VIJAYAKUMARAN Vs. GOVINDAPURAM TEMPLE

JUDGEMENT

(1.) These appeals and cross objections raise common issue and hence are being considered together.

(2.) The appellants in RSA No.420/2012 are the defendants 19 to 23, 26 and 27 in OS No.72/1997 on the files of Munsiff's- Magistrate's Court, Pattambi, a suit for declaration, injunction and for eviction filed representing the devotees of the Deity of Govindapuram Vishnu Temple. The appellants in RSA No.759/2011 are the defendants 3 & 4 in the said suit. The plaint schedule properties belong to the Govindapuram Temple Idol. The original Ooralan (trustee) of the Temple was one Sankaran Namboothiri. In 1899, a registered Kanam deed was executed in respect of 1 Acre 40 cents of property in favour of one Govindan Nair. On 9/4/1964, the lessee surrendered the lease in favour of the Idol represented by its trustee, Sankaran Namboothiri, by executing a registered document No.529/1964 (Ext.A1). It appears that proceedings were initiated for declaration of the temple as a public temple in terms of Sec. 57(a)of the Madras Hindu Religious and Charitable Endowments Act, 1951, which resulted in an order (Ext.B13) passed by the Deputy Commissioner of HR & CE, Kozhikode on 27/11/1978 declaring the Govindapuram Temple as a public religious institution. OS No.19/1976 on the files of the Munsiff-Magistrate's Court, Pattambi was instituted by the Govindapuram Temple represented by Parameswaran Namboothiri, S/o.Narayanan Namboothiri against the second defendant herein for recovery of possession on the ground that he had trespassed into the plaint schedule property. By judgment dtd. 15/1/1979, the suit was decreed. Later, the second defendant preferred an appeal as AS No.25/1979 before the first appellate court, which was also dismissed. Though it is stated that an appeal was preferred before this Court, and that during the pendency of the appeal, the matter was compromised between the trustee of the Govindapuram Temple and the second defendant, no evidence is produced to prove the said fact. The 2nd defendant claimed that, the right, title and interest over the item No.2 of the plaint schedule property was assigned in his favour in the year 1985 and that he had proceeded to mortgage the property with the Vallappuzha Service Co-operative Bank Limited. Later, when the bank initiated proceedings for the purpose of recovery of the debt, an award was passed in terms of the provisions of the Kerala Co- operative Societies Act, 1969 and the same was put to execution. In the execution, the Bank themselves purchased the property. However, it is stated that, later the Bank had re-conveyed the property to the original second defendant after receipt of the due amount. The appellants in RSA No.420/2012 claim title under the original second defendant by stating that the second defendant is entitled to possess the property by virtue of a registered document No.1006/1985 of the Sub Registrar's Office, Pattambi (Ext.A2) executed by the trustee of the Temple in pursuance to the compromise before this Court. The plaintiffs instituted the suit seeking a relief that the registered document executed in the year 1985 is not binding upon the Idol, inasmuch as the interest of the Idol, who is a perpetual minor, has not been properly protected by the erstwhile trustees and that the trustees had acted in breach of the trust and conveyed the property of the temple to a third person and, therefore, the transaction is fraudulent and not binding on them and thus sought for recovery of possession. The first defendant trustee remained ex parte, and the second defendant resisted the suit by contending that, in an earlier suit for injunction at the instance of the office bearers of the Kshetra Samrakshana Samithi, the trial court found that the second defendant was in possession and accordingly dismissed the suit and thus the committee is estopped from contending otherwise in the present suit. The second defendant also disputed the locus standi of the second plaintiff, who sued the defendants as a next friend. On behalf of the plaintiffs, Exts.A1 & A2 documents were marked and PW1 was examined. On behalf of the defendants, Exts.B1 to B13 documents were marked, but no oral evidence was adduced. The trial court, on appreciation of the oral and documentary evidence, concluded that, the 2nd plaintiff cannot be granted the relief of recovery of possession on behalf of the Idol and dismissed the suit notwithstanding the fact that the Commissioner of HR & CE, Kozhikode (now the Commissioner of Malabar Devaswom Board) was a party to this suit. Aggrieved, the plaintiffs preferred AS No.72/2004 before the Sub Court, Ottappalam. The first appellate court on re-appreciation of the evidence came to the conclusion that the transfer effected in favour of the second defendant by the erstwhile trustee would not confer any title on the 2nd defendant and it further found that as far as A schedule property is concerned, the plaintiffs had claimed only a relief of declaration and consequent injunction and the failure to ask for recovery of possession is detrimental to the claim, despite finding that Ext.A2 document is not binding on the temple. However, insofar as item No.B is concerned, the first appellate court granted recovery of possession from the second defendant. The assignees of item No.A schedule property have come up in RSA No.420/2012 questioning the grant of recovery of possession against item No.B property and the Bank, which has claimed mortgage rights over the property, has come up in RSA No.759/2011.

(3.) RSA No.759/2011 was admitted on 20/11/2014 on the substantial questions of law formulated in the memorandum of appeal, which read as follows: