National Council of Young Men's Christian Associations of India v. Rasalam Memorial C.S.I. Church at Nellikkakuzhi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2013/27TH AGRAHAYANA, 1935** ## **FAO.No. 139 of 2011 ( )** **-----------------------AGAINST THE ORDER/JUDGMENT IN A.S.183/2004 of SUB COURT,NEYYATTINKARA DATED 04-01-2011 AGAINST THE ORDER/JUDGMENT IN OS 254/1995 of I[ST] ADDL.MUNSIFF COURT, NEYYATTINKARA DATED 30-06-2004** **APPELLANT(S)/RESPONDENTS/PLAINTIFFS:** **-------------------------------------------------------------------** ## **1. NATIONAL GENERAL SECRETARY OF** **NATIONAL COUNCIL OF YOUNG MEN'S CHRISTIAN ASSOCIATIONS OF INDIA, JOHN VARGHESE REPRESENTED BY HIS ATTORNEY THE PRESIDENT, Y.M.C.A.NELLIKAKUZHI E.THANKACHAN, Y.M.C.A BUILDING, NELLIKAKUZHI, KANJIRAMKULAM P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.** ## **2. THE SECRETARY,** - **Y.M.C.A.NELLIKAKUZHI, C.DAVIDSON, DO. DO.** ## **3. E.THANKACHAN, PRESIDENT Y.M.C.A** **NELLIKAKUZHI, SHAJI BHAVAN, KANJIRAMNINNA MULLUVILA, PRESIDENT, Y.M.C.A.NELLIKAKUZHI KANJIRAMKULAM-695 121.** **BY ADVS.SRI.G.UNNIKRISHNAN SRI.S.SREEDEV** **RESPONDENT(S)/APPELLANT/DEFENDANT:** **------------------------------------------------** **RASALAM MEMORIAL C.S.I. CHURCH AT NELLIKAKUZHI, KANJIRAMKULAM P.O - 695 121 REPRESENTED BY ITS SECRETARY.** ## **R BY ADV. SRI.G.S.REGHUNATH** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18-10-2013, ALONG WITH FAO. 147/2011 & FAO. 148/2011, THE COURT ON 18-12-2013 DELIVERED THE FOLLOWING:** ## **S.S.SATHEESACHANDRAN, J. -------------------------------** **F.A.O.NOS.139, 147 & 148 OF 2011 ----------------------------------Dated this the 18[th] day of December, 2013** ## **J U D G M E N T** These appeals are filed against the Order of remand passed by the learned Sub Judge, Neyyattinkara under a common judgment rendered in three appeals - A.S.No.183 of 2004, A.S.No.184 of 2004 and R.F.A.No.188 of 2004 - by which the decrees passed in two suits viz. O.S.No.141 of 1995 and O.S.No.254 of 1995 by the I[st] Additional Munsiff, Neyyattinkara, were set aside, and the suits were remanded for fresh disposal with some directions. 2. Appellants are the common plaintiffs in the two suits, O.S.No.254 of 1995 and O.S.No.141 of 1995. 3. Rival claim of title between a Church and a national organisation over five cents of property situate in Survey No.109/20 of Kanjiramkulam Village with the improvements therein including buildings put up in which an association carried many activities like library, nursery school etc., has given **F.A.O.NOS.139, 147 & 148 OF 2011** **2** rise to the litigation under the two suits. Plaintiffs in both suits represent a national organisation, namely, “National Council of Young Men's Christian Associations of India” which claimed of title and possession over the above five cents of property. A rival claim was set up by the local church, viz. CSI Church, Nellikakuzhi, contending that an association namely, Young Men's Christian Association, for short, 'Y.M.C.A.', functioned as part of the church activities in the property, which, according to them, was purchased by the church for its association. The first suit, O.S.No.141 of 1995, was instituted for a decree of injunction, but, later amended for a declaration of the title and possession of plaintiffs over the plaint property and for setting aside an order passed by revenue authorities directing subdivision of the property separately as five cents and one cent. Plaint schedule property is five cents over which rival claim was set up by church. With respect to one cent adjoining the plaint property and purchased by the national organisation under a separate registered sale deed, there is no challenge to its title. At the instance of the church, when steps were taken to demarcate the **F.A.O.NOS.139, 147 & 148 OF 2011** **3** five cents excluding the above one cent and survey measurement was done through the authorities, plaintiffs laid the suit for injunction, and, later, when survey authorities passed orders for subdividing the properties, the suit was amended seeking declaration of plaintiffs' title and for setting aside the orders of subdivision of plaint property. State and some public officials including survey authorities are the defendants in that suit. Those defendants resisted the suit contending that five cents out of six cents in the plaint property belonged to the CSI Church and it was paying revenue charges thereof. According to these defendants after conducting enquiries as per the rules and carrying out survey measurements, decision was taken to demarcate the five cents separately from the rest of the property. Subdivision of the property into two, five cents and one cent, was effected and, thereafter, the suit had been instituted, was the case of these defendants contending that plaintiffs are not entitled to the reliefs canvassed. The other suit - O.S.No.254 of 1995 - was instituted against the CSI Church, rival claimant, by the plaintiffs seeking declaration of their title, **F.A.O.NOS.139, 147 & 148 OF 2011** **4** possession and injunction over the five cents of property. Suit claim was resisted by the defendant church setting forth a counter claim for declaration of its title and possession over that property. The Y.M.C.A which functioned in the property is not an independent organisation but one under the control of church and the five cents of property was purchased and revenue charges thereof are paid by the church was its case challenging the deed, Ext.A13, executed in favour of the 1[st] plaintiff, national organisation of Y.M.C.A, over the property by some persons who claimed to be the office bearers of the above association. Without the knowledge of church, a former secretary of the association, without authority, executed Ext.A13 transfer deed fraudulently in favour of the national organisation, and under that deed plaintiffs have not obtained any right over the property nor over the association which functioned under the church, was its case. A counter claim was raised in the written statement of this defendant (church) to declare its title over the five cents of land and for recovery of possession, setting aside the sale deed over the property in favour of the national **F.A.O.NOS.139, 147 & 148 OF 2011** **5** organisation. 4. Suits were jointly tried and both the contesting parties examined a number of witnesses and also produced plethora of documentary evidence to substantiate the respective rival claim canvassed over the disputed five cents of property. On the side of plaintiffs, PWs.1 to 5 were examined and Exts.A1 to 131 were marked, and for defendants, DWs.1 to 5 and Exts.B1 to B21 were marked. Commission reports and plans collected were exhibited as Exts.C1 to C4. Learned Munsiff after appreciating the materials produced upheld the claim of plaintiffs and decreed both the suits in their favour and dismissed the counter claim of the contesting defendant church. Against the decree passed in O.S.No.141 of 1995 declaring the title and possession of plaintiffs over the plaint property and setting aside the orders passed and plan prepared by survey authorities effecting subdivision of the property into two, the defendants in that suit - State and public officials - preferred the appeal R.F.A.No.188 of 2004, and against the decree passed in O.S.No.254 of 1995 **F.A.O.NOS.139, 147 & 148 OF 2011** **6** declaring the right, title and possession of the plaintiffs over plaint property and granting them injunction, and, also dismissal of the counter claim, the defendant in that suit filed the other two appeals, A.S.No.183 of 2004 and A.S.No.184 of 2004 respectively. All the three appeals, after being heard together, were disposed under the common judgment by the learned Sub Judge, by which the decrees passed in favour of plaintiffs were set aside and dismissal of the counter claim of defendant, church was reversed, and the cases were remanded for fresh disposal with some directions. F.A.O.Nos.139 of 2011 and 147 of 2011 are against the orders of remand passed in A.S.No.183 of 2004 and 184 of 2004 setting aside decree passed in O.S.No.254 of 1995 and reversing the dismissal of the counter claim in that suit. F.A.O.No.148 of 2011 is against the order of remand passed in R.F.A.No.188 of 2004 setting aside the decree passed in the suit O.S.No.141 of 1995. 