S N D P POOTHOTTA BRANCH Vs. AMMINI

JUDGEMENT

(1.) These two appeals arise from the decree and judgment passed by the Court below in OS No. 69/1980. AS No. 199/1999 was filed by the plaintiffs challenging that part of the decree by which their prayer for recovery of plaint B and C schedule properties was disallowed. AS No. 449/1999 was filed by defendants 2 to 10 and 12 to 16 challenging a finding of the Land Tribunal that they are not entitled to get fixity of tenure over 69 cents of land which is part of B schedule. For the sake of convenience the parties will be referred to as arrayed in the Court below.

(2.) Plaintiffs filed the suit for a declaration that B and C schedule properties and the temples situated in B schedule are in the ownership and possession of first plaintiff and defendants 2 to 10 have no manner of right, title, interest or possession over B and C schedule properties and also for directing defendants 1 to 10 and 12 to 17 not to disturb the peaceful possession of plaintiffs over B and C schedule properties and in the alternative for recovery of possession of B and C schedule properties and temples from defendants 2 to 10 with mesne profits.

(3.) The following are the material averments in the plaint. Plaint A, B and C schedule properties originally belonged to Kochiparambil Family, an Ezhava Family following Marumakkathayam law and governed by Travancore Ezhava Act. Plaint A schedule was given to Poothotta Ezhava Samajam by the Kochiparambil Family. Ownership and possession of A schedule property vested in the said Samajam. Subsequently the right, title and interest of the Samajam devolved upon the first plaintiff SNDP Branch at Poothotta. In plaint A schedule there is a Shiva temple in which deity was installed by Sree Narayana Guru Swami in 1068 M.E. A high school and office buildings owned by the first plaintiff are also situated in that property. The Government Primary School is functioning in a building put up by the Government with the permission of first plaintiff. Though the area of A schedule is stated as 2 acres 97 cents in the revenue records the actual extent is 2 acres 30 cents. It is owned and possessed by the first plaintiff and no one have any manner of title, right or possession over it. On 04/11/1098 a partition was effected by the Kochiparambil Family as per document No. 4027/1098. The Family was divided into eight branches. I schedule in the partition deed was kept as a common property. A reading of the description would give an impression that plaint A schedule was also included in that schedule but long prior to that date A schedule property was given to the first plaintiff's predecessor in interest. The property included in I schedule was plaint B and C schedules. It was provided that the income from B and C schedule should be utilised for the maintenance of the common ancestress Cheerapennu and for the annual thatching of common building. It was also provided that income derived from the temple situated in B schedule shall be utilised to meet the expenses of ceremonies and day today affairs of that temple. It was further provided that after Cheerappennu's death the eldest male member of the family should keep possession of the property and utilise the income from B and C schedule properties for the conduct of the ceremonies of the temple. He should maintain proper accounts and the same should be scrutinised and approved by the seniormost members of the thavazhies. Rest of the income should be utilised for common purposes. It was also provided that if any documents were to be executed the same should be executed by all executants of the partition deed together. B and C schedule properties were in the possession of the eldest male member of the family who was taking income from the properties and the temple and utilising the same for temple and other purposes as per the partition deed. In the year 1124 Shri K. C. Kunjan Panicker was the eldest member of the family. He was managing B and C schedule properties. At that time Shri Chennan Panicker who was a junior member of the family was a priest of the temple. Late Kunjan Panicker allowed Chennan Panicker to manage B and C schedule properties. Chennan Panicker was managing B and C schedule properties and taking income for the purpose of meeting the expenses of temple and its upkeep. Kunjan Panicker executed document No. 2015/1124 of Vaikom registry in favour of Chennan Panicker in respect of plaint C schedule property. Chennan Panicker was directed to pay Rs.18 and 4 chakrams for the purpose of temple to Kunjan Panicker and to obtain receipt and also to pay tax to the Government. It was averred that the lease deed was purported to be for C schedule property alone. Though the extent was shown as one acre 51 cents, the actual area was only one acre 15 cents and even from that one acre 15 cents some trees were excluded. It was further averred that the lease deed was a bogus and invalid one as it was beyond the powers of Karanavan. Lease deed was never intended to be acted upon and was never acted upon. There was no demarcating boundary between B and C schedule properties. C schedule properties are also necessary for the proper