Payappar Sree Dharmasastha Temple ... vs A.K. Joseph & Ors

3. In T.D.B. No. 38 of 1996, the Travancore Devaswom Board (hereinafter "the Board") alleged that the property, which was the plaint schedule property in O.S. No. 37 of 1998, belong to Travancore Devaswom Board and that said land had been illegally encroached upon and was in occupation of the trespassers. The aforesaid suit was filed for removing the trespassers.

4. Earlier, the Travancore Devaswom Board had filed a suit for evicting the trespassers (the respondents), which was registered as O.S. No. 37 of 1998. The said suit was contested by the respondents. However, the aforesaid suit was finally dismissed.

6. Being aggrieved by the said Judgment and Order a Special Leave Petition No. 15250 of 2005 (CC No. 6642 of 2005) was filed before this Court by the Board, which was, however, dismissed on the ground of inordinate delay. The present appeal is filed by the Temple Advisory Committee against the aforesaid Judgment of the High Court contending, inter alia, that the Board is not interested in protecting its property and therefore the aforesaid SLP was filed casually after expiry of the limitation period thereby allowing a large part of immovable property which belong to the temple to go to the third party which would adversely affect the very functioning of the temple. This Court issued notice in the SLP as also on the application seeking for condonation of delay and also on the application for interim relief. The matter was consequently listed before us for final hearing upon which we heard the learned counsel appearing for the parties. 3

8. In the year 1998, the Board filed a suit against Respondent No. 1 in the Munsiff Court for eviction of Respondent No. 1 from the aforesaid suit property. However, the aforesaid suit was dismissed by the Court on the ground that the said suit was not maintainable in view of the decree passed in the earlier suit, which was filed by Respondent No. 1. An appeal was preferred by the Board from the aforesaid Judgment contending inter-alia that the learned Munsiff failed to consider the fraud and collusion with regard to the earlier suit filed in the year 1958 by Respondent No. 1 and that decree in the said suit was obtained behind the back of the Board and that the Board was completely unaware both about filing and disposal of the earlier suit. It was also contended that the learned Munsiff failed to appreciate the purport of Section 27 of the Travancore Cochin Hindu Religious Institutions Act, 1950 (hereinafter referred to as "1950 Act"). There was in fact a complaint preferred by the Secretary of the Renovation Committee of the appellant temple alleging trespass by Respondent No. 1, invoking the supervisory powers of the High Court under the 1950 Act. The same was numbered as TDB No. 38 of 1996. Since there were two proceedings pending, namely, TDB No. 38 of 1996 before the High Court seeking for exercise of supervisory powers and the appeal pending before the appellate court filed by the Board against the Judgment of the trial court dismissing the suit, the said appeal was 5 transferred to the High Court and same was ordered to be heard along with TDB No. 38 of 1996. The aforesaid cases were taken up for hearing by the Division Bench of the High Court. However, the aforesaid appeal as also the TDB No. 38 of 1996 were dismissed by the Division Bench of the High Court by passing a common order, which is the subject matter of the present appeal.

9. The record placed before us disclose that the State Government on 21.06.1929 passed an order transferring 1 acre 85 cents of land to Thomman Kuruvilla. The said order was also placed on record as Exhibit D-4. Subsequently, however, the State Government passed a second order dated 11.05.1931 rectifying the position by setting aside the previous order dated 21.06.1929 transferring 1 acre 85 cents of land to Thomman Kuruvilla, which was Exhibit D-5. The second order dated 11.05.1931 passed by the State Government was however challenged by the plaintiff (Thomman Kuruvilla) in O.S. No. 53 of 1998 making only the State Government a party and without making the temple authorities, namely, Payappar Sree Dharmasastha Temple a party to the said suit. In the said suit the court granted an injunction by which the State Government was prevented from dispossessing predecessor of Respondent No. 1, namely, the plaintiff. The court of Munsiff subsequently decreed the suit in favour of plaintiff i.e. the predecessor of Respondent No. 1 on the ground that the Divan, who 6 passed order dated 11.05.1931, namely, Exhibit D-5, had no jurisdiction to pass such an order. The High Court which exercised a supervisory power under the 1950 Act directed that a report be given by the Tahsildar, Meenachil Taluk, regarding the area and other details of the property which was being held by Respondent No. 1. On 18.09.1997, the Tahsildar, Meenachil filed a detailed report with regard to the property before the Kerala High Court. On 24.10.1997, the High Court passed an order directing the State Government to evict the illegal occupants in the property. On 13.11.1997, the property was handed over the Board after evicting the Respondent No. 1, Joseph and other trespassers and after such eviction the Assistant Devaswom Commissioner has been in possession of the property. On 21.11.1997, an order was passed by the Kerala High Court referring to the memo filed by the government pleader to the effect that the trespassers over the property in Survey No. 383/3 of Block 21 of Lalom village have been evicted and it has been restored to Payappar Sree Dharmasastha Temple on 13.11.1997 and that the Board will carry out the necessary renovation work in the temple without delay. In the meantime, a suit was filed by Respondent No. 1 as stated herein before the Court of Munsiff, which was registered as Suit No. 37 of 1998.