5. I heard the counsel on both sides. Order of remand passed by the court below is impeached by learned counsel for **F.A.O.NOS.139, 147 & 148 OF 2011** **7** appellants as patently unsustainable and erroneous in law and facts. None of the defendants has raised any plea of fraud on registration to impeach Ext.A13 sale deed executed in favour of plaintiffs, and, when that be so, the order of remand directing for framing an additional issue whether the sale deed is hit by Section 28 of the Registration Act, for short, the 'Act', was totally uncalled for, is the submission of counsel. Materials produced in the case, both oral and documentary, which were found sufficient by the trial court to decree the suits were not at all looked into nor appreciated by the first appellate court while ordering remand directing for framing additional issue as indicated, is the further submission of the counsel to assail its order. Even assuming that any question over the validity of Ext.A13 sale deed was canvassed by the church at the time of hearing of appeals on the available materials in the suits that could have been determined by the first appellate court, but, that was not done, and the cases were remanded directing framing of additional issues and further trial, and that was improper and unsustainable, is the further submission of counsel. On the other **F.A.O.NOS.139, 147 & 148 OF 2011** **8** hand, adverting to the properties covered by the transfer under Ext.A13 sale deed, learned counsel for respondent church contended that fraud on registration was practiced in registering that deed at a registry which had no jurisdiction to register the sale. In such circumstances the order of remand passed by the first appellate court directing for framing an additional issue in the suits, on that question, after setting aside the decrees passed, is proper and valid, and it does not warrant interference. Previously church has filed a suit impeaching Ext.A13 sale deed and, later, it was withdrawn with liberty to file a fresh suit; and, in the written statement filed by the church setting forth a counter claim validity of Ext.A13 sale deed was challenged on the grounds raised in the previous suit and one among them was that the deed was vitiated by fraud on registration and thus hit by Section 28 of the Act, according to the counsel. When that be so, according to the learned counsel, it cannot be contended that no challenge was raised impeaching Ext.A13 sale deed as hit by Section 28 of the Act, to assail the direction given for framing an additional issue on that question and remanding the case for **F.A.O.NOS.139, 147 & 148 OF 2011** **9** fresh trial by the court below. Similarly, where the dispute over five cents of property in which the Y.M.C.A functioned rested on the question whether that association at Nellikakuzhi functioned under the church, or as part of the national organisation, 1[st] plaintiff in the suit, framing an issue thereof, it required to be resolved, is the submission of counsel. Despite the specific case of church that the association is an entity under its control, no issue thereof was framed by the trial court. In such circumstances the directions given by the appellate court for framing additional issues on that question, and also over the fraud on registration impeaching Ext.A13 sale deed, cannot be found fault with, submits the counsel. 6. Learned counsel for respondent church has relied on **Gopalakrishnan v. Srinivasan (2010 (2) KLT 216)** and **Geetha Viswanathan and Others v. Sasidharan (2010 (4) KHC 553)** and also an unreported decision rendered by judgment dated 4[th] December, 1991 in A.S.No.191 of 1986 **(Vidyadharan Devadas v. Vidyadharan Sugathan and** **F.A.O.NOS.139, 147 & 148 OF 2011** **10** **others),** which was affirmed by judgment dated 28[th] August, 1995 in A.F.A.No.107 of 1992, producing copies of those judgments, to contend that where a property which is not situated within the Sub registry is fraudulently included for getting the document registered in that Sub registry the deed registered is vitiated as it is a fraud on law of registration. Learned counsel also relied on **Karunakaran v. Bhaskara Panicker and others (1999 (2) KLJ 695)** to contend that proper issues on the pleadings of parties have to be raised, to resolve the controversy between the parties, and if that is not done the court will be disabled from considering the real issue. Reliance is also placed on **Madhukar and others v. Sangram and others (AIR 2001 SC 2171)** and **Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. Shukla and Brothers ((2010) 4 SCC 785)** to contend that when a final hearing of the case is done all essential questions involved have to be answered with definite findings. In the first appeal where the appellate court is having jurisdiction to decide both questions of law and **F.A.O.NOS.139, 147 & 148 OF 2011** **11** facts afresh, and the court below in such appeals having been satisfied that vital issues on the controversies involved have not been raised and considered, the order of remand passed directing framing of issues as additional issues and for considering them, after setting aside the decrees and remanding the cases, is proper and valid. 