KEZHUVEETTIL GOPALAKRISHNAN NAIR v. THE EXECUTIVE OFFICER, SRI KALIKAVU BHAGAVATHI DEVASWAM; MANAGING TRUSTEE, SRI KALIKAVU BHAGAVATHI DEVASWAM; THE COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENT

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939** **RSA.No. 1018 of 2017** **AGAINST THE JUDGMENT AND DECREE DATED 25-07-2017 OF DISTRICT COURT, MANJERI IN AS 51/2008.** **AGAINST THE JUDGMENT AND DECREE DATED 11-03-2008 of SUB COURT, MANJERI IN OS 29/2003.** **APPELLANT/APPELLANT/PLAINTIFF :** **KEZHUVEETTIL GOPALAKRISHNAN NAIR, AGED 81 YEARS,S/O.LATE ACHUTHAN NAIR,KARUVAMBRAM.P.O, MANJERI VIA,MALAPPURAM DISTRICT-676123.** **BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN** **SRI.P.T.GIRIJAN SMT.USHA NARAYANAN SRI.JYOTHIS MANU K.K.** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS :** **1. THE EXECUTIVE OFFICER, SRI.KALIKAVU BHAGAVATHI DEVASWAM, KARUVAMBRAM P.O.MANJERI VIA.MALAPPURAM DISTRICT - 676 123.** **2. MANAGING TRUSTEE, SRI KALIKAVU BHAGAVATHI DEVASWAM,KARUVAMBRAM P.O.MANJERI VIA.MALAPPURAM DISTRICT - 676 123.** **3. THE COMMISSIONER, HINDU RELIGIOUS & CHARITABLE ENDOWMENT, CIVIL STATION, KOZHIKODE.P.O,KOZHIKODE DISTRICT - 673 020.** **R1 BY ADVS.SRI.S.V.BALAKRISHNA IYER (SENIOR)** **SRI.P.B.KRISHNAN** **SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE** **R2 BY SRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM BOARD R3 BY GOVERNMENT PLEADER MS.REHNA.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** ## A.HARIPRASAD, J. -------------------------------------- R.S.A No.1018 of 2017 -------------------------------------- Dated this the 19th day of February, 2018 ## J U D G M E N T Heard the learned counsel for the appellant, the learned Senior Counsel for the first respondent and the learned Standing Counsel for the second respondent. Learned Government Pleader for the third respondent is also heard. 2. Appellant is the plaintiff in a suit for injunction filed as O.S No.29 of 2003 before the Court of Subordinate Judge, Manjeri. 3. Brief averments in the plaint are thus : Plaint schedule property belonged to Moorkot Chemmarasseri R.S.A No.1018 of 2017 2 Nagan Namboodiri. From him, the property was taken on lease by plaintiff's uncles Velu Nair and Ravunni Nair. As per Ext.A1, they took the property in Kanam right. Thereafter, the property was sold in court auction in O.S No.166 of 1930 filed by Karikkad Devaswam. The above property was purchased by one Padmanabhan Nair in the auction. From Padmanabhan Nair, the plaintiff's uncle Ravunni Nair purchased the property and he was holding the same in tenancy right. Plaintiff/appellant obtained the property in 1962 from his uncle Ravunni Nair by way of an oral entrustment and thereafter he had improved the property. He is in possession of the property. The defendant Devaswam has no right over the property. In 1975, the appellant filed an application before the Land Tribunal, Manjeri by impleading Moorkot Chemmarasseri Nagan Namboodiri as Jenmi and applied for purchase of Jenmam right. Against the Land Tribunal's order, disallowing the application, an appeal was taken R.S.A No.1018 of 2017 3 to the Appellate Authority under the Kerala Land Reforms Act, 1963 and got the matter remanded back to the Tribunal. Now, the matter is pending consideration of the Land Tribunal concerned. In the meanwhile, the respondent tried to trespass upon the property and interfere with the possession of the appellant. Hence the suit. 4. The respondent Devaswam contended that the suit is not maintainable as the appellant has no right or possession over the properties. According to the respondent, the property belongs to Kalikavu Devasam and it is a portion of ''Thaalapoli Paramba''. Second defendant also filed a written statement opposing the plaint claim and prayed for dismissal of the suit. Third defendant, the Commissioner, Hindu Religions & Charitable Endowment Department also filed a written statement supporting the contention of the Devaswam and prayed for dismissal of the suit. R.S.A No.1018 of 2017 4 5. The trial court considered the oral testimony of the appellant and Exts.A1 to A18 produced on the side of the appellant. In spite of adducing no evidence, the claim of the defendants was upheld and the court dismissed the suit finding that the plaintiff failed to identify the property and prove his possession for claiming a prohibitory injunction relief. 6. Dissatisfied with the trial court's judgment and decree, the appellant took up the matter in appeal before the lower appellate court. On a re-appraisal of the entire facts, the lower appellate court also agreed with the trial court and dismissed the appeal. Hence, this second appeal. 