IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 SA.No. 42 of 1995() ------------------- AS.74/1990 of SUB COURT, OTTAPPALAM OS.244/1986 of MUNI-MAGI.COURT,PATTAMBI .................... DEFENDANTS 1 TO 4/ RESPONDENTS 1 TO 4/ APPELLANT: --------------------- 1. SANKARAN ALIAS SANKUNNI, S/O. THAZHATHEPURACKAL RAMAN, KULUKKALLOOR AMSOM, OTTAPPALAM TALUK. 2. KUNCHU, DO. DO. 3. NAGAN, DO. DO. 4. RADHAKRISHNAN, S/O. THAZHATHEPURACKAL PANGAN, DO. DO. BY ADV. SRI.V.SIVASWAMY SRI.K.I.MAYANKUTTY MATHER SMT.JIJIMOL J.VADAKKEN SRI.V.V.ASOKAN PLAINTIFFS AND DEFENDANTS 5 TO 7/APPELLANTS AND RESPONDENTS 5 TO 7/ ----------------------------------------------- RESPONDENTS. 1. RAMACHANDRAN, S/O. PARUKUTTY AMMA, CHERUKODE DESOM. 2. ASOKAN NAMBOODIRIPAD, S/O. PARAMESWARAN NAMBOODIRIPAD, ERAVINALLOOR MANA, OTTAPPALAM. 3. THE COMMISSIONER H.R& C.E. DEPARTMENT (ADMINISTRATION), KOZHIKODE. ..2/ ..2.... SA. NO.42/1995 4. THARAKKAL UNNIKANDANUNNI, FIT PERSON, MULAYANKAVU TEMPLE, CHERUKODE, OTTAPPALAM. 5. DR.KRISHNANUNNI, S/O. THARAKKAL PARUKKAVU ALIAS AMMA VARASSIAR TRUSTEE, MULAYANKAVU TEMPLE, OTTAPPALAM. BY ADV. SRI.R.RAJESH KORMATH SMT.S.JAYASREE SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SMT.SANJANA R.NAIR } SRI.JAYKAR.K.S. } SRI.RAHUL VARMA } R1 SRI.V.S.ROBIN } BY GOVERNMENT PLEADER SI. L.G. SURESH BABU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29 /02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A. NO.42/1995 ORDER ON CMP. NO.122/1995 IN S.A. NO.42/1995 DISMISSED 29.02.2008 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.S. TO JUDGE tss M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO. 42 OF 1995 =========================== Dated this the 29th day of February, 2008 JUDGMENT Defendants 1 to 4 in O.S.244/1986 on the file of Munsiff Court, Pattambi are the appellants. Defendants are the respondents. Appellants instituted the suit for permanent prohibitory injunction. The relief sought for in the plaint are(i)permanent prohibitory injunction restraining the respondents from destroying the sanctity of the temple and from removing the signboards installed in the temple compound and (ii)restraining respondents from taking cattle through item No.1 of the plaint A schedule property with the assistance of non-Hindus. The suit was filed by the idol Mulayankavu Bhagavathi temple. The temple was represented by two worshippers.It was contended that item No.1 of the plaint schedule property is where the temple is situated and item No.2 is the temple pond and the temple and its S.A.42/1995 2 property belong to Tharakkal Variyam. It is a very ancient temple constructed 300 years back and worshipped by the public of the locality. It was contended that there are 10 tharas and 4 desoms forming the jurisdiction of the temple and the persons who represented the idol in the suit are residing within the jurisdiction of the temple and important ceremonies of Mandalam and Pooram are conducted in the temple during the month of Makaram and Medam in the temple ground in item No.1 of plaint schedule property. According to the appellants, item No.1 of the plaint schedule property is essential for conducting Pooram and other festivals attached to the temple and the temple is situated towards the south of the road, which lies on the south of item No.1 and temple pond is used by worshippers and Velichappad for bathing and appellants 1 to 4 are residents to the east of item No.1 of the plaint schedule property and those properties were originally uninhibited and 10 years back appellants 1 to 4 constructed S.A.42/1995 3 residential buildings and are residing therein. Item No.1 of the plaint schedule property is situated towards the north of Koppam-Pengattiri public road. In item No.1 there is an Agrassala, Pathayapura temple well and the sacred banian trees with basement constructed around them. All the trees and basements are sacred to the temple and rituals are performed there during festivals. There is an earmarked pathway in the temple towards the north for the performance of Thalappoli. All ceremonies related to the temple are being celebrated from time immemorial, without any hindrance by the Hindus residing in the Thattakam. The non-Hindus do not enter the plaint schedule property. There is a custom prevailing in that locality prohibiting entry for the non-Hindus. It was contended that all the non-Hindus in the locality are aware of this custom and never used to enter the temple ground and appellants 1 to 4 are nonvegetarians and they are in the habit of depositing bones and remnants of fish and meat in S.A.42/1995 4 the temple ground adversely affecting the sanctity of the temple. It was also contended that appellants 1 to 4 are engaging non-Hindus to take their cattle through the temple ground for the purpose of cultivation and due to this unholy acts of respondents, special poojas and offerings are conducted in the temple to purify the temple. To prevent the entry of non-Hindus, sign boards were placed on all sides of item No.1 and respondents have deleted the first letter of Malayalam word non-Hindus destroying the very intent of placing the name Boards. A complaint was lodged before Police and police admonished respondents from doing such acts. It was also contended that respondents 1 to 4 approached the Revenue Divisional Officer, Ottapalam for getting the sign boards removed and some officials visited the temple and threatened to remove the boards and respondents have no right to get the sign boards removed. It was also contended that there are several persons supporting the view of appellants 1 to 4, to destroy the S.A.42/1995 5 purity and sanctity of the temple and appellants are sued in their representative capacity and they are to be restrained by a permanent prohibitory injunction from destroying the sanctity of the temple or taking cattle through item No.1 of the plaint schedule property, with the help of non-Hindus. 2. Appellants in their joint written statement contended that boundaries of the plaint schedule properties are not correct and respondents are not entitled to file a suit representing the temple and the temple is a private temple managed by members of Tharakkal Variyam such as Sreekandhanunni and Ramanunni and appellants are Carpenters residing within the Desom and Thara constituting the temple and they are also worshippers of the temple and every year during the month of Vrischikam they make offerings in the temple by lighting lamps all around the temple and first respondent is not residing within the Thattakam and appellants 1 to 4 are residing in the east of the temple and case S.A.42/1995 6 that their properties were originally not inhibited is not correct. The houses where appellants are residing were there more than 50 years and case that there is a pathway particularly earmarked for leading the Thalappoli procession from the western side towards the temple is not true. The entire temple ground is lying vacant. It was contended that allegation that non-Hindus always never enter the temple ground is not correct and they have entry except the portion constituting the temple and its courtyard. The sign boards preventing entry of non-Hindus were placed only about one month prior to the filing of the suit and for ingress and egress to the house of respondents 2 and 3 there is no other way except the way through the temple ground, to reach Koppam-Pengattiri Public road. All the houses came into existence more than 50 years ego. There are several non-Hindus who frequent the houses and if respondent place sign board restricting non- Hindus from entering the plaint schedule property, S.A.42/1995 7 it will adversely affect the life of appellants 1 to 4 and other residents of the locality and respondents are not entitled to the decree sought for. It was also contended that the proceedings before the Revenue Divisional officer was quashed by this court in M.C.1015/1986 due to technical reasons and on that ground respondents are not entitled to the decree sought for. Respondents 5 to 8 also filed separate written statement. 3. Learned Munsiff on the evidence of Pws.1 to 5, Dws.1 and 2, Exts.A1 to A4(a) and Exts.B1 to B10, Ext.X1, Exts.C1 and C2 dismissed the suit holding that entry of the respondents or non- Hindus cannot be restricted by a decree for injunction and the temple coming within the Hindu (Religious and Charitable Endowments) Act and appellants are not entitled to institute the suit representing the temple and they are not entitled to the decree sought for. Appellants challenged the judgment before Sub Court, Ottapalam in A.S.74/1990. Learned Sub Judge on reappreciation S.A.42/1995 8 of evidence found that though the temple is coming within the Hindu (Religious and Charitable Endowments) Act and 7th respondent is a fit person appointed by the Board, the entire temple compound is to be treated as part of the temple and respondents are not entitled to do any act affecting the sanctity to the temple by inducting non-Hindus. A decree restraining appellants 1 to 4 from taking cattle to the temple compound with services of non-Hindus or from doing any act affecting the sanctity of the temple was granted. They were also restrained from removing the sign boards. That judgment is challenged in this second appeal. 4. The second appeal was admitted formulating the following substantial questions of law. 1. Whether plaintiffs who are not shebites or trustees competent to file the suit on behalf of the idol. 2. Will taking of cattle through S.A.42/1995 9 item No.1 of the plaint schedule property will affect the purity or sanctity of the temple which is situated at a lower level than the temple compound and if so whether first appellate court were justified in granting a decree. 5. Learned counsel appearing for appellants and respondents were heard. 6. The decree granted by first appellate court is permanent prohibitory injunction restraining appellants 1 to 4 from taking cattle through the temple compound with the services of non-Hindus or any act affecting the sanctity of the temple and also restraining them from removing the sign boards. There are two items in the plaint schedule properties. Item No.1 is having an extent of 4 acres and 85 cents and item No.2 is having an extent of 54 cents. They are in R.S.No.246/3 and R.S.No.252/8, 252/9 Kulukallur S.A.42/1995 10 Village. The fact that item No.1 and 2 of the plaint schedule property belong to Mulayankavu temple which is an ancient temple which is in existence for the last three centuries was not disputed. The temple is admittedly coming under Hindu (Religious and Charitable Endowments) Act. Though the suit was instituted with the idol as the plaintiff, two worshippers of the locality have represented the idol. The case of the appellants was that as the temple is governed by Hindu (Religious and Charitable Endowments) Act, persons who represented the temple are not trustees of the temple suit is not maintainable. When the idol itself is a legal entity and the suit is filed by the idol as the plaintiff, the fact that two worshippers represented the idol will not make the suit not maintainable, as the suit by the idol itself is maintainable. True, 5th respondent who was the 7th defendant in the suit was appointed as the fit person by the Board. Fact that the fit person or the authorities under the Hindu (Religious and S.A.42/1995 11 Charitable Endowments) Act, did not act against the illegal acts does not mean that the worshippers on their own are not entitled to institute the suit to preserve and protect the temple and its properties. Learned counsel appearing for respondents 1 and 2 pointed out that as declared by the Apex Court in Gopalakrishnan v. Cochin Devaswom Board (2007(4) KLT 965) properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees and it is the duty of the court to protect and safeguard the properties of religious and charitable institutions from wrongful claims and misappropriation and first appellate court rightly found that the suit is maintainable. The Honourable Supreme Court considering the necessity to protect the properties of the temple, in Gopalakrishnan's case (supra) held:- “The properties of deities, temples and S.A.42/1995 12 Devaswom Board, require to be protected and safeguarded by their trustees/archakas/shebaits employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion or the authorities concerned. Such acts of fences eating S.A.42/1995 13 the crops should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to pervent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.” When it is the settled position,finding of first appellate court that suit is maintainable is correct. 7. Then the question is whether the respondents could be prevented from using any portion of the plaint schedule properties as a way. S.A.42/1995 14 In fact in the plaint no relief is sought against using any portion of the plaint schedule properties as a way. The relief sought was only limited to prevent appellants from taking cattle through the temple compound “with the service of non-Hindus”. In fact as per the relief sought for, respondents have no grievance against appellants taking cattle through the plaint schedule property. The objection is limited to taking cattle through the temple compound, with the assistance of non-Hindus. Nothing was pointed out by which entry of non- Hindus to the temple compound, which is a public temple, could be prevented. If case of respondents is that there is no way through the temple compound and appellants are to be restrained from using any portion of the temple compound as a way one could have appreciated the case. If the case of the respondent was that by taking cattle through the temple compound the sanctity of the temple would be adversely effected could also be appreciated. But that is not the S.A.42/1995 15 case. If cattle could be taken by Hindus, through the temple compound I do not find what could be a valid objection for taking cattles, with the service of non-Hindus. Learned Sub Judge has relied on the recitals in Ext.A4 thantrasamuchayam which provides that the outer wall of the temple should be at a distance of 7 dhanus from the Sanctum Sanctorum. Admittedly plaint schedule temple does not have an outer wall on the four sides of the temple compound. Ext.C1 report submitted by the Commissioner with the evidence prove that plaint schedule properties are lying to the north of Koppam -Pengattri Public road. The property of appellants are to the east of the plaint schedule properties. The Commissioner reported existence of a way, which starts from the north of the plaint schedule property and reaches the southern public road. It runs through the eastern portion of the plaint schedule properties. After proceeding towards the middle of the properties, the way branches and one branch S.A.42/1995 16 proceeds towards the north west and reaches a public way. Therefore it is clear from the evidence that though the plaint schedule properties belong to the temple, there exist a way through the plaint schedule properties. Appellants did not raise any objection in using any portion of the plaint schedule properties as a way. In such circumstances, respondents cannot be heard to contend that eventhough cattle could be taken through that way, cattle cannot be taken with the service of non-Hindus. The sanctum sanctorum is further towards the west of the way. It is admitted case that the sanctum sanctorum is at a lower level than the remaining portions of the properties. In such circumstnce, by taking cattle through the eastern portion of the plaint schedule property, it may not cause any hindrance to the sanctity or purity of the temple. The fact that cattle is being taken with the service of non- Hindus will not make any difference. In such circumstance, first appellate court was not S.A.42/1995 17 justified in granting a decree for injunction restraining appellants from taking cattle with the service of non-Hindus. But appellants are not entitled to do any act adversely effecting the sanctity or purity of the temple. To that extent, the decree granted by the first appellate court is correct. The appeal is partly allowed. The judgment of Sub Court, Ottapalam in A.S.74 of 1980 is modified. Portion of the decree restraining defendants 1 to 4 from taking cattle through the temple compound with the service of non-Hindus alone is set aside. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A.NO. 42/95 --------------------- JUDGMENT 29TH FEBRUARY,2008