7. After going through the records of the cases with reference to the submissions made by counsel on both sides, I find the order of remand passed by the learned Sub Judge cannot be sustained. The real issue between the parties was the rival claim of title over five cents of property, plaint schedule in the two suits, in which an association Y.M.C.A functioned. The church claimed that the Y.M.C.A was part of church activity and it functioned as an entity under its exclusive control in the property in the five cents purchased with its funds inclusive of the sum given by the owner of the building where it functioned earlier. Plaintiffs have contended that the Y.M.C.A forms part of the national organisation 1[st] plaintiff and under Ext.A13 sale **F.A.O.NOS.139, 147 & 148 OF 2011 12** deed, the title over the five cents of property also vested with the national organisation. Both sides have let in oral and documentary evidence to substantiate the rival claim canvassed over the five cents of property. After considering the pleadings and evidence the trial Judge has upheld the claim of plaintiffs and granted them decrees in both suits as canvassed. Those decrees have been interfered by the first appellate court without appreciating the pleadings and evidence of the cases, but, solely on the ground that proper issues have not been framed in the suit for adjudication. Directing the framing of additional issues as suggested and also further trial, disposal of suits afresh was ordered setting aside the decrees and remanding the cases. 8. Ext.A10, copy of which is Ext.B2, is the title deed under which five cents of property was purchased. Admittedly, the association Y.M.C.A previously functioned in a building situated in another property and a sum of Rs.2,000/- was provided by the owner of that property, probably, for vacating that building. With that sum the property under Ext.A10 was purchased and in **F.A.O.NOS.139, 147 & 148 OF 2011** **13** that deed it is stated the purchase was for ' YMCA'. That is the sheet anchor on which the church claimed that it has got exclusive right over the five cents of property. The question whether the Y.M.C.A functioned under the supervision and control of the national Y.M.C.A or the church and if any acquisition was made for the association, who among the rival claimants, church or national organisation, could claim title required to be considered in determining the proprietary title over the property purchased under Ext.A10. Subsequently, under Ext.A13 sale deed, executed by the Secretary of the association, transfer of five cents was made in favour of the national organisation. That deed has been impeached by the church filing a suit, which was later withdrawn with liberty to file a fresh suit. In the written statement in O.S.No.141 of 1995, the defendant church has stated the grounds on which Ext.A13 was challenged in its suit, which included a challenge of fraud on registration. That written statement was filed at a time when the suit filed by church as plaintiff was pending. Written statement filed in O.S.No.141 of 1995 does not reflect any specific **F.A.O.NOS.139, 147 & 148 OF 2011** **14** challenge over fraud on registration to impeach Ext.A13 sale deed, but, only of making a reference to the challenges canvassed to assail that deed in its pending suit. That suit was later withdrawn by church with liberty to institute a fresh suit on the same cause of action. No fresh suit was filed by the church, but, it pursued its claim over the five cents of property impeaching Ext.A13 sale deed setting forth a counter claim in the suit (O.S.No.141 of 1995) filed by plaintiffs. In the written statement in such suit church has referred to the challenges canvassed in its previous suit which was pending at that time, to impeach Ext.A13 sale deed, is not at all sufficient to hold that such challenges have been pressed in the present suit to resist the claim of plaintiffs. No challenge has been made in the present suit by the defendant church to impeach Ext.A13 as vitiated by fraud on registration other than making reference to the challenges raised in the suit already instituted by it to set aside that deed. When no plea of fraud on registration over Ext.A13 sale deed had been set up in the written