Mannadi Bhagavathi Kshethram v. Parambil Tharavadu and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944** **RSA NO. 568 OF 2013** **MEMORANDUM OF REGULAR SECOND APPEAL FILED UNDER SECTION 100 OF CPC AGAINST THE DECREE AND JUDGMENT DATED 23.06.2010 IN AS 104/2003 OF ADDITIONAL SUBORDINATE JUDGE'S COURT, TRIVANDRUM ARISING FROM THE DECREE AND JUDGMENT DATED 30.09.2002 IN OS 701/1995 OF PRINCIPAL MUNSIFF'S COURT, TRIVANDRUM** ## **- APPELLANT: (APPELLANT/3RD DEFENDANT)** **KUMARI AJITHA, AGED 56 YEARS, W/O.LATE PURUSHOTHAMAN NAIR, PARAMBIL VEEDU, PEROORKADA, THIRUVANANTHAPURAM DIST** **BY ADVS. SRI.SHAMMI VIJAYAN SRI.AYYAPPAN SANKAR** ## **- RESPONDENTS: (RESPONDENTS/RESPONENTS AND ADDL.RESPONDENT IMPLEADED** ## **IN THE APPELLATE STAGE)** - **1 MANNADI BHAGAVATHI KSHETRAM PERRORKADA, REP BY THE ELDEST MEMBER OF THE PARAMBIL THARAWAD NAMELY K DAMODHARAN PILLAI, PANKAJ VIHAR, UPPALAM ROAD, THIRUVANANTHAPURAM-695 005** - **2 RAVEENDRAN NAIR, AGED 74 YEARS, S/O.RAMAKRISHNA PILLAI, THENGUVILA VEEDU, THIRUVANANTHAPURAM-695 005** - **3 RADHAMMA, AGED 70 YEARS, D/O.JANAKI AMMA, PARAMBIL VEEDU, PEROORKADA, THIRUVANANTHAPURAM-695 005** - **4 JANAKI AMMA, AGED 99 YEARS, D/O.PACHI AMMA, PARAMBIL VEEDU, PEROORKADA, THIRUVANANTHAPURAM-695 005** - **5 B NARAYANAN NAIR, AGED 75 YEARS, BINDHU NIVAS, VELLAIKADAVU, KODUNGALNOOR P O, VATTIYOORKAVU-685 013** - **6 J SETHUKUTTY AMMA, AGED 72 YEARS, THURVAOOR, THURAVOOR VEEDU, PAIPINMOODU,SASTHAMANGALAM,THIRUVANANTHAPURAM, (WORNGLY STATED AS SASASWATHY AMMA, IN THE APPELLATE** R.S.A No. 568 of 2013 **2** **JUDGMENT)695 010** - **7 J PRABHA DEVI, AGED 74 YEARS, RAJI NIVAS, ASRAMAM ROAD, NETTAYAM-695 013** - **8 KRISHNA NAIR, AGED 78 YEARS, V.K.HOUSE, KARIPOOR, NEDUMANGADU-695 541** - **9 J KUMARI, AGED 73 YEARS, ASWATHI BHAVAN, THEMETTIKONAM, VENJARAMOODU, THIRUVANANTHAPURAM-695 607** - **10 SREEDHARAN NAIR T C, AGED 70 YEARS, 9/2428,SREEDAS, SREERANGAM LANE,SASHTAMNGALAM-695 010** - **11 SASASWATHY NAIR, AGED 60 YEARS W/O.R RAVAEENDRAN NAIR, SARAS, THENGUVILA , NEAR PRABHATH COTTAGE, PERRORKADA-695 005** - **12 RAJESH RAVEENDRAN, AGED 45 YEARS, S/O.RAVEENDRAN NARI, SARAS, THENGUVILA, NEAR PRABHATH COTTAGE, PERROKADA-695 005** - **13 RAMESH RAVEENDRAN, AGED 43 YEARS, S/O.RAVEENDRAN NAIR, SARAS, THENGUVILA, NEAR PRABHATH COTTAGE, PERRORKADA-695 005 BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.SAJU.S.A SRI.VINOD RAVINDRANATH SMT.MEENA.A. SRI.K.C.KIRAN SMT.M.R.MINI SRI.M.DEVESH SRI.ASHWIN SATHYANATH SHRI.ANISH ANTONY ANATHAZHATH SHRI.THAREEQ ANVER** ## **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON** **12.08.2022, THE COURT ON THE 29.08.2022 DELIVERED THE FOLLOWING:** R.S.A No. 568 of 2013 **3** ## **JUDGMENT** This appeal has been directed against the judgment and decree in A.S.No.104/2003 on the file of Additional Subordinate Court, Thiruvananthapuram which arose out of the judgment and decree in O.S.No.701/1995 on the file of Principal Munsiff's Court, Thiruvananthapuram. 2. Appellant is the 3[rd] defendant in O.S.No.701/1995 (parties would hereafter be referred as per the status before the Trial court). The suit has been filed by the 1[st] plaintiff Mannadi Bhagavathi Kshethram, Peroorkkada represented by the eldest member of Parambil Tharavadu namely K.Dhamodharan Pillai and three others. Suit was one for declaration of title and recovery of possession. Plaintiffs Nos. 2 to 5 are the members of the Tharavad known as Parambil Tharavad, Peroorkkada. The members of the Tharavad are in absolute possession of the properties of family Temple and in control and management and administration of the R.S.A No. 568 of 2013 **4** Temple. Partition Deed was effected as No.517/1102ME with respect to Tharavad properties whereby 23 Cents in survey No.21B of Kodappanakunnu Panchayath was included under schedule 2 of the deed which was set apart for the Temple for conducting the rituals and poojas