P.K. Bhaskaran (Died) LRS Impleaded v. Janardhanan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** ## **MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, 1944** ## **RSA NO. 1005 OF 2013** **AGAINST THE ORDER/JUDGMENT IN OS 249/2005 OF MUNSIFF COURT, PATHANAMTHITTA** ## **AS 121/2010 OF ADDITIONAL DISTRICT COURT,PATHANAMTHITTA** ## **APPELLANT/APPELLANT/PLAINTIFF:** |**1**|**P.K.BHASKARAN [(DIED)LRS IMPLEADED]**| |---|---| ||**AGED 71 YEARS**| ||**KAVINTEMEMURIYIL, NELLIKKALA, KARAMVELI MURI, MALLAPPUZHASSERI**| ||**VILLAGE, KOZHENCHERRY-689 643.**| |**ADDL.**|**P.K.PONNAMMA,**| |**APPELLANT**|**AGED 69 YEARS**| |**NO.2**|**W/O.P.K.BHASKARAN (LATE), RESIDING AT KAVINUMEMURIYIL, NILLIKALA**| ||**P.O., KARAMVELY,PATHANAMTHITTA-689 693.**| |**ADDL.**|**SEENA BHASKAR,**| |**APPELLANT**|**AGED 35 YEARS**| |**NO.3**|**D/O.P.K.BHASKARAN (LATE), RESIDING AT KAVINUMEMURIYIL, NILLIKALA**| ||**P.O., KARAMVELY,PATHANAMTHITTA-689 693.**| ||**(LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE IMPLEADED AS**| ||**ADDL.APPELLANTS 2 AND 3 AS PER ORDER DATED 16.11.2018 IN**| ||**IA.1/2018.)**| ||**BY ADVS.**| ||**K.JAJU BABU (SR.)**| ||**M.U.VIJAYALAKSHMI**| ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** |**1**|**JANARDHANAN**| |---|---| ||**AGED 60 YEARS**| ||**KUMARABHAVANAM VEEDU, NELLIKKALLA, KARAMVELI MURI,**| ||**MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY, PIN-689 643.**| |**2**|**SADANANDHAN**| ||**AGED 57 YEARS**| ||**VADAKKEMALAYIL, NELLIKKALLA, KARAMVELI MURI, MALLAPPUZHASSERY**| ||**VILLAGE, KOZHENCHERRY, PIN-689 643.**| |**3**|**VIJAYAN**| ||**AGED 57 YEARS**| ||**DEEPU NIVAS, NELLIKKALLA, KARAMVELI MURI, MALLAPPUZHASSERY**| ||**VILLAGE, KOZHENCHERRY, PIN-689 643.**| |**4**|**SALIM (DIED)**| ||**MARAMKOLLIL VEEDU, NELLIKKALLA, KARAMVELI MURI, MALLAPPUZHASSERY**| ||**VILLAGE, KOZHENCHERRY, PIN-689 643.**| |**5**|**THE PRESIDENT**| ||**NADUVATHU VILLANKAVU, DHARMASASTHAKSHETHRA SAMITHI, NELLIKKALLA,**| ||**KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY,**| ||**PIN-689 643.**| |**6**|**THE SECRETARY**| ||**NADUVATHU VILLANKAVU, DHARMASASTHAKSHETHRA SAMITHI, NELLIKKALLA,**| ||**KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY,**| ||**PIN-689 643.**| R.S.A.No.1005/2013 **2** - **7 THE TREASURER NADUVATHU VILLANKAVU, DHARMASASTHAKSHETHRA SAMITHI, NELLIKKALLA, KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY, PIN-689 643.** - **8 PUSHPAKUMAR AGED 47 YEARS THAMARASSERIL, NELLIKKALLA, KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY, PIN-689 643.** - **9 SWAPNA AGED 42 YEARS MARAMKOLLIL VEEDU, NELLIKKALLA, KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY, PIN-689 643.** - **10 SOBHANA SAJEEV AGED 38 YEARS KUZHIKKALAYIL VEEDU, NELLIKKALLA, KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY, PIN-689 643.** - **11 PRAMODKUMAR AGED 38 YEARS THERAKAMNILKKUNNATHIL, NELLIKKALLA, KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY, PIN-689 643.** - **12 SUBI AGED 41 YEