N.S.S. Karayogam, Valiyavila vs Ramavilasom Grandhasala, K.K. Parameswaran Nair & P. Radhakrishnan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN MONDAY, THE 12TH DAY OF MARCH 2012/22ND PHALGUNA 1933 SA.No. 1155 of 1989 (D) ----------------------AS.107/1983 of II ADDL.SUB COURT,TRIVANDRUM OS.555/1980 of PRL.M.C.,TRIVANDRUM ## APPELLANT/APPELLANT/PLAINTIFF ------------ N.S.S. KARAYOGAM, VALIYAVILA NO.620, ARAMAD VILLAGE, REPRESENTED BY ITS PRESENT SECRETATY, SASIKUMAR,VALIYAVILA BY ADV.SRI.P.G.PARAMESWARA PANICKER (SR.) RESPONDENTS/ RESPONDENTS/DEFENDANTS: -------------- 1. RAMAVILASOM GRANDHASALA, VALIAVILA, THIRUMALA TRIVANDRUM -6, REPRESENTED BY ITS SECRETARY. 2. K.K. PARAMESWARAN NAIR, KRISHNA VILAS, T.C.8/124, VATTIYOOR KAVU, TRIVANDRUM. 3. P.RADHAKRISHNAN, USHA SADANAM, T.C.8/230, TRIVANDRUM. R1 AND R2 BY ADVS. SRI.S.V.RAJAN & ADV. SRI.MVS.NAMBOOTHIRY SRI.P.RADHAKRISHNAN (PARTY) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kkj ## P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - S.A.No.1155 of 1989 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of March, 2012 ## J U D G M E N T The plaintiff, which is an association called NSS Karayogam laid a suit for declaration of title and recovery of possession on the strength of title of the suit property. 2. The plaint schedule property originally belonged to one Velayudhan Pillai Sivarama Pillai who was a philanthropist and who provided separate properties with building for running a Yuva Samithi and Grandhasala. The property involved in these proceedings is the property which was given for running Yuva Samithi. By Ext.A1 dated 19.08.1114 M.E., the said Sivarama Pillai has given plaint schedule property to Yuva Samithi with a condition that in case the Yuva Samithi become defunct, the property will be revert back to him. According to the plaintiff, Yuva Samithi became defunct, Ext.A1 was surrendered and the plaint schedule property reverted back to Sivarama Pillai. Thereafter he executed Ext.A2 document dated -:2:- ## S.A.No.1155 of 1989 03.11.1979 ,whereby he gave the property to the plaintiff. Ever since then, the plaintiff has been in possession and in absolute enjoyment of the property and the building. However on 22.04.1980 the defendants 2 and 3 along with their partisans broke open the door of the building and occupied the same. Claiming that the plaintiff has got absolute possession and title over the suit property, the suit was laid. 3. The defendants resisted the suit. Their main contention was that Yuva Samithi had not become defunct and continued to exist though in another form. They contended that Yuvasamithi thought of having a Sports wing and therefore a sports wing was started under the name United Sports Club. It was earlier known as Yuva Samithi and United Sports Club and later association came to be known as United Sports Club. United Sports Club thereafter thought it fit to associate themselves with Grandhasala and their association with Ramavilasom Grandhasala resulted in naming the body as Ramavilasom ## -:3:- ## S.A.No.1155 of 1989 Grandhasala and United Sports Club. They also contended that property had not been surrendered as alleged by the plaintiff and it is continued to be in the possession of Yuva Samithi and subsequently of United Sports Club which was a limb of Yuva Samithi. On the basis of these contentions, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 6 and Exts. marked as Exts.A1 to A3 from the side of the plaintiff. The defendants had DWs 1 to 3 examined and had Exts.B1 to B7 marked. Exts.C1 and C2 are the commissioner's report and plan. Exts.X1 and X2 are third party Exts. 5. The trial court found that the clause of reversion in Ext.A1 is invalid and also that Yuva Samithi had not become defunct and dismissed the suit. The matter was carried in appeal as A.S.No.107 of 1983. The lower appellate court confirmed the judgment and decree of the trial court. The matter was brought up before this Court in second appeal. ## -:4:- ## S.A.No.1155 of 1989 By judgment dated 19.12.1998, the same was allowed and a decree was granted in favour of the plaintiff. The matter was carried as Civil Appeal before the Apex Court by the defendants namely Civil Appeal No.3269 of 2000 **.