of the Temple. As per that partition deed, the 59[th] party in the deed was entrusted with the Temple property for looking after the affairs of the Temple and the property. Whileso, 10 Cents of property at the southern most portion of 23 Cents was auctioned by the Assistant Teshkar for tax arrears in the year 1114ME and remaining 13 Cents is the plaint schedule property. After the death of Sivarama Pillai, Raghavan Pillai, the 82[nd] party in the partition deed, took over the charge of the Temple and has been looking after the affairs of the Temple. After his demise, members of the Tharavadu have been looking after the affairs of the Temple since nobody was willing to take over the charge of the Temple affairs. Whileso, 2[nd] and 3[rd] defendant trespassed into the plaint schedule property claiming right and title over the same and started taking yield from the property. On enquiry, it was revealed that 1[st] R.S.A No. 568 of 2013 **5** defendant Janaki amma who is the 73[rd] party in the partition deed executed a settlement deed No.2600/1993 dated 03.07.1993 settling plaint schedule property in favour of her son, the 2[nd] defendant. Later 2[nd] defendant executed another settlement deed No.1125/2004 settling 5 Cents out of the plaint schedule property in favour of the 3[rd] defendant who is the wife of the 2[nd] defendant. Those documents are executed without any authority to the executors and are sham and abinitio void. So, plaint schedule property absolutely belong to 1[st] plaintiff Temple. Defendants have no manner of right over the plaint schedule property. They are now in possession of the plaint schedule property. Hence, the suit has been filed seeking for declaration of the above sale deed as void and to recover possession of plaint schedule property from the defendants. 3. Defendants No.1 and 2 filed separate written statement contending that the suit is not maintainable. 1[st] defendant is neither a legal person nor a legal entity. Tharavad is not in existence and no alleged senior member can represent the Temple. All the members of the Tharavad are necessary parties to the suit. The suit ought to have R.S.A No. 568 of 2013 **6** been filed in a representative capacity. The 1[st] plaintiff has no right title and possession over plaint schedule property. Description of the plaint schedule property is wrong. Suit is bad for non joinder of necessary parties. The subject matter of the suit has no such extent and was never under the management of anybody other than the 2[nd] defendant and his mother, the 1[st] defendant. Nobody had any independent right over the Temple. Anybody is entitled to take up the management and administration of the Temple jointly and severally. The auction sale alleged is bogus and sham. It is not binding on the Temple nor the members of the family. The subject matter was in the independent possession and enjoyment of the 1[st] defendant and she gifted the property to the 2[nd] defendant and the 2[nd] defendant is continuing in possession and enjoyment of the property. Even if the 1[st] plaintiff has any right over the same, it has been lost by the hostile and notorious possession of the property by the defendants. Plaintiff or anybody else have no right to question or disturb the defendant's rights. The suit is instituted at the instance of one Krishnan Nair, his wife Radha and his daughter Sasikala R.S.A No. 568 of 2013 **7** 4. 3[rd] defendant also filed separate written statement raising identical contentions. According to him, plaint schedule property separately belongs to the 1[st] defendant's mother and succeeding to her, 1[st] defendant came into possession of the property. There is no property available answering the plaint schedule description. Under the partition deed No.517/1102ME, 23 Cents of property was included and described it as a property which came into the possession of the family. The entire property included in the partition deed was taken away and there was no property left as portion available to the family as scheduled in the plaint. 