conduct of the temple and its affairs and ceremonies. A building at south western portion of C schedule was always used for the residence of the temple priest. Such residence was necessary for the proper and efficient services in the temple. It was averred that C schedule property continued to be in the possession and enjoyment by the temple and family in spite of the lease deed. Chennan Panicker never paid any rent to the Karanavan. No receipts were also issued. Chennan Panicker never claimed any interest on the basis of the lease. B schedule to the plaint is the area over which the temple and appurtenant structures and land are situated. The main deity is "Bhadrakali". There are other deities also. There are pattambalam, bhajanapura, office building and a shop building situated in the property. The residence of the priest is situated in C schedule property. There is a temple tank and well in B schedule property. There is thookkathara also in front of the temples. Kochiparambil family got itself divided into various branches. Most of the members are residing far away from the temple and its properties. Since it was difficult to manage the affairs of the temple and properties a decision was taken to entrust the temple and its properties to the first plaintiff for management as the first plaintiff is an institution established and proved for the good and welfare of the community in particular. The 11th defendant who was the eldest male member of the family requested the first plaintiff to take up the temple and its properties. All available members of the family together had executed a gift deed in favour of the first plaintiff by document No. 163/1979 dated 15/01/1979. It was executed by ten members. Executants 8 and 10 alone were the surviving executants of the partition deed No. 4027/1098. As per the said gift deed the entire B and C schedule properties were given possession to the first plaintiff and the first plaintiff was taking income and attending to the agricultural operations in the properties. The keys of the temples were in the possession of defendants 2 to 10. Shri Gopala Panicker became the eldest male member of the family in July, 1976. He was unable to manage the properties and the temple directly. He also allowed Chennan Panicker to look after the properties and temple. Gopala Panicker entrusted keys of the temple with Chennan Panicker. Thereafter second plaintiff Damodara Panicker managed the temple and properties under Gopala Panicker. Gopala Panicker died in 1978. Defendants 3 to 5 continued to be in the management. After the gift deed first plaintiff informed defendants 3 to 5 that thereafter they need not manage the temple and its properties. But they did not handover the keys to the first plaintiff. Three more persons of Kochiparambil family executed a gift deed in favour of first plaintiff on 24/05/1979 and some other members executed another gift deed in favour of first defendant on 07/06/1979. Chennan Panicker died in the year 1976. His estate was inherited by his daughter first defendant. Chennan Panicker had illicit intimacy with the second defendant during the life time of his wife. Defendants 3 to 10 are the children of Chennan Panicker through the second defendant. Defendants 2 to 10 are not the legal representatives or heirs of Chennan Panicker. They were living with him during his last days and hence they happened to be the residents of the building situated at the south western portion of C schedule property. Defendants 1 to 10 have no manner of right, title or interest in the plaint schedule properties. 11th defendant is the senior most member of Kochiparambil family. 12th defendant claims that she is also a member of the Kochiparambil family. Defendants 13 to 16 are her children. 17th defendant is also a member of the Kochiparambil family. There are numerous members in the family. So plaintiffs had instituted the suit in a representative capacity and 17th defendant was impleaded as representative of the members of the family. Proceedings under S.145 of Criminal Procedure Code was initiated by the Sub Divisional Magistrate. In that proceedings a receiver was appointed and he took possession of the properties from the plaintiffs. There are four buildings in B and C schedule properties which belong to the temple. Those buildings and land are appurtenances to the temple and they are necessary for the convenience and purpose of the temple. Defendants 1 to 10 are not members of the Kochiparambil family though Chennan Panicker was a member of the family. Since B and C schedule properties are trust properties no strangers apart from the members of the family are entitled to have interest on the basis of inheritance. Even otherwise the first plaintiff is entitled to be in joint possession along with other coowners. If it is found that defendants 1 to 10 have any manner of right plaintiffs are entitled to get recovery of the same. D schedule movables belonged to temple and those movables are necessary for the use and purpose of the temple. Since the 12th defendant had filed OS No. 247/1979 challenging the rights of the first plaintiff, herself and her children are impleaded in the present suit.