IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 OP(C).No. 4044 of 2011(O) -------------------------------------- IA.4648/2011 IN OS.350/2010 OF SUB COURT, KOLLAM. .................... PETITIONERS: -------------------- 1. N.S.S. KARAYOGAM NO.895, ULIYACOIL, KOLLAM, KOLLAM EAST VILLAGE, REPRESENTED BY ITS SECRETARY, R.CHANDRA BABU, KADAPPAL VEEDU, ULIYACOIL NAGAR, ULIYACOIL. P.O., 691 019. 2. THE SECRETARY, N.S.S. KARAYOGAM NO.895, ULIYACOIL, KOLLAM, KOLLAM EAST VILLAGE. 3. THE PRESIDENT, N.S.S. KARAYOGAM NO.895, ULIYACOIL, KOLLAM, KOLLAM EAST VILLAGE. 4. G. KUNJUKRISHNA PILLAI, EXECUTIVE COMMITTEE, MEMBER AND DEVASWOM MANAGER OF N.S.S. KARAYOGAM NO.895, ULIYACOIL.P.O., KOLLAM EAST VILLAGE, KALIYILIL KIZHAKKATHIL, ULIYACOIL. P.O., KOLLAM EAST VILLAGE. BY SRI.P.RAVINDRAN, SENIOR ADVOCATE, ADV. SRI.M.R.SABU, SMT.APARNA RAJAN. RESPONDENT(S): ------------------------- 1. SREE DURGA BHAGAVATHY, ULIYACOIL SREE DURGA DEVI TEMPLE ULIYACOIL, KOLLAM, KOLLAM EAST VILLAGE, REPRESENTED BY DR.S. MOHANAN, S/O.GOPALA PILLAI, SAROVAR, THEVALLY. P.O., OLAYIL, KOLLAM-691 019. OP(C).No. 4044 of 2011(O) 2. SREE DURGA BHAGAVATHY TEMPLE DEVASWOM PRIVATE TRUST, ULIYACOIL, REPRESENTED BY ITS SECRETARY DR.S. MOHANAN, S/O.GOPALA PILLAI, SAROVAR, THEVALLY. P.O., OLAYIL, KOLLAM-691 019. 3. DR.S. MOHANAN, S/O.GOPALA PILLAI, SAROVAR, THEVALLY. P.O., OLAYIL, KOLLAM-691 019. R3 BY ADV. SRI.LEO GEORGE, SRI.K.N.SASIDHARAN NAIR. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 4044 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1- TRUE COPY OF THE PLAINT IN O.S.NO.350/10 DATED 30.04.10 OF THE SUB COURT, KOLLAM. EXHIBIT P2- TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S.NO.350/10 OF THE SUB COURT, KOLLAM DATED 22.07.10. EXHIBIT P3- TRUE COPY OF THE PETITION IN O.S.NO.350/10 OF THE SUB COURT, KOLLAM DATED 03.12.10. EXHIBIT P4- TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A.NO.4964/10 DATED 09.12.10. EXHIBIT P5- TRUE COPY OF THE AFFIDAVIT IN O.S.NO.350/10 OF THE SUB COURT, KOLLAM. EXHIBIT P6- TRUE COPY OF THE ORDER IN I.A.NO.4964/10 DATED 09.02.10 IN O.S.NO.350/10 OF THE SUB COURT, KOLLAM. EXHIBIT P7- TRUE COPY OF THE APPLICATION IN O.S.NO.350/10 OF THE SUB COURT, KOLLAM DATED 09.11.11. EXHIBIT P8- TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN O.S.NO.350/10 DATED 16.11.11. EXHIBIT P9- TRUE COPY OF THE I.A.NO.4748/11 IN O.S.NO.350/10 IN SUB COURT, KOLLAM. EXHIBIT P10- TRUE COPY OF THE DECISION TAKEN BY THE COMMITTEE ON 04.11.11. EXHIBIT P11- TRUE COPY OF THE REQUEST DATED 14.10.11. EXHIBIT P12- TRUE COPY OF THE ORDER IN I.A.NO.4648/11 IN O.S.350/10. RESPONDENT'S EXHIBITS:- EXT.R3A COPY OF THE ORDER IN I.A. NO.492/2011 IN O.S. NO.350/2010 DATED 18/02/2011. EXT.R3B SERIES COPIES OF THE RECEIPTS ISSUED BY THE ADMINISTRATIVE COMMITTEE OF THE TEMPLE. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.4044 of 2011 -------------------------------------- Dated this the 15th day of December, 2011. JUDGMENT Defendants 1 to 3 and 13 in O.S.No.350 of 2010 of the court of learned Principal Sub Judge, Kollam challenge Ext.P12, order whereby the learned Sub Judge has directed that the 3rd respondent be allowed to conduct mandalam chirappu on any of the 41 days of mandalam season for the year, 2011 on payment of the required fee. 2. Respondents filed the suit in respect of a temple claiming that it belonged to their four tharwads and while so, on 26.01.1964 as per a document administration of the temple was entrusted to the 1st petitioner - NSS Karayogam. Respondents sought a declaration that the temple and its property belong to the four tharwads and for other reliefs. Petitioners resisted the suit on appropriate grounds. While so, respondents filed I.A.No.4648 of 2011 to permit the 3rd respondent conduct chirappu on any one day during mandalam season of 2011. The 3rd respondent claimed that for the last 20 years he was performing that offering during the mandalam season and that even in the year, 2010, has performed chirappu. But, when he approached petitioners during 2011 to permit him conduct chirappu during the mandalam season of 2011, he was not allowed to pay the fee for the said purpose for the reason that he filed the suit against petitioners. Petitioners objected Ext.P6, application by Ext.P8, counter. OP(C)No.4044/2011 2 They contended, among other things that the right to conduct chirappu during the mandalam season (41 days) of 2011 has already been given to 41 families who are members of the 1st petitioner, Karayogam. It is also their case that the said privilege is being given not to the members of the four tharwads referred to by the respondents but to all the families of the Karayogam. Learned Sub Judge was not inclined to accept the contention of petitioners and passed Ext.P12, order which is under challenge. 