BALAKRISHNAN NAIR Vs. PUNNAPALA DEVASWOM TRUSTEE BOARD

JUDGEMENT

(1.) DEFENDANTS in O.S.541/1992 on the file of Munsiff Court, Manjeri are the appellants. Respondent is the plaintiff. Suit was instituted for recovery of possession of the plaint schedule property. Plaint schedule property is 7 1/8 cents, which is shown as in R.S. No.429/2 of Punnapala Village of Ernad Taluk. Plaint schedule property admittedly originally belonged to the respondent Punnapala Devaswom temple. It is also admitted that C.T.Madhavan Namboothiri was one of the trustees (Ooralan) of the temple. The plaint schedule property was admittedly entrusted to Easwara Wariar for residing therein and to perform the kazhakam of the temple for a period of one year, without any liability to pay rent/pattom. Easwara Wariar constructed a house and was residing therein and was performing the kazhakam. Later Easwara Wariar along with his wife and children executed Ext.B2 on 25.5.1957 whereunder he transferred the rights in favour of C.T. Madhavan Namboothiri and left the property. C.T. Madhavan Namboothiri later under Ext.B3 assignment deed dated 11.2.1991 transferred the property in favour of Balakrishnan Nair. Later Balakrishnan Nair under Ext.B4 assignment deed transferred the right in favour of Punnappala Siva Kshethra Samrakshana Samithi. Proceedings were initiated by the Devaswom Board before the Commissioner of HR and CE challenging Ext.B3 contending that Madhavan Namboothiri had no right to transfer the Devaswom property as has been done under Ext.B3. In the presence of the assignee under Ext.B2, as well as the office bearers of the Siva Kshethra Samrakshana Samithi, Ext.A1 order was passed on 16.3.1992 declaring that the transfer effected was in violation of Section 29 of the HR & CE Act and directing to recover possession of the property. O.S.541/1992 was instituted thereafter seeking recovery of possession based on title contending that the property belongs to the temple and Madhavan Namboothiri had no right to transfer the property under Ext.B3 to Balakrishnan Nair and appellants have no title to the property. Appellants resisted the suit contending that the identity of the plaint schedule property is not correct, evidently because according to them the survey number is not for R.S.429/3. It was also contended that Madhavan Namboothiri had purchased the right under Ext.B2 and he is competent to transfer the property as has been done under Ext.B3 and hence the temple has no right to recover possession of the property. Learned Munsiff on the evidence granted a decree for recovery of possession holding that the plaint schedule property belongs to the temple and under Ext.B2 Madhavan Namboothiri as the Ooralan obtained the rights of Easwara Wariar and that right cannot be transferred in favour of Balakrishnan Nair. Appellants challenged the judgment before District Court, Manjeri in A.S.69/1997.

(2.) LEARNED District Judge, on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.

(3.) THOUGH the identity of the plaint schedule property was challenged before the trial court, it was only due to the survey number shown as 429/2 as according to appellants, it should be R.S.No.429/3. But when DW3 was examined on behalf of appellants, it has been admitted by DW1 that except the survey number shown in Exts.B2 and B3, plaint schedule property is in respect of the very same property and there is no dispute with regard to the identity as such. The only dispute is whether the right obtained under Ext.B2 is by C.T.Madhavan Namboothiri in his individual capacity or for and on behalf of the temple. The argument of the learned counsel is that when Ext.B2 does not give any indication to show that the right transferred thereunder was in favour of the temple and instead show that it was transferred in favour of Madhavan Namboothiri for consideration and when Madhavan Namboothiri, later under Ext.B3, transferred his right in favour of Balakrishnan Nair asserting his independent right, finding of the courts below is not correct.