1[st] defendant came into the possession of 14 Cents of property in survey No.21 of Kodappanakunnu Village by the year 2011-14ME in continuation of the possession of his mother Pachiyamma. The attempt of the plaintiff is to dispossess the 1[st] defendant and others from the property in their possession for the last more than 16 years. All other contentions in the written statement of other defendants are also reiterated. 5. The learned Munsiff tried above suit along with R.S.A No. 568 of 2013 **8** O.S.No.424/1996 filed by the 2[nd] defendant in O.S.No.701/1995, which was a suit for permanent prohibitory injunction. O.S.No.701/1995 was taken as the leading case. PWs 1 and 2 examined and Exts.A1 to A10 marked from the side of the plaintiff. DWs 1 to 3 examined and Exts.B1 to B3 marked from the side of the defendants and Exts.C1 and C1(a) were also marked. The learned Munsiff on evaluating the facts and circumstances and evidence adduced, found that 1[st] plaintiff Temple has title over the plaint schedule property and plaintiffs 2 to 4 are allowed to recover possession of the plaint schedule property from defendants 2 and 3 on behalf of 1[st] plaintiff. O.S.No.424/1996 has been dismissed. 6. Against the judgment and decree passed in O.S.No.701/1995, the 3[rd] defendant filed appeal as A.S.No.104/2003 before 1[st] Additional Sub Court, Thiruvananthapuram. On reappreciating the facts and circumstances and evidence adduced, the learned 1[st] additional Sub Judge confirmed the judgment and decree passed by the Trial Court and dismissed the appeal. 7. Having lost in two forums, appellant/3rd defendant in R.S.A No. 568 of 2013 **9** O.S.No.701/1995 approaches this court in this R.S.A. 8. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondents. 9. The learned counsel for the appellant contended that Order I Rule 8 publication ordered and effected by the courts below is not in compliance of the statutory formalities and the settled principles of law. All the family members are necessary parties to the suit. Since all the parties are ascertainable, Order 1 Rule 8 publication is not a proper course open to the plaintiff. He would also contend that plaintiff Nos.3 and 4 are having conflicting interest since 10 Cents of property out of 23 Cents set apart to the Temple has been purchased by them and that has not been disclosed in the plaint while filing the suit. He would also contend that the property is not identified and hence recovery of possession and declaration ought not have been granted. 10. The learned counsel for the respondent/plaintiff on the other hand would contend that their dispute is only as against the defendants since they clandestinely transfered property of the Temple R.S.A No. 568 of 2013 **10** and there is no public interest involved and only because of the contentions raised in the written statement that Order 1 Rule 8 publication was effected. With regard to the identity of the property, she would contend that on a bare glance through plaint schedule described in O.S.No.424/1996, it can be seen that the same property has been scheduled by the defendants in their suit by seeking injunction against the plaintiffs. It is further contended by her that subject matter of the suit in O.S.No.424/1996 as well as 701/1995 are one and the same and the suit O.S.No.424/1996 was dismissed. Though an appeal was filed against that judgment, it was subsequently dismissed for default. The appellant/defendant has not further prosecuted the matter and hence, decree in O.S.No.424/1996 will operate res judicata in maintaining the present appeal. 