THRESSIAMMA Vs. CHARLES MANI

JUDGEMENT

(1.) SECOND plaintiff and legal heirs of deceased first plaintiff in O.S.955/1995 on the file of II Additional Munsiff Court, Thiruvananthapuram are the appellants. First respondent is the defendant. Appellants instituted the suit seeking a decree for declaration that Ext.A1 decree in O.S.562/1973 on thefileof MunsiffCourt, Thiruvananthapuram is null and void and is not valid and binding on the appellants and also declare that appellants are in possession of plaint A and B schedule properties and a permanent prohibitory injunction restraining respondent from trespassing into the plaint A and B schedule properties. Appellants contended that plaint A schedule property was purchased by the first appellant on 6.1.1973 under Ext.A2 and plaint B schedule property was purchased by the second appellant under Ext.A3 sale deed dated 28.4.1973 from the daughter of the second appellant andrespondent is the son-in-law of the secondappellant. Appellant and respondent are members of religious community known as South India Apostolic Church of God.Respondent claimed to be the Secretary of the said religious community and institutedO.S.562/1973 before Munsiff's Court, Thiruvananthapuram seeking a decree for declaration of right and possession over plaint A and B schedule properties alleging that the property belongs to the Church.The suit was decreed by the trial court finding that respondent is the General Secretary of South India Apostolic Church of God. Another suit was filed by Paster C. Sundaram, as President against the respondent and some others for declaration that respondent is not entitled to represent the Church from 1971 onwards and as he was excommunicated. O.S.318/1980, the said suit was decreed.As per the decree respondent is not entitled to represent the Church from 3.7.1971 onwards and therefore Ext.A1 decree is vitiated by fraud, misrepresentation and mistake of fact and therefore appellants are entitled to a decree for declaration as sought for.It was also contended that respondent had filed O.A.126/1973 before the Land Tribunal for purchase of jenm right and the Land Tribunal, Thiruvananthapuram by Ext.A4 order dismissed that application holding that respondent is not in possession of the property and eventhough respondent filed an appeal against the said order it was dismissed and based on Ext.A1 decree respondent attempted to trespass into the property and he has no right to do so and therefore he is to berestrained by a permanent prohibitory injunction. Respondent resisted the suit contending that description of the plaint schedule property is not correct and five cents of property in survey No.1342 of Kudapanakunnu Village belongs to South India Apostolic Church of God and from 1962 onwards there is a prayer hall in the said property and second appellant was the president of religious community from 1966 onwards and on 3.7.1971 second appellant was excommunicated from the church due to misconduct and mismanagement of churchaffairs and the said five cents was purchased in the name of the second appellant for the church, while he was the president of the church committee using the funds of the Church and after he was expelled from the Church second appellant along with the first appellant tried to trespass into the plaint schedule properties and therefore respondent instituted O.S.562/73. The suitwas decreed. It was challenged in A.S.46/1977. It was dismissed under Ext.B1 judgment. Hence appellants cannot claim that they are in possession of the property. There is no fraud or mistake of fact or misrepresentation and Ext.A1 decree is not vitiated as alleged.It was alsocontended in view of the decree in O.S.562/1973 first appellant has title and possessionto the plaint schedule properties. Thereafter Paster Revt.Sundaram and J. Francis in their capacity as the President and Vice President of the Church filed O.S.318/1980 against the respondent and five others and second appellant was the second respondent in that suit. At the time of filing the suit, there was some dispute between the respondent and the office bearers and the suit was decreed on 28.3.1981 and A.S.489/1982 was filed beforethe District Court, Thiruvananthapuram. While so the disputes werecompromised evidenced by Ext.B2 judgment and the right of the respondent was approved by the first appellant in O.S.318/1980 and respondent was not excommunicated from the Churchfrom 1971 and respondent has right to represent the Church at the time of filing of the said suit and therefore appellants are not entitled to the decree sought for.

(2.) LEARNED Munsiff on the evidence of Pws. 1 to 3, DW1 to 3, Exts.A1 to A7 and B1 to B6 dismissed the suit holding that Ext.A1 decree is not vitiated and Ext.A1 decree was upheld under Ext.B1 judgment and in such circumstances, when Ext.A1 is binding on the appellants, appellants are not entitled to the decree sought for. Appellants challenged the judgment before Additional Sub Court, Thiruvananthapuram in A.S.55/1998. During the pendency of the appeal, first appellant died and appellants 3 to 6 were impleaded as his legal heirs.LEARNED Sub Judge on reappreciationof the evidence confirmed the findings of the learned Munsiff and dismissed the appeals.It is challenged in the Second Appeal.

(3.) ON hearing the learned counsel, I do not find any substantial question of law involved in the appeal.