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A.A. GOPALAKRISHNAN

COCHIN DEV ASWOM BOARD AND ORS.

JULY 19, 2007

[K.G. BALAKRISHNAN, CJ., R.V. RA VEENDRAN

AND DAL VEER BHANDARI, JJ.]

Code of Civil Procedure, 1908-0. 23 r, 3A-Land of religious institution-Complaint by devotee against employee of Dewaswom Board C and others-Alleging encroachment on the land-Direction by Supreme Court to the Board to take possession of the land, with liberty to the encroachers to file suit for declaration of their title-In suit by encroachers settlement of exchange of land in question with another land claimed to be owned by the employee-On the strength of ex-parte order of Tehsi/dar declaring him as D 'cultivating tenant', suit decreed in terms of compromise-Another land was throughout in possession of the temple having structures of idols-Writ petition challenging the compromise by a devotee, dismissed by High Court-On appeal, Held: Compromise decree is unsustainable-Though a compromise decree of a civil court which has attained finality cannot be interfered with-- But challenge to such decree cannot be rejected when fraud/collusion on the E part of statutory Board is made out-It is duty of the Court to protect the properties of religious and charital)/e institutions from wrongful claims or misappropriation-Trust and Charities.

The land in question belonged to a temple under the management of respondent no. 1-Devaswom Board. A third party filed a complaint alleging F that respondent Nos. 3 and 4 ha~ encroached upon the said land and were in illegal possession of the same. High Court, in a summary proceeding held that the land in question was part of the property of the temple and directed the respondent-Board to take possession thereof. In appeal, this Court confirmed the order of High Court. However, i~ gave liberty to respondent Nos. G 3 and 4 to establish their title in a regular suit •

Respondent Nos. 3 to 5 filed a suit against the Board seeking declaration of title in respect of the land in question. However, they entered into a compromise of exchange of the land in dispute with another piece of land No.

I H

/:: 1043 which was in the po~sion. ?f.the, teple and title to which was claimed by respondent No. 3. The suit was decreed in terms of the compromise.

The appellanta third partY challenged the compronjise in a writ petition, alleging the same to be collusiye as th~ land exchanged ~}.th the land in .

B question was not the land of res'pondent No. 3, but of the temple which was

.z:~ situated in front of the temple having three idols and had always been in possession oHhe'.femple. Writ pe'tition was dimissed by High Court.

In appeal to this'C::ourt, respondent Nos. 3 to S filed a copy of order of Tehsildar to establish their title on land No. 1043.

.... ·: 'Appell~t contnded that the very fact that the third .rspodent (an e.fiployeeorthe temple) has been shpwn to be cultivating tenant of the land in .front oft'h'e .temple' c; ontaining the stuctures of idols, in a suo motu

p; ceedirigs, demonstrated collusion and fraud. . .

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~. 'AlloWing the appeal~· the Court

:HELD: L The bar contained in Rule 3A of Order 23 CPC, will notcome in.the way of the High Court examining the validity of a compromise decre~,

when~11UegaOoits of fraud/collusion are m£de againsra statutory authority . which, ent.ered into such comprorii'ise. While, it .is true that decrees of civil E courts whichhaveattained finality should not be hlterfered lightly; challenge to such compromise decrees by an aggrieved devotee, who was not a patty to the suit;' cannot be rejected, where fraud/collusion on the part ofofficers of a statutory board is made out. Further, when the High Court had directed the Board to take possession of the land in question immediately from respondents 3 and 4 in a complaint by another devotee, it was improper for the Board to .

~- enter info asetfleilient with respondents No. 2 and J, givig up the right, title

• an<I in'terest in tile lad in question without the permission of.the court wti.ich.

p!rssed'suchrde~.~-Viewed from any angle, thecompromise.deeee cannot b~ sustained and is liable to be set'aSide. {Para llj ,17:C, D, Ef . . .