3. Learned counsel for petitioner argued that it is the admitted fact that the 3rd respondent has not paid the fee for permission to perform chirappu during the mandalam season of 2011. According to the learned counsel, there is no practice of permitting any individual member to conduct chirappu, that privilege is being given to 41 families of the Karayogam. It is also contended by the learned counsel that so far as mandalam season of 2011 is concerned, the 1st petitioner has in its meeting held on 04.11.2011 decided to give the privilege to 41 families. Learned counsel has invited my attention to Ext.P10, minutes. It is pointed out that the family of 3rd respondent also is allowed the privilege to conduct chirappu on a day during the 41 days. 4. Learned Senior Advocate appearing for respondents contended that petitioners have no right or interest in the temple and that what is given to them is only the power to administer and manage it. It is pointed out that for the last 20 years the 3rd respondent has been conducting chirappu. It is also pointed out that conduct of petitioners is vindictive in that 3rd respondent was denied the privilege only because he has filed the suit along with others. OP(C)No.4044/2011 3 Learned counsel has drawn my attention to Ext.R3(b), receipts issued by the 1st respondent for receipt of money for permission granted to the 3rd respondent to conduct chirappu during the period prior to 2011. Learned counsel has also invited my attention to Ext.R3(a) to show the conduct of petitioners. It is argued that Ext.P10, minutes would not show that it was on a request made by the 41 families that they were granted permission or that they have remitted the fee. In that view of the matter it is contended that there is no reason to interfere with the impugned order. 5. I have been taken through Ext.R3(a)), order dated 18.02.2011 on I.A.No.492 of 2011. That was an application preferred by the respondents to permit them take 'thiruvabharanam' maintained in one of the four tharwads referred to in the plaint in procession as was the usual practice and adorn the deity with it. Rejecting the objection raised by petitioners, learned Sub Judge allowed that application. 6. Presently I am concerned with the question whether during the mandalam season of 2011 permission could be granted to the 3rd respondent personally to conduct chirappu. Ext.P6, order is brought to my notice. That order was passed by the learned Sub Judge on 08.12.2010 concerning the claim made by the 3rd respondent for permission to conduct chirappu. That was not a decision on merit but, it was almost an order on consent since when it was pointed out that there was a vacancy during the mandalam season of 2010 and the 3rd respondent could be accommodated on the day which fell vacant, 3rd respondent was allowed to conduct chirappu on that day Hence Ext.P6, order cannot be taken as a precedent. OP(C)No.4044/2011 4 7. It is seen from Ext.P10, minutes that for all the 41 days of mandalam season of 2011, 41 families have been given permission to conduct chirappu. There is no reason why, I should reject Ext.P10 at this stage. It is to be noted that though not as one of the four tharwads to which according to the respondents the temple belonged, the tharwad of the 3rd respondent also is given the privilege to conduct chirappu on a particular day during the mandalam season of 2011. So it is not as if the 3rd respondent has altogether been ignored. 8. One thing prima facie appears from the materials on record, that it was necessary for the 3rd respondent to pay required fee and get permission from the 1st petitioner to conduct chirappu. So far as 2011 is concerned, may be because the amount was not received by petitioners as alleged by the respondents or, may be because 3rd respondent has no individual right to conduct chirappu as contended by the petitioners, fact remained that no amount was received from the 3rd respondent to permit him conduct chirappu during the mandalam season of 2011. In that situation and also since Ext.P10, minutes shows that all the 41 days have already been allotted to 41 families including the family of 3rd respondent, I am not inclined to think that upsetting that arrangement at this stage, the 3rd respondent should be given permission to conduct chirappu. In that view of the matter I am inclined to interfere with Ext.P12, order. 9. But I make it clear that I have not decided upon the right claimed by the parties over the temple or the right claimed by the respondents to perform chirappu during the mandalam season. I also make it clear that this order will stand confined to the claim made by the 3rd respondent so far as the mandalam OP(C)No.4044/2011 5 season of 2011 is concerned in the peculiar situation stated above and that if during the coming years any request is made by the 3rd respondent on time, that request shall be considered by petitioners and if the claim is disallowed by petitioners, by the court below on the merit of the claim. Resultantly this Original Petition is allowed and with the observations made above, Ext.P12, order is set aside. I hasten to add that notwithstanding the claim and counter claim made by parties, if any vacancy arises in the mandalam season of 2011 on account of any family referred to in Ext.P10, minutes not conducting chirappu, petitioners shall allot that day to the 3rd respondent for conducting chirappu on payment of the required fee without prejudice to the contentions both parties have raised in the matter. THOMAS P.JOSEPH, Judge. cks