11. In order to substantiate his contention with respect to Order 1 Rule 8 of the Code of Civil Procedure without making all family members as party to the proceedings, the learned counsel placed reliance on _**SNDP Saga Yogam v. Kerala Athma Vidhya Sangham**_ [2017 8 SCC 830; 2017 4 KLT 866; 2017 4 KHC 801]. In R.S.A No. 568 of 2013 **11** that decision, it has been held that the Trial court granting permission to the plaintiff to sue in representative capacity, upon recording no objection from the side of the defendants is not proper and granting permission to sue in representative capacity the Trial court is expected to decide several material questions namely whether the plaintiff who is a juristic person entitled to invoke Order 1 Rule 8 publication whether the expression person occurring in Rule 8 includes juristic person; whether facts pleading and relief claimed in the plaint can said to be in nature of representative character. 12. Paragraph 48 of _**Narayanan N.V. & Others v. Periyadan Narayanan Nair & Others** [ILR 2021 3 Kerala 179; 2021 3 KLJ 446; 2021 3 KHC 211]_ was highlighted by the learned counsel, wherein it has been held that granting permission or issuing direction to sue under Order 1 Rule 8 publication is a discretionary decision of the court, such a discretion should be exercised based on equitable principles known to law and granting or refusing permission or issuing direction is not an empty formality. The court should be conscious of the implication of the decree being passed in R.S.A No. 568 of 2013 **12** a representative suit which will bind not only the parties but also whom the parties suppose to represent. 13. The learned counsel further relied on _**Profulla Chorone Requitte & Ors vs Satya Chorone Requitte**_ [AIR 1979 SC 1682; 1979 3 SCC 409; 1979 KHC 695] to substantiate his contention that all the family members ought to have been made parties to this proceedings and publication under Order 1 Rule 8 will not suffice. But in that decision actually the question regarding schebaitship in connection with religious and charitable endowment have come up for consideration and it was held that where the founder does not dispose of the shebaiti rights in the endowment created by him, the shebaitship devolves on the heirs of the founder according to Hindu Law, if no usage or custom of different nature is shown to exist. Ultimately, it was concluded that shebaitship deity remains solely with the dependents of the founder. But in that decision, the question actually emerged for consideration was with regard to schebaitship of deity and has no direct bearing to the fact situation of this case. 14. In the present case, in the written statement of the R.S.A No. 568 of 2013 **13** defendant, they have contended in Paragraph No.5 that all the members of the Tharavad are necessary parties to the suit and it is further contended that even if there are numerous persons the remedy is to file a representative suit in Order 1 Rule 8 publication. Again in Paragraph No.28, it is further contended that there are numerous members in the family and plaintiffs 2 to 4 have no independent authority to institute the suit in the capacity alleged and there is no representation of the 1[st] plaintiff. So it is in view of the contentions raised by the defendants in the written statement subsequently Order 1 Rule 8 publication was effected by the plaintiff. As rightly contended by the learned counsel for the plaintiff, the plaint avernments would go to show that the relief sought by the plaintiff is only against defendants who are trespassers and taken possession of the property of the Temple and the appurtenant land extenting 13 Cents and they have no grievance against other family members also. Hence, there is no necessity to implead all the family members as parties to the suit. 15. The next contention of the learned counsel is with regard to R.S.A No. 568 of 2013 **14** the identity of the plaint schedule property. But the learned counsel for the