** That appeal was allowed and the matter was remanded to this Court on the ground that this Court has failed to raise substantial question of law for decision and there was violation of Section 100 of CPC. 6. Thereafter this Court by judgment dated 1.10.2001 after referring to the questions of law formulated for decision again allowed the second appeal and granted decree in favour of the plaintiff. The matter was carried as Civil Appeal before the Apex court as Civil Appeal No.6588 of 2002. The Apex Court again allowed the appeal on the ground that this Court had interfered on questions of fact, which was not proper, unless the entire documents have been considered, especially Exts.B1 to B7, and only on finding that the conclusions of the courts below were perverse or unwarranted by the evidence on record this ## -:5:- ## S.A.No.1155 of 1989 ## Court could have been interfered with the findings. However, the Apex Court observed as follows:- If the High Court finds that the findings of the First Appellate Court that the Yuva Samithi is still functioning is based on no evidence or is perverse then it should remand the matter to the First Appellate Court for a re-consideration of this question. Holding so, the appeal was allowed and the matter was remanded to this Court. This is how this second appeal comes up again before this Court. ## 7. Notice is seen issued on the following questions of law:- a) Whether Ext.A1 is a transfer with conditions superceded? b) Is not condition for reversion with the donor valid in law? c) Would the gift ensure to the benefit of any organisation other than Yuva Samithi mentioned therein? d) Could the United Sports club claim as donee under Ext.A1? e) What are the presumptions available on production of original gift Ext.A1 by the plaintiff? f) Would it not lead to the presumption that Yuva Samithi become defunct? g) Would the facts and circumstances lead to the inference that United Sports Club is the successor or the same as Yuva Samithi? h) Is not Ramavilasam Grandha Sala and United Sports Club an organisation other than Yuva Samithi mentioned in Ext.A1? ## -:6:- ## S.A.No.1155 of 1989 8. While disposing of the appeal on the earlier occasion, this Court had come to two definite conclusions. They are:- (1) Clause of reversion contained in Ext.A1 is valid and (2) Yuva Samithi had become defunct and property was surrendered to Sivarama Pillai. As far as the first issue is concerned, the Apex Court has not interfered with the finding of this Court that reversion clause contained in Ext.A1 is valid in law. However, the Apex Court had occasion to interfere with the judgment and decree of this Court on the ground that this Court ought not to have upset the findings of fact entered into by the lower appellate court, which was the final court on facts. Unless it was shown that the findings are either perverse or not justified with the evidence on record. 9. The question that therefore arises for consideration now is whether the findings of the lower appellate court that Yuva Samithi has not become defunct is based on evidence adduced in the case. 10. After remand, when the matter taken up for ## -:7:- ## S.A.No.1155 of 1989 hearing it was seen that Ext.B1 to B4 were not available in the file. The Apex Court had directed to specifically consider Exts.B1 to B7 in order to ascertain whether the claim of the plaintiff that Yuva Samithi has become defunct is justified. On verification, this Court was given to understand that Exts.B1 to B4 had been taken back by the defendants. This Court therefore addressed the lower court to have the said documents returned by the defendants and forward the same into this Court. The trial court after making several attempts to get back the documents informed this Court that in spite of the best efforts made by the said court, the defendants did not produce the documents or respond to the notice issued by the trial court. Ultimately this Court, directly issued notice to the defendants asking them to produce Exts. B1 to B4 before this Court, so as to enable this Court to go through those documents in order to enter a decision in the case. In spite of receipt of notice, the defendants chose not to respond and the result is that this Court is handicapped by the non- -:8:- ## S.A.No.1155 of 1989 availability of Exts.B1 to B4 in deciding the case. 11. The donor was examined as PW2. He spoke about the transaction by which he gave the property to Yuva Samithi and the surrender of the same. He also stated that later Yuva Samithi has become defunct. He then spoke about the handing over of the property to the plaintiff as per Ext.A2 document. 12. Both the courts below were of the opinion that Ext.A1 was an outright settlement deed and clause of reversion was invalid in law. That findings cannot be sustained in view of the earlier finding of this Court that the reversion clause contained in Ext.A1 is perfectly valid and binding and that has not been interfered by the Apex Court. 13. The case put forward by the contesting defendants is that Yuva Samithi had not become defunct as alleged by the plaintiff and continued to function even as on the date of the suit. The case of the defendants is that Yuva Samithi decided to have a wing relating to sports activities and United Sports Club was started. Thereafter the association ## -:9:- ## S.A.No.1155 of 1989 was known as Yuva Samithi and United Sports Club. Further case is that, later on they associated themselves with Ramavilasom Grandhasala and then came to be known as Ramavilasom Grandhasala and United Sports Club. Their case was accepted by the courts below based on Exts.B1 to B7. 14. It is not clear from the written statement of the defendants that what exactly is the case they have. In one portion of the written statement it is stated that Yuva Samithi started a sports wing and it came to be known as United Sports Club. In another portion what is stated is that the United Sports Club was attached to the Grandhasala and thereafter came to be known as Ramavilasom Grandhasala and United Sports Club. 15. Sri.P.G. Parameswara Panickar, the learned counsel appearing for the appellant contended that in the light of the fact that the defendants have refused to produce Exts.B1 to B4 their defence is liable to be struck and they need not be heard in the matter. In support of his -:10:- ## S.A.No.1155 of 1989 contention the learned counsel relied on the decisions reported in 1988(1) KLT 883, and **Punnoose v. Mammi Amma (1962 KLT 354)** . The principle laid down in the decision will be referred to a little later. 16. The case put forward by the defendants appears to be that after Yuva Samithi started a sports wing and later it merged with Ramavilasam Grandhasala. Admittedly there is nothing to show that Yuva Samithi started a sports wing as United Sports Club and they had decided to associate themselves with Ramavilasom Grandhasala. 17. One cannot omit to note that Ext.A1 which is the document by which Yuva Samithi started functioning and the property was given by Sivarampillai had been returned to the donor and there is nothing to show that Yuva Samithi thereafter had exercised any manner of right over the property. In the light the fact of production of Ext.A1 by the plaintiff and also production of Ext.A2 which is proved by the plaintiff, the burden is on the defendants to show that Yuva Samithi continued to exist in any form whether by the ## -:11:- ## S.A.No.1155 of 1989 name United Sports Club or Ramavilasom Grandha Sala and United Sports Club. 18. The evidence in the case shows that Yuva Samithi and Ramavilasom Grandhasala are two separate and distinct entities and if as a matter of fact, there were a merger of the two entities, it should have been evidenced by documents. 19. All that the defendants relied is Ext.B1 to B7. Among them Exts.B1 to B4 are not available before this Court for consideration. Ext.B5 to B7 are seen to be entries in a ledger said to have been maintained by United Sports Club. Ext. B5 is an entry dated 04.02.1976 seen in Page No.35 states that some amount has been expended for thatching Yuva Samithi building. Ext.B6 is another entry in page No.95 dated 05.12.1976. In that entry amount is seen to have been expended for thatching the building of United Sports Club. Ext.B7 at page No.181 is the signature of an official of the Grandhasala having seen in the register. These are all the documents that are available before this ## -:12:- ## S.A.No.1155 of 1989 Court in support of the claim made by the defendants. A perusal of Ext.B5 clearly shows that it was subsequently inserted by the defendants. It is also noticed that while Ext.B5 mentions Yuva Samithi shed, Ext.B6 mentions United Sports Club. Since Exts. B1 to B4 are not available, this court is not in a position to ascertain the probative value of those documents. 20. Here one may take note of the decisions relied on by the learned counsel for the appellant. In **Punnoose v. Mammi Amma (1962 KLTI 354),** an identical situation arose when one of the parties had taken back the documents and did not produce the same. This Court had occasion to hold as follows:- As the entire documentary evidence on the side of the plaintiffs, on which their claim has necessarily to rest, been removed from court while the trial of the case through its appellate stages was awaited, and not been put back thereafter, even after express notice for their return for purposes of hearing the Second Appeal in this Court, the plaintiffs are guilty of disobedience of an order of the court, and such disobedience impedes the course of justice by making it more difficult for the court to ascertain the truth of -:13:- ## S.A.No.1155 of 1989 facts in the cause and is therefore an act of grave contempt on the part of the plaintiffs-respondents. No motion has been made for purging their contempt. In the circumstances I am constrained to decline to hear them in this Second Appeal. ## 20. In decsion reported in **Parukutty Amma v. Thankamma Amma (1988(1) KLT 883)** it was held as follows:- 4 . The short question that has to be decided in the case is whether a court has power in a circumstance when the court finds that a party to a suit is deliberately disobeying the orders of the court, to strike off bis defence. The second question that has to be considered is whether such a circumstance has been found in the case. An incidental question is when a court finds such a circumstance whether this court can re-investigate that circumstance exercising its revisional power. In fact, I asked the counsel for the revision petitioner whether under any circumstance the court can strike off the defence of a defendant or the contentions raised by the plaintiff. The counsel submitted before me that there is no specific provision other than Order II R.21 and the striking off the defences under O.6 Rule, 16. True, the code does not give by a rule or provide a section to meet a contingency which I have indicated earlier. S.151 provides the saving of all inherent powers of the court. The court possess always inherent power apart from the specified powers given by the Code. 21. In fact there is no reason as to why the principle laid down on in the above decision should not be applied to ## -:14:- ## S.A.No.1155 of 1989 the facts of the case. However in the light of the remand order made by the Apex Court, if it is found by this Court that the findings of the lower appellate court that Yuva Samithi has not become defunct is unsupported by the records, this Court has to remand the matter to the lower appellate court for reconsideration of the issue. Exts.X1 and X2 also can be of no help to the defendants. That relates to grant given to the Grandhasala. Ext.X1 in fact relates to Ramavilasom Grandhasala and no where in Exts.X1 and X2, there is any mention of Yuva Samithi at all. 22. Both the courts below have wrongly cast the burden on the plaintiff to show that Yuva Samithi had become defunct. It has already been noticed that in the light of evidence adduced by the plaintiff, the burden was on the defendants to show that Yuva Samithi continued to exist as such or in some other form as contended by them. 23. If as a matter of fact, Yuva Samithi continued to exist, defendants must be in possession of the documents to ## -:15:- ## S.A.No.1155 of 1989 establish the same. In fact their case is that a sports wing had been started and thereafter the association was known as Yuva Samithi and United Sports Club. There is absolutely no evidence in that regard at all. Their further case is that United Sports Club then decided to associate itself with Ramavilasom Grandhasala and thereafter the association came to be known as Ramavilasom Grandhasala and United Sports Club. Except for the mere statement in the written statement, there is absolutely no evidence at all to show that their claim is justified or is true. At any rate, even going by the evidence on record, there is nothing to show that original Yuva Samithi exists as such. These aspects have been omitted to be noted by the lower appellate court and the lower appellate court was guided by the fact that since the burden was on the plaintiff and since the plaintiff did not show that Yuva Samithi had become defunct, nothing more to be considered and the suit was dismissed. 24. As already noticed both the courts below have -:16:- ## S.A.No.1155 of 1989 wrongly cast the burden on the plaintiff and proceeded on that basis. Documents now available before this Court namely Exts.B5 to B7 are totally insufficient to come to the conclusion that Yuva Samithi exists in some form or other. How far Exts.B1 to B4 could have advanced the claim of the defendants is a different question. That cannot be decided by this Court now, since those documents are not available before this Court. It is therefore clear that the finding of the lower appellate court that Yuva Samithi had not become defunct is clearly unsustainable both in law and on facts. However in the light of the direction given by the Apex court, this Court has no option but to remand the matter for reconsideration by the lower appellate court to redetermine the issue as to whether the Yuva Samithi in its original form or in some other form exists as claimed by the defendants. In the result, this appeal is allowed, the impugned judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and the ## -:17:- ## S.A.No.1155 of 1989 in the light of what has been stated above. The lower appellate court shall give due consideration for the decisions cited by the learned counsel for the appellant which has been referred in this judgment. Parties shall appear before the lower appellate court on 11.04.2012. The lower appellate court may make every endeavour to dispose of the appeal as expeditiously as possible, at any rate, within a period of three months from the date of re-opening of the court after summer vacation. P.BHAVADASAN, JUDGE kkj