application for permanent injunction, (I.A. 2223 of 1989), was dismissed and thereafter in collusion with the defendants 4th defendant and 13 others in the family filed O.S. No 139 of 1987 for settling the scheme on the false allegation that the temple is in the unauthorised possession of defendants 1 and 3 and also moved an application for appointment of receiver and on coming to know of the said move the plaintiffs filed I.A. 235 of 1990 for getting themselves impleaded in the suit but that was dismissed; C.R.P.No 188 of 1991 filed before this court was also dismissed finding that the remedy of the plaintiffs was to file a proper suit in accordance with the provisions of the Code of Civil Procedure and therefore on 04.02.1991 the Committee decided to file the suit and hence the suit is instituted for framing a scheme for proper management of the Pathisseri Devi temple. Pursuant to the amendment of the plaint, an alternative prayer was also incorporated seeking for a declaration of possession of the schedule property with the plaintiffs. 2. Defendants 1 and 4 filed joint written statement contending RSA 817/07 5 that the suit is not maintainable, that the plaintiffs have no right to file the suit and there is no committee as mentioned in the plaint; that none of the members of the public have any manner of right over the temple or its properties; that even if the committee was formed that will not be binding on the defendants and members of their family; that the plaintiffs filed application to get themselves impleaded in O.S. No 133 of 1987 on realising that the first defendant was likely to be appointed as the receiver of the temple but that was dismissed and thereafter receiver was appointed who is none other than the first defendant in the suit, that the order passed by the Munsiff's Court dismissing the application of the plaintiffs for impleadment was confirmed by this court; that O.S. No 133 of 1987 was filed for framing a scheme for effective administration of the temple and its properties and a preliminary decree was passed in the said suit on 28.02.1991, that since already a scheme suit was filed and a preliminary decree has been passed thereon there is no scope for the present suit, that even in the family document executed on 3rd Chingam 1092 the temple and the schedule property was included in the first schedule and it was provided that the temple should be administered by the senior Karanavar of the family; that thereafter RSA 817/07 6 during 1112 M.E a partition was entered into and the schedule properties were shown as 9th schedule of that partition entrusting the management of the temple and the properties with the then Karanavar Madhava Panicker with a provision for management of the temple by the successive senior Karanavar of the family, that some attempts were made for making the temple property as their own and O.S. No 516 of 1110 M.E was filed and that suit was compromised and a scheme was formulated for management of the temple and its properties and it was decided to select one member each from the five tavazhis and that the committee so formed was to manage the temple with Karanavar of the family as the head; that prior to the compromise second defendant obtained possession of the key of the temple and entered into some arrangement with local people in respect of the temple; that in order to have proper management of the temple, members of the family filed O.S. No 133 of 1987 for framing a scheme and also for getting possession of the temple from defendants 2 and 3 who were in unlawful possession and also for removing them from management; that anticipating that they may be removed they have formed a committee in the year 1989, that the application filed for impleading the present plaintiff in that suit was RSA 817/07 7 dismissed and thereafter the present suit has been filed, that there is no public trust and merely because the devotees were permitted to worship in the temple that will not make it a public temple or a public trust and the suit has to be dismissed. 3. Second defendant filed written statement contending that the suit is filed in collusion with the first defendant, that there is no public trust and the temple is not a public temple and as such plaintiffs are not entitled to get any relief. 4. The trial court raised necessary issues for trial and considering the rival claims advanced and considering the evidence adduced at trial which consisted of only documentary evidence, Exts A1 to A30, B1 to B9 and C1 and C2 dismissed the suit holding that there is no evidence to show that the temple has been dedicated by the family of the defendants for the formation of a public trust to manage and administer the temple and its properties and that they are not in possession and administration of the schedule temple and its properties and that framing of a scheme is not necessary in view of the decree passed in O.S. 133 of 1987 for the administration of the temple. 5. The dismissal of the suit was assailed in A.S. No 141 of RSA 817/07 8 1999 before the District Court, Mavelikara but with no success and hence this Regular Second Appeal. 6. It is vehemently contended before me by the learned counsel for the appellants that there is ample documentary evidence in the case to show that there is implied dedication of the temple and its properties to the trust which had been formed in 1989 for the management of the temple, that from time immemorial the temple was being managed by the public and that therefore the suit should have been decreed by the courts below. 7. In this context it is worthy to note that nobody has entered the witness box to swear to the case alleged in the plaint and consequently there is no oral evidence before this court apart from the documents that are marked in the case. Further it is seen from the report furnished by the District Judge from whom a report was called for that though the appellants-plaintiffs filed a petition for leave to institute a suit under Section 92 of the Code of Civil Procedure, vide I.A. 762 of 1991 the only order passed thereon is “file”. It is to be noted that the plaintiffs have not cared to secure an order on I.A. 762 of 1991 obtaining leave for the institution of the suit under Section 92 of the C.P.C. Further apart from making an averment RSA 817/07 9 that the suit is instituted under Order I Rule 8 no leave was obtained and no publication was effected under Order I Rule 8 to have the suit considered under Order I Rule 8 with the interested parties entering appearance either to support or to oppose the claim advanced in the suit. The result is that any decree that may be passed in this suit will not be binding on the general public except the appellants-plaintiffs and such a suit is not envisaged in the matter of alleged public trust. Further, there is no iota of evidence in the case to show that the family to which the temple belonged namely, Neyyisseril family have dedicated the temple and its properties to the public at any point of time so as to have a public trust formed for management of the temple and its properties. In the circumstances, there is absolutely no merit in this Second Appeal and no question of law and much less any substantial question of law arises for consideration by this court. 8. This Regular second Appeal in the circumstances is dismissed in limini refusing admission. Sd/- K.P.BALACHANDRAN Judge 2506/2008 en [true copy]