7,..·r..,~ '"• .~__..~" G ·, ·. ·. 2. The properties of deities, temples and Devaswom Boards, require to be .protected and safeguarded .by their Trustees/Archaks/Sebaits/employees:

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Instances are many where persons entrusted with the duty of managing aiad ~1 safeguarding the properties of temples, deities and Devas:wom Boards. have usurped anti misapproptiated such prope'rties by setti11g up false claims of'

ownership, or tenaticy, or iidverse possession. This is possible n!Y with the I:J passive o~'active conusiOn of the' concerned authorities. sucit acts of 'fence~.

j. r.

eating the crops' should be dealt with sternly. The Government, members or A .. trustees of Boards/Trusts, and devotees should be vigilant to prevent 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. (Para 101 (6-F, G, H; 7-AJ

3. When respondent Nos. 3 to 5 claimed ()Wnership of Survey No. 1043, B which was the front portion of the temple premises in the possession of the temple (in the proposal for settlement) the Devaswom Board, instead of investigating and verifying as to how they could claim ownership over temple . property, strangely agreed for a settlement under which the temple was to get

Sy. No. 1043 (which was a temple land already in its possession), in exchange C for giving away another temple land (Land in question) to respondent Nos. 3 to 5. It is significant that the Board resolution agreeing for the settlement proposal clearly records that Sy.No.1043 is already in the possession of the temple. (Para 9) (6-D; E, Fl

4. The first respondent Board is directed to take possession of the land D in question as already directed by this Court and High Court. However, it is open to respondents 3 to 5 to pursue the suit tiled by them, if they so desire,

in which event, the Sub-Court, shall dispose it in accordance with law. The Collector is directed to hold an enquiry as to the circumstances in which the order was passed by Tahsildar and take consequential remedial action. The first respondent-Board is at liberty to take action in accordance with law in E regard to Survey No. 1043. (Para 12) (7-G; 8-A, BJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3135 of2007.

From the Judgment & Final Order dated 18~10.2005 of the High Court of F Kerala at Emakulam in O.P. No. 19728/200l(S).

N. Rajen Shonker (for Mis. T.T.K Deepak & Co.,) for the Appellant.

T.L.V. Iyer, K. Rajeev, Romy Chacko and P.V. Dinesh for the Respondents.

The Judgment of the Court was delivered by

K.G. BALAKRISHNAN, CJ. l. Leave granted. Application for exemption from filing O.T. is granted.

i. An extent of 21 cents of land in Survey No. I 042/2 of Mulanthuruthy

A village, Kanayannur Taluk, Emakulam District, belonged to Karikkode Sastha

and Maha Vislirtu temple under the management of Cochin Devaswom Board ('Board' for short}.

3: One -LK. Asokan filed a complaint before the High Court of Kerala alleging that respondents 3 and 4 had encroached upon the said land, and B were in illegal possession. The complaint was registered as COB No. 3/1996.

Th~ High Court by order dated 12.6.1997 held that the said Sy No. I 04212 (21 cents) was part of the property of arikkode Sastha and Vishnu Temple and gave a direction to the B?ard to take possession of the said land it.hut delay. Respondents 3 and 4 challenged the said order before this Court in SLP C (C) No.12985/1997 contending that they had acquired titl~ over the said land by their long possession. This Court disposed of the said petition by the following order dated 30.3.1998:

, ,,•·, "In the facts and circumstances of this case, having heard learned counsel for the parties, we do not think it is a fit case for our interference D

against the iwpugned direction of the High Court. The property in question should be delivered to the Devasthanam, if has not been de.livered in the meantime. But since the High Court has given a

., '< declaration in respect ofthe property in a summary proceedings, it

,, ... would be open for the petitioners to establish its title in a regularly instituted civil suit, if so advised and in the event of such a suit is filed, the finding the High Court will not be a bar for the civil court."

In view of the said order of this Court, the High Court closed the complaint (COB No.3/1996) by order dated 9.9.1998, with a direction to the Devaswom Board to' take possession f'the said land, by taking police help, if necessary.

