IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 AS.No. 355 of 1995() -------------------- OS.7/1993 of SUB COURT, VADAKARA .................... APPELLANTS/PLAINTIFFS: -------------- PAYINGOTTAYI PARADEVADA TEMPLE KOTTAPPALLY VILLAGE, REPRESENTED BY TRUSTEES. 1. KAYITHOLI BALAKURUP, S/O. KANNAKURUP, THAROPOYIL KOTTAPPALLY AMSOM, PAYINGOTAYI DESOM, VADAKARA TALUK. 2. CHATHU S/O. RAMAN, RESIDING AT ONDATHU, KOTTAPPALLY AMSOM, PAYINGOTTAYI DESOM, VADAKARA TALUK. 3. GANGADHARAN S/O. KRISHNAN NAIR, RESIDING AT KARUVANGOTT HOUSE, DO. DO. 4. DIVAKARAN NAMBIAR, S/O. KOMAPPAN ADIYODI, RESIDING AT THODUVAYIL HOUSE, DO. DO. BY ADV. MR. N.L.KRISHNAMOORTHY MR. K.LAKSHMINARAYANAN MS. SATHYASHREE PRIYA RESPONDENTS/DEFENDANTS: --------------- 1. VALAYANGATT KUNHIKRISHNAN THANGAL, S/O. KUNHUNNI NAMBIAR, KOTTAPPALLY AMSOM, PAYINGOTTAYI DESOM, VADAKARA TALUK. 2. SISTER OMANA PILLIATHIRI AMMA, RESIDING AT THODUVAYIL, DO. DO. 3. SISTER KUNHIPARVATHI PILLIATHIRI AMMA, RESIDING AT AVILTHADAM HOUSE, VALIAKODE, IRITTY - 670 703, KANNUR DISTRICT. (...2/-) A.S.355/1995 (2) 4. BROTHER KALLUMBURATH THAMASIKUM VALAYANGOTT SREEDHARAN, KOTTAPPALLY AMSOM, PAYINGOTTAYI DESOM, VADAKARA TALUK. 5. SISTER PULLARUVIL THAMASIKKUM VALAYANGOTT SANTHA PILLIATHIRI AMMA, HOUSEWIFE, MANIYUR AMSOM, ELAMBILAD DESOM, VADAKARA TALUK. 6. BROTHER VALAYAMGAT NARAYANAN, KOTTAPPALLY AMSOM, PAYINGOTTAYI DESOM, VADAKARA TALUK. *7. VALAYAMGATT PADMANABHAN S/O. KUNHAPPA NAMBIAR, TEACHER, KANNAMBATHKARA L.P.SCHOOL,KOTTAPPALLY AMSOM, KANNAMBATHKARA DESOM,DO. TALUK. *8. THAZHA MARAMVEETTIL THAMASIKKUM PULIKKOOL KUNHIRAMAN, S/O. CHATHU, RESIDING AT KOTTAPPALLY AMSOM, PAYINGOTTAYI DESOM, DO. TALUK. (* R7 AND R8 HAVE BEEN STRUK OFF FORM THE PARTY ARRAY AS PER ORDER ON C.M.P.2108/2000 DT. 29.11.2001) 9. MELATH KUNHIKRISHNAN NAMBIAR, DO. DO. 10. THAZHA MARAMVEETTIL THAMASIKKUM PACHIPARAMBATH SANTHA W/O. KUNHIRAMAN, KOTTAPPALLY AMSOM, PAYINGOTTAYI DESOM, VADAKARA TALUK. ADV. MR. B. BHASKARAN FOR R1,2,5,6,10 MR.PARTHASARATHY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- A.S.No.355 OF 1995 -------------------------------------------------- Dated this the 23rd day of March, 2009 J U D G M E N T Plaintiffs in O.S.7 of 1993 on the file of Sub Court, Vadakara are the appellants and defendants therein are the respondents. Suit was filed for recovery of possession of the plaint schedule property on the strength of title and damages. The case of the appellants was that the first appellant temple is a public religious institution under the supervision and control of the H.R.& C.E. Department ever since the promulgation of the Hindu Religious and Charitable Endowment Act, 1951 and plaint B schedule property is a property of the temple and appellant temple has absolute title to the property. Respondents 1 to 8 are claiming right over the property on the basis of alienation by Krishnan alias Kannambath Nambiar Moothavar under Ext.B4 Kuzhikkanam deed dated 3.12.1962 and the said Kannambath Moothavar has been in possession of the property as a trustee and the property is a section of the property shown in the A schedule of the plaint and respondents 1 to 8 have no right or A.S.355/95-D 2 title to the property and the temple is therefore entitled to recover possession of plaint B schedule property on the strength of title with damages @ Rs.4,000/- per annum. 2. First respondent resisted the suit contending that first appellant is not a public religious institution under H.R.& C.E. Act and it is a private temple belonging to Kothayi Kanampurath tarward, which was managed by the karanavan of the then tarward and it was declared a public temple and the Hindu Religious Endowment Board took over the temple only in November, 1976 and until then the properties were being managed by the karanavan Krishnan Nambiar, who granted Kuzhikkanam lease to the predecessor-in-interests of respondents and they have effected improvement and subsequently karanavan of the tarward had ratified the lease by acquiescence and on the death of the lessee the property came to the defendants being the legal representatives and they divided the property by partition karar and respondents 3 and 4 were not allotted any portion and as the lease was prior to the taking over of the temple by Devaswom Board, the provision of H.R.