respondents/plaintiffs in this context bring my attention to a specific pleadings and the description of the plaint schedule property in the plaint in O.S.No.424/1996 which was filed by the 2nd defendant in O.S.No.701/1995. The suit has been filed seeking for a permanent prohibitory injunction for restraining the defendants, 4th plaintiff in O.S.No.701/1995 and others by a permanent prohibitory injunction from making any construction tresspassing into plaint B schedule property and putting up structures so as to reduce the width of the plaint B schedule property and doing anything which will reduce or destroy the lie and width of the plaint B schedule property. Description of plaint A schedule property in O.S.No.424/1996 has been extracted in page No.23 of the judgment of the learned Munsiff which reads thus; "സവവ ർ 21B യയൽ 43 സസനയൽ ഉള പരയയടതയൽ കയഴക വശശ 20 സസനന 1102 -സലെ 517- നമർ ഭഭഗപത പകഭരശ വവസറ വവതശ വപഭയതന നവകയ വശഷശ 23 സസനയൽ ഉള പരയയടതയൽ വമവക അതയതയയയർ ൽ നയനന സതക പടയഞഭറഭയയ R.S.A No. 568 of 2013 **15** 20 ലെയങനസന വവതയയുള വഴയക കയഴക വശശ 10 സസനന മൻ വയലെ വപഭയതന നവകയ വശഷശ വഴയ ഉൾസപസടയുള 13 സസനയൽ അഞ ആർ ഇരപതയയഭറന ചതരശ മവറർ ർ വയസവണമള പരയയടവശ വകങളശ ടയ പരയയടതയലള കടപനകനന പഞഭയതന വക XI -ൽ 547- നമർ സവടയസകട ഓലെവമഞ പഴയ സകടയടശ മറ സകലെ വകകളശ ” ആകന. The description of the plaint schedule property in O.S.No.701/1995 is also extracted in page No.22 of the judgment of the learned Munsiff which reads thus; "സവവ ർ 21B യയൽ 43 സസനയൽ ഉള പരയയടതയൽ കയഴക വശശ സതകവടക നവളതയൽ ഇരപത സസനന 1102 -സലെ 517-) നമ ഭഭഗചത പകഭരശർ പഭചയ 'അമ മതൽ വപകന ഭഭഗശ സകഭടതത കഴയച ബഭകയയുള ഇരവതയമനർ ൽ ർ സസനയ സതകറശ കയഴക വമകന മറയച 10 സസനന 42/114- നമ വലെലെ സനതശ പകഭരശ വലെലെശ വപഭയതന കഴയച വടക ഭഭഗശ ഉള കയഴക വമകന മറയച പതയമന സസനന വസ തനകതള വകങൾ “ , ഓലെ വമഞ സകടയടശ മതലെഭയവ സകലെ വകകളമഭകന. So, on going through the above description of the plaint schedule property in O.S.No.701/1995 and plaint A schedule in O.S.No.424/1996, it is clear that there is description with respect to R.S.A No. 568 of 2013 **16** 13 Cents in plaint schedule property in O.S.No.701/1995 as well as in O.S.No.424/1996. So contention of the learned counsel for the 3rd appellant/defendant that plaint schedule property in O.S.No.701/1995 is not identified is not at all sustainable. 16. Yet another contention advanced by the learned counsel is that 4th plaintiff is the person who purchased 10 Cents out of 23 Cents and hence, she is not competent to file suit for protecting the interest of the Temple and the suit filed by the 4th plaintiff on behalf of the Temple ought not have been entertained. He also contended that no document is produced to prove that there was any tax arrears and property was auctioned by revenue authority and thereby 4th plaintiff purchased the property. The description of the plaint schedule property in O.S.No.424/1996 itself would go to show that the plaintiff in O.S.No.424/1996 who is the 1st defendant in O.S.No.701/1995 who is none other than the mother of the 2nd defendant, who is plaintiff in O.S.No.424/1996 has categorically admitted that out of 43 Cents in Survey No.21B after leaving 20 R.S.A No. 568 of 2013 **17** Cents on the eastern side given to others as per partition deed No.517 of 110, out of balance 23 Cents on the east of 20 Links path way, 10 Cents of property has already been sold, the balance 13 Cents of property including the way and the improvements including the thatched shed with No.X1/547 of Kudappanakunnu and the trees standing therein is described as A schedule. So the avernment in the plaint itself would that they are quite aware of the sale of 10 Cents of property and the balance property is described as 13 Cents. So also that sale was in the year 1114ME. Nobody has challenged that sale also. That would lead to an inference sale of that 10 Cents of property out of 23 Cents set apart to the Temple is accepted and approved by all the family members. 