4. Respondents 3 to 5 thereafter filed O.S.No.399/1998 on the file of the Sub-Court, Emakulam, against the Devaswom Board seeking declaration of title in respect of Sy. No.1042/2 and consequential injunction. During the peridency of the suit, they submitted a representation dated 6.7.2000 to the Board requesting for a settlement. They proposed an exchange of Sy. No.

G l 042/2 (21 cents of land which belonged to Karikkode Devaswom) with Sy. No.

1043 (30 cents of land which was in the possession of Karikkode Devaswom, but title to which was claimed by respondent No. 3).

5. Without even waiting for a reply for the letter proposing settlement, respondents 3 to 5 filed a writ petition (OP No.20251/2000) before the High H Court and secured an ex parte order dated 27.7.2000 directing the Board to

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consider their representation and pass an order thereon. In view of the said A direction, the Board considered the representation and passed a resolution dated 29.8.2000 agreeing to the proposal and entered into a compromise with respondents 3 to 5 on 30.8.2000. The said compromise petition recorded a settlement that the parties will enter into a Deed of Exchange, by which plaintiffs (respondents 3 to 5 herein) would surrender their title and interest B in respect of 30 cents in Survey No. I 043 (Resurvey No.175/5) of Mulanthuruty village, Kanayannur Taluk, Emakulam District (which was the subject matter of the Purchase Certificate No.581/76 and 586/76 dated 21.2.1976 issued by the Deputy Collector (LT) No.IV, Emakulam) where the three idols/vigrahas Qf Upadevanmar (Sri Malikappuram, Sri Malanada and another) were situated ii; t favour of the defendant (Board) and in exchange the Defendant (Board) C would surrender the right, title and interest in respect of Sy. No. I 042/2 (measuring 21 cents) in favour of the plaintiffs. The Sub-court, Ernakularn decreed O.S. No.399/1998 on 18.9.2000 in terms of the said compromise.

6. The appellant herein challenged the said compromise in writ petition (O.P.No.19728/2001) before the High Court alleging that the settlement of the D suit was collusive and the land which was agreed to be transferred by respondent Nos.3 to 5 by way of exchange in favour of the Devaswom Board was the property of the Karikkode temple itself; and that to defeat the directions by this Court and the High Court, requiring surrender of possession of Sy. No. I 042/2, the officers of Devaswom Board had colluded with respondent E Nos.3 to 5 and permitted them to retain Sy. No.1042/2 illegally. The writ petition was dismissed by holding that the Devaswom Board got possession of 30 cents of land in exchange for 21 cents in pursuance of a settlement between the parties, and therefore there was no case for interference. The said judgment of the High Court is under challenge in this appeal.

7. We have heard learned counsel for the appellant and learned counsel for the respondents. We find considerable force in the contention of the appellant that the Devaswom Board really got nothing out of the settlement and it gave to respondents 3 to 5 a property (Sy. No.1042/2) which belonged

to the Karikkode Temple in regard to which this Court and High Court had specifically directed the Board to take immediate possession. Survey No. I 042/ G 2 adjoins the temple. Survey No. I 043, it is seen, is the land in front of the temple and is a part of the temple where there are three structures housing idols/vigrahas of Upadevadas. The fact that the said Sy.No.1043 had always

been in the possession and enjoyment of the temple, is not in dispute. The fact that Sy. No. 1043 was never under cultivation of respondents 3 to 5 at H

A any time, is also not. seriously contested.

8. During the hearing the learnedlcounsel for respondents 3 to 5 made available a copy of an order dated 2 I .2. I 976 passed by the Special Tehsildar, LR No.II, Ernakulam)n SMP 3458175 to establish the alleged title to Sy.

No. I 043. After perusfog the said order, learned counsel for the appellant B pointed out that the said order dis not refer to Sy.No. I 043. He submitted that even if it related to Sy. No. I 043, it was evident that the third respondent, an employee of the Board had apparently in collusion with.some revenue officials, got. a suo motu proceedings initiated under section 72 of the Kerala Land Reforms Act, 1963 showing third respondent as a 'cultivating tenant' under C Karikkode Devaswom, and secured an ex parte order dated 21.2.1976, sanctioning the assignment of the land under sub-section (5} of section 72F of the said Act. The learned counsel for appellant further submitted that the very fact that the third respondent, an employee of the temple, has been 4• shown to be the 'culti, wting tenant' of the land in front of the temple, containing the structures where Upadevadas are installed, in a suo moto D proceedings, clearly demonstrated collusion/fraud in securing the order dated

21.2.1976. Be that as it may. .,,,

9. What is surprising is that when respondents 3 to 5 claimed ownership of Survey No.I043, which was the front portion of the temple premises in the possession of the temple (in the proposal for settlement dated 6. 7 .2000), the Devaswom Board, instead of investigating and verifying as to how they could claim ownership over temple property, strangely agreed for a settlement under which the temple was to get Sy.No. I 043 (which was a temple land already in its possession), in exchange for giving away another temple land (Sy.No. I 042/

2) to respondents 3 to 5. It is significant that the Board resolution dated.

F 29.8.2000 agreeing for the settlement proposal clearly records that Sy.No.I 043 is already in the possession of the temple.

I 0. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their Trustees/Archaks/ Sebaits/employees.

Instances are many where persons entrusted with the duty of managing and G 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 of the concerned authorities. Such acts of 'fences eating the crops' should be dealt with sternly. The Government, members or H trustees of Boards/Trusts, and devotees should be vigilant to prevent any

... ...

such usurpation or encroachment. It is also the duty of courts to protect and. A safeguard the propertie~ dfreiigious and charitable institutions from wrongful claims or misappropriation. ··

11. Learned counsel for respondents .3 and 4 submitted that the settlement in the suit (OS No.399/1998) was validly arrived at between them (Plaintiffs) and the Devaswo~ Board (defendant), that the Devaswom Board B had considered the proposal after taking legal advice and had duly passed a resolution to settle the sit. It is furthersi.Ibmitte_d that a decree having been made in terms of the compromise an'd such decree ntving attained finality, it cannot be questioned, interfered ot set aside at. th

1 e. instance of a third party . in a writ proceeding. Order 23 Rule 3 of CPt .deals_ with compromise of suits. C Rule 3A provides that no suit shall lie to'set aside a decree on the ground that the compromise on which:1he. decree is _basea w.as not lawful. We are of the considered view that the bar contained in Rule 3A will not come in the way of the High Court examining the validity of a compromise decree, when allegations of fraud/collusion are ri; ade against a statutory authority which entered into such compromise. While, it is true that decrees of civil courts D which have attained finality should not be interfered lightly, challenge to such compromise decrees by an aggrieved devotee, who was not a party to the suit, cannot be rejected, where fraud/collusion on the part of officers of a statutory board is made out .. Further, when the High Court by order dated 9.9.1998 had directed the Board to taJce possession of Sy. No. I 042/2 immediately E from respondents 3 and 4 in CDB No.3/1996, in a complaint by another devotee, it was improper for the Board to enter into a settlement with respondents No.2 and 3, giving up the right, title and interest in Sy. No.1042/ 2, without the permission of the court which passed such order. Viewed from any angle, the compromise decree cannot be sustained and is liable to be set aside.

12. In view of the above, we allow this appeal as follows :

(i) The compromise dated 30.8.2000 and compromise decree dated 18.9 .2000 in O.S. No.399/1998 on the file of the Sub-court, Emakulam, are set aside.

(ii) The first respondent Board is directed to take possession of Sy.

No. I 042/2 as already directed by this Court and High Court.

(iii) It is open to respondents 3 to 5 to pursue OS No.399 of 1998, if they so desire, in which event, the Sub-Court, Emakulam, shall

A dispose it in accordance with law.

K.~T.

(iv) The Collector, Emakulam is directed to hold an enquiry as to the circumstances in which the order dated 21.2.1976 in SMP No.3458 of 1975 was passed on the file of the Special Tahsildar, LR No.II, Emakulam, and take consequential remedial action.

(v) The first respondent-Board is at liberty to take action in accordance with law in regard to Survey No. I 043.

(vi) PC1rties to bear their respective costs.

Appeal allowed.