statement of the defendant church, but, only of referring it as one among the **F.A.O.NOS.139, 147 & 148 OF 2011** **15** challenges raised in its suit already filed questioning the validity of that deed, no question of raising an issue over fraud on registration of Ext.A13 sale deed would arise. The first appellate court without noticing the absence of specific plea of fraud on registration over Ext.A13 in the written statement of the church has found fault with the trial court for not framing an issue thereof, and has directed raising an additional issue thereof while remanding of the case. With respect to the non-framing of issue whether second plaintiff is an independent organisation or not, by the trial court, which too was taken exception by the first appellate court, I find that the approach taken and reasoning made by learned Sub Judge that a separate issue thereof has to be raised to resolve that controversy is erroneous. Rival claim over the five cents of property has been set up by the plaintiff and church. Second plaintiff for the time being is represented by the first plaintiff, a national organisation, in the suit. Suit filed by the defendant church impeaching Ext.A13 sale deed had been withdrawn with liberty to file a fresh suit. No fresh suit has been filed, but, it has set up by a counter claim over the disputed **F.A.O.NOS.139, 147 & 148 OF 2011** **16** property. Such being the case, the question whether second plaintiff functioned as an entity under the exclusive control of church or not, and if so, what impact that would have in challenging Ext.A13 sale deed can be considered without framing any separate issue, but, in the adjudication over the question of title canvassed by the rival claimants. 9. After arriving at the conclusion that some additional issues are to be framed to resolve the real issue in the suits and making some observations over some of the documentary evidence tendered, learned Sub Judge has upset the findings entered by the trial Judge, reversed the decrees, and remanded the suits with direction to frame additional issues and for disposal of the cases afresh. I refrain from adverting to the pleadings and documentary and oral evidence tendered in the case since I find the order of remand has to be set aside and the appeals have to be heard again by the court below for disposing them on merits. Judicial pronouncements cited by the learned counsel for the respondent church touching upon the question **F.A.O.NOS.139, 147 & 148 OF 2011** **17** over fraud on registration and also powers of the appellate court do not require to be discussed in the facts of the case and also conclusion formed as above that the appellate court erred in ordering remand and that it has to hear the appeals afresh. 10. I make it clear that it is open to the church to raise whatever challenges available to impeach Ext.A13 sale deed both on facts and law including a challenge of fraud on its registration. How far and to what extent such a challenge if canvassed of without such a plea being raised in the written statement can be given consideration has to be decided with reference to the totality of facts and circumstances presented on the pleadings, evidence and materials tendered in the case. With other vitiating circumstances, if any, in the execution of Ext.A13 sale deed, it may have significance in evaluating the validity of that deed. But, where no specific plea of fraud on registration was raised in the written statement of the defendant, the question of raising an additional issue thereof and remand of the case for such purpose, as directed by the appellate court, is **F.A.O.NOS.139, 147 & 148 OF 2011** **18** impermissible. 11. Setting aside the order of remand passed under the common judgment in A.S.No.183 of 2004, A.S.No.184 of 2004 and R.F.A.No.188 of 2004, learned Sub Judge is directed to take back the appeals on his file and dispose them on merits taking note of the observations made above and in accordance with law. Parties are directed to appear before the Sub Court, Neyyattinkara through their counsel on 06.01.2014. Learned Sub Judge shall give top priority for hearing and disposal of the appeals and at any rate the appeals shall be disposed expeditiously within a period of six months from the date of receipt of a copy of this judgment. Parties are directed to suffer their costs in all these appeals. Appeals are allowed as indicated above. ## **S.S.SATHEESACHANDRAN JUDGE** **prp**