7. Learned counsel for the appellant contended that the courts below committed a grave error in dismissing the suit since there are ample evidence produced to show that the appellant is in possession of the property. Right from Ext.A1 Kanam deed executed in the year 1908 R.S.A No.1018 of 2017 5 documents produced on the side of the appellant would show that his predecessors and after them, he is in possession of the property. It is also submitted by the learned counsel for the appellant that the matter is now pending adjudication before the Land Tribunal concerned. 8. Learned Senior counsel appearing for the first respondent strongly supported the judgments of the courts below contending that the lower appellate court have clearly analyzed the evidence to find that the plaintiff has not taken any step to identify the property despite the defendants raising a serious dispute regarding identity of the property. Ext.A1 document which came into existence in 1908 was before the preparation of settlement register in Malabar. Settlement was done pursuant to Section 14 of Act III of 1896 as amended by Act I of 1920. Ext.A18 is the extract of resurvey and resettlement register of amsom No.2, Karuvambram in Eranad Taluk, erstwhile Malabar District. Item No.127 in R.S.A No.1018 of 2017 6 the register is the disputed property. Its registered extent is 84 cents. The survey number assigned at the time of resettlement was 98/1 and name of the paramba is Kannath Paramba. Patta number of the land was 83 and the pattadhar was the Kalikavu Devaswom represented by Ooralar Moorkot Chemmarasseri Raman Namboodiri. It is the submission of the learned Senior counsel that item No.126 in Ext.A18 pertains to property belonged to Raman Namboothiri in his private right. It is well settled that in respect of a Devaswom property, the Ooralar cannot have exclusive right and his status is that of a Manager. According to the learned Senior counsel what must have been given in Kanam right as per Ext.A1 could be the private property or illam property. Which properties are covered by Exts.A1, A2 and A3 have not been identified. The lower appellate court in paragraphs 23 to 35 elaborately considered the scope of various documents produced on the side of the appellant and entered a clear R.S.A No.1018 of 2017 7 finding that the plaintiff failed to identify the property despite raising a serious dispute regarding identity of the property by the respondents. It is interesting to note that no Commission was taken out in this case. Further, Ext.A13 is the Commissioner's sketch and report submitted in the proceedings before the Land Tribunal. Without examining the Commissioner, Ext.A13 was produced and marked and certainly it has no significance in identifying the property. 9. With reference to rent receipts and basic tax receipts, learned counsel for the appellant contended that the court below failed to attach importance to those documents. In answer to this contention, learned Senior counsel for the first respondent contended that it is not established that the rent receipts and basic tax receipts pertain to the property in dispute. I am of the view that the findings of the lower appellate court that the property was not identified correctly and the appellant failed to prove R.S.A No.1018 of 2017 8 possession cannot be disturbed in the light of overwhelming reasons stated by the lower appellate court. 10. Contention raised by the learned counsel for the appellant based on Smt. Urmil Gupta v. Commissioner ( AIR 2017 Himachal Pradesh 183) that he is entitled to get injunction cannot be accepted since the facts and circumstances revealed in this case clearly show that the plaintiffs failed to establish his possession and identify the property. 11. Learned counsel for the appellant sought for a remand of the matter for affording him an opportunity to take out a Commission to identify the property. In the light of the discussions made above and also on going through the judgments of the courts below, which show convincing reasons for dismissal of the suit, I find no reason to remand the case, which will only prolong the litigation. Therefore, that plea is rejected. 12. It is further submitted by the learned counsel for the appellant R.S.A No.1018 of 2017 9 that in case the appellant succeeds before the Land Tribunal in the pending proceedings, he should be given an opportunity to take appropriate action in this mater. It goes without saying that if the appellant is able to establish his tenancy right in a properly constituted proceedings, his right to claim appropriate reliefs in a properly instituted suit will not be affected by this judgment. In the result, I find no substantial question of law raising in this appeal. Hence, the second appeal is dismissed. All pending interlocutory applications will stand dismissed. A. HARIPRASAD, JUDGE. amk