12. The said order, however, came to be superceded by a subsequent order dated 11.05.1931. In the meantime, one Varkey Varkey purchased the said land from the aforesaid Augusthy Mathai. The predecessor of Respondent No. 1, namely, Thomman Kuruvilla, purchased the aforesaid property from Varkey Varkey. It is alleged that Thomman Kuruvilla, the father of Respondent No. 1, was in continuous occupation and possession of the land as if he was the owner. It is only in 1957 that the State Government initiated proceedings under the Land Conservancy Act, as LC 65 and 66 of 1957 to evict Thomman Kuruvilla from the property. The Board never came forward with any claim at any point of time, till 1998 when they filed O.S. No. 37 of 1998. Since 9 it was the State who initiated eviction proceedings in LC 65 and 66 of 1957 that Thomman Kuruvilla, father of Respondent No. 1 herein, filed the O.S. No. 53 of 1958, before the Additional Munsiff Court, Meenachil against the action of the State, seeking a declaration of his title over the aforementioned 1.85 acres of property and a perpetual injunction. It was also contended that failure to implead the Board in that suit was under such circumstances, as the State alone was projected as the owner and believed to be the owner. The suit - O.S. 53 of 1958 filed by the predecessor of Respondent No. 1 was decreed on 30.10.1959 holding that the Divan had no power to cancel the assignment. It was also alleged that Thiruvithamkur Devaswom is a statutory body which came into being only by Act of 1950 and before that the Government and Devaswom was one and the same and there was no separate existence, and therefore, whatever order was passed by the Government prior to 1950 regarding the land in question was also binding upon the Board. It was also contended that Section 27 of the 1950 Act does not nullify any assignment by the Government before the Devaswom came into existence.

17. At this stage, we are required to deal with and also to answer the contentions raised by the counsel appearing for Respondent No. 1 that the present appeal itself is not maintainable as the earlier SLP filed by the Board was dismissed on the ground of limitation and the body created by the Board cannot maintain this appeal. It is indeed true that the Board had filed Special Leave Petition No. 15250 of 2005 (CC No. 6642 of 2005) but the said SLP was dismissed on the ground of limitation as the said SLP was filed by the Board beyond the period of limitation. The appellant herein is a legal entity in view of the fact that it was constituted by the Board as per the byelaws issued by the Board. While filing the present appeal, the appellant has stated that its interest in filing this appeal is only to protect the Board properties from the encroachers and to see that the lands belonging to temples and religious worships are not tampered with and also to give effective implementation to the provisions of the Travancore Cochin Hindu Religious Institution Act, 1950, interest and purpose of which is to protect Devaswom properties. The contention of Respondent No. 1 that the appellant has no locus standi to file the present petition also cannot be raised and canvass at this stage in view of the decision of the Supreme Court in Gurpreet Singh Bhullar vs. Union of India (2006) 3 SCC 758, wherein it was held that:

20. In view of the aforesaid settled legal position and also in view of the fact that permission to file special leave petition was granted by this Court, if we find that the order of the High Court cannot be maintained and is required to be set aside, we would not hesitate to do so because of the locus of the appellant to file the present appeal in this Court. The High Court had passed the impugned order only on the basis of the fact that earlier decree would be binding on the appellant as also the Board and also on interpretation given to Section 27 of the Travancore Cochin Hindu Religious Institution Act, 1950. We have already held and recorded a finding that both the aforesaid views taken by the High Court are incorrect and required to be re-considered by the High Court.

22. Therefore, we set aside the impugned Judgment and Order passed by the High Court and remit back the matter to the High Court for fresh consideration of all the aspects, particularly, all the evidence that exist on the record. Since the matter is old, the High Court is requested to dispose of the proceedings as expeditiously as possible. The impugned Judgment and order of the High Court is set aside. Accordingly, the appeal is allowed to the aforesaid extent.

..............................................J. (S.B. Sinha) ...............................................J. (Dr. Mukundakam Sharma) New Delhi, July 7, 2009 17