& C.E. Act are not applicable and lessees are entitled to A.S.355/95-D 3 fixity of tenure and they have purchased jenmam right from the Land Tribunal and therefore suit is only to be dismissed. Respondents 2, 5 and 6 in their joint written statement reiterated contentions raised by first respondent. Respondents 1 and 8 filed separate written statements reiterating the contentions of other respondents and stating that they assigned respective portions allotted to them in the partition to the tenth respondent who was subsequently impleaded as additional defendant. Ninth respondent, who was made a party as the hereditary trustee of the temple, filed a written statement stating that though he is a member of Kannamprath tarward the eldest male member of the tarward is one Kunhikrishanan Nambiar and he is the hereditary trustee of the temple and Krishnan Nambiar is to be made a party to the suit and he is not a necessary party to the suit. 3. Trial court framed the necessary issues. On the side of the appellants Exts.A1 to A5 and on the side of the respondents Ext.B1 to B9 and C1 and C2 were marked. No oral evidence was adduced by appellants or respondents. Learned Sub Judge on the evidence found that plaint schedule property is A.S.355/95-D 4 not a temple site as provided under section 3(1)(X) of Kerala Land Reforms Act and therefore not exempted from the provisions regarding tenancies under Kerala Land Reforms Act. But finding that appellant did not establish that the temple was a public temple before Ext.B4 lease, it was held that the bar created under section 29 of H.R&C.E. Act is not applicable. Holding that under Exts.B7 and B8 purchase certificates were obtained by appellant the suit was dismissed. It is challenged in this appeal by the plaintiffs. 4. Appellants contended that he was not given opportunity to produce the document to show that the first appellant is a public temple under the control of H.R.&C Board even prior to 1976 and the denial of opportunity has resulted in miscarriage of justice. It was contended that the first appellant is a public temple governed by H.R.&C.E. Act much prior to Et.B4 lease and hence respondents cannot claim right under the purchase certificates. Appellants filed CMP.3482 of 1995, under Rule 27 of Order XLI of Code of Civil Procedure to receive the documents produced along with that application as additional evidence contending that the documents are the certified copies A.S.355/95-D 5 obtained subsequent to the disposal of the suit and therefore they could not be produced earlier and they are necessary for proper adjudication of the case. Respondent filed an objection to the application contending that with due diligence the documents could have been produced before the trial court and therefore cannot be received as additional evidence. It was also contended that exercising the rights under the Right to Information Act, respondents have approached H.R.&C.E. Board to get information as to when the first appellant temple came under the H.R.& C.E. Act and the Board has replied that they are searching the necessary information and therefore the additional documents cannot be received. 5. Learned counsel appearing for the appellants and the respondents were heard. 6. The fact that the plaint schedule properties are the temple properties of Payingottayi Devaswam is not disputed. The fact that first appellant temple is a temple governed by the provisions of H.R.& C.E. Act is also not disputed. According to the appellants it is a public temple much prior to 1962. According to the respondents it became a public temple under A.S.355/95-D 6 H.R.& C.E. Act only in 1976. The suit is filed for recovery of possession of plaint schedule property contending that it is the temple property and no lease could be created in respect of the property and though respondents are claiming as lessees, they are not entitled to get fixity by tenure and therefore appellants are entitled to the recovery of possession on the strength of title. Respondents contended that their predecessor obtained the plaint schedule properties on lease under Ext.B4 from the then karanavan and at that time the temple was a private temple and the karanavan of tarward was competent to grant lease and lease is not prohibited under any law and they are entitled to fixity of tenure based on Ext.B4 lease. It is also contended that of Exts.B7 and B8 show that they have already purchased purchase certificates and therefore appellants are not entitled to get the decree sought for. 7. If the temple is a public temple governed by H.R.& C.E. Act before Ext.B4 lease and the plaint schedule property is a temple property under section 29 of H.R.& C.E. Act no lease could be created. Therefore in that case, based on that lease respondents cannot claim fixity of tenure. Therefore the crucial A.S.355/95-D 7 question is whether the temple was a private temple or public temple before Ext.B4 lease. Learned Sub Judge found this point against the appellant for the reason that no document was produced to establish that it was a public temple prior to 1962. The case of the appellants is that in spite of the prayer, sufficient opportunity was not granted. 8. Along with C.M.P.3482 of 1995 appellants produced list of Temples, Maths & Specific Endowments deriving an annual income below Rs.1,000/-, issued by Hindu Religious Endowment Board, Madras in 1940. As per the said document, item No.9 of the temples shown in the list of temples at Kurumbranad Taluk is Payangottai Paradevatha temple of Kottappalli village, which is the disputed plaint schedule temple. Therefore as per that document the temple is a public temple even during 1940, and the temple was governed originally under the Hindu Religious and Charitable Endowments Act, Madras and subsequently under H.R.&C.E. Act. The appellants have also produced along with the said document a letter to the Chairman from the Assistant Commissioner, H.R.&C Office, Kozhikode, stating that the first document is sent along with the letter. If A.S.355/95-D 8 item No.9 shown in the list of temples of Kurumbranad Taluk is the first appellant temple, necessarily it would be a public temple. Learned counsel appearing for the respondents submitted that without evidence the document cannot be received in evidence under Rule 27 of Order XLI of Code of Civil Procedure and if that document is to be received, opportunity is to be granted to the respondents to produce counter documents and also they are also to be permitted to adduce further evidence. 9. Appellants have produced a certificate dated 5.4.1995 issued by the Assistant Commissioner certifying that Payingottai temple is a public religious temple coming under the purview of H.R.&C.E. Act and as per proceedings dated 5.4.1995 plaintiffs were permitted to file an appeal against the judgment of the trial court. But these two documents are not necessary as the fact that the temple is now a public temple is not disputed and the permission granted to file an appeal is not relevant. 10. Even if it is taken that with due diligence the additional document could have been produced before the trial court and therefore under clause (aa) of sub rule 1 of Rule 27 of A.S.355/95-D 9 Order XLI of Code of Civil Procedure, the documents cannot be received as additional documents, the material question in the suit is whether the first appellant temple is a public temple governed by H.R.& C.E. Act before Ext.B4 lease or not. To decide it the document is definitely relevant and necessary to pronounce a satisfactory judgment. In such circumstances under clause (b) of sub rule 1 of Rule 27 of Order XLI the document is to be received as additional evidence. C.M.P.3482 of 1995 is therefore allowed and the additional document is received and marked as Exhibit-A6. 11. As Ext.A6 has been received as additional evidence and respondents are disputing the correctness of Ext.A6 and they are also contending that they have to be permitted to adduce further evidence, in the interest of justice the question is to be reconsidered by the trial court based on the additional evidence produced. As the suit is to be remanded to the trial court the parties are permitted to adduce further evidence, both the plaintiffs and defendants. Appeal is allowed. The decree and judgment passed by the Sub Judge in O.S. 7 of 1993 is set aside. O.S.7 of 1993 on the file A.S.355/95-D 10 of Sub Court, Vadakara is remanded to the Sub Court for fresh disposal. Parties are permitted to adduce further evidence, both documentary and oral. On the evidence trial court to decide whether the plaint schedule property is a temple property governed by H.R.& C.E. Act and if so, whether the first appellant temple was a public temple governed by H.R.& C.E. Act prior to Ext.B4 lease and if so, whether the lessee or his successors are entitled to fixity of tenure and if not, whether Exts.B7 and B8 are valid and binding on the plaintiffs and whether they are having subsisting title to claim recovery of possession. Parties are directed to appear before Sub Court on 25.5.2009. send back the records including Ext.A6 forthwith. M. SASIDHARAN NAMBIAR, JUDGE okb