17. On going through the judgment and decree passed by the courts below, it can be seen that the suit has been filed by the plaintiff for declaration and recovery of possession R.S.A No. 568 of 2013 **18** of 13 Cents of plaint schedule property which includes the family Temple. It is in absolute control and management and administration of the members of the Tharavad. Ext.A1 is the partition deed executed with respect to the Tharavad properties and as per which, 23 Cents of land was set apart for the Temple for the purpose of conducting poojas and other ceremonies for the betterment and welfare of the family. It has come out that out of 23 Cents, 10 Cents has already been auctioned in 1114ME for tax arrears and remaining 13 Cents is the plaint schedule property. The suit was filed when the 2[nd] and 3[rd] defendants tresspassed into the plaint schedule property and claimed right and title over the same and started taking yield from the plaint schedule property. On enquiry, it was found that the 1[st] defendant who is the 73[rd] party in the partition deed settled the plaint schedule property in favour of her son who is the 2[nd] plaintiff in O.S.No.424/1996 as per Ext.A4 gift deed. Ext.A4 is the gift deed executed by 1[st] defendant Janakiyamma in favour of her son the 2[nd] defendant, who is the plaintiff in O.S.No.424/1996. As per which, 13 Cents of property out of the western 23 Cents forming part of 43 R.S.A No. 568 of 2013 **19** Cents was gifted to the 2[nd] defendant by the 1[st] defendant. It has been found concurrently that the property described in Ext.A4 is part of 23 Cents alloted to the Temple as item No.2A scheduled in Ext.A1. Subsequently, the 2[nd] defendant, Purushothaman Nair executed Ext.A5 gift deed in favour of appellant herein, who is the 3[rd] defendant in O.S.No.701/1995. So, property covered by Exts.A4 and A5 is part of 23 Cents set apart to the Temple since that 13 Cents out of 23 Cents is set apart to the Temple as per Ext.A1. 1[St] defendant has no legal right to transfer the said 13 Cents in favour of 2[nd] defendant. So it has been found by the courts below that Exts.A4 and A5 are sham documents without any legal effect since the vendor has no saleable right over the said property to execute the sale deed in favour of the 3[rd] defendant. So, the creation of the those documents create a cloud over the title of 1[st] plaintiff over schedule property. Though a plea of adverse possession has also been put forward by the 3[rd] defendant, as has been rightly found by the courts below, there is no sufficient pleadings in the written statement to prove that she has perfected title over the plaint schedule property by R.S.A No. 568 of 2013 **20** way of adverse possession. It is specifically alleged in the plaint that the predecessors of the 3[rd] defendant tresspassed in to the plaint schedule property on 25.08.1993 subsequently suit was filed in the year 1994. Plaintiff could establish their right and title of the 1[st] plaintiff Temple over the plaint schedule property. So, execution of Exts.A4 and A5 by the defendants itself would prove their intention of act of trespass and intention to grab the property of 1[st] plaintiff Temple. 18. On a close scrutiny of the judgment and decree passed by the courts below, I am of the considered view that the courts below have evaluated the facts and circumstances and evidence adduced in a correct and perspective and decreed the suit declaring the 1[st] plaintiff's title over the plaint schedule property and plaintiff Nos. 2 to 4 are allowed to recover the possession of plaint schedule property from the defendants 2 and 3 for and on behalf of 1[st] plaintiff. I do not find any question of law or any substantial question of law emerging for consideration for entertaining this second appeal. R.S.A No. 568 of 2013 **21** Hence, appeal is found to be devoid of any merit and hence, dismissed. No cost. rps/ **Sd/M.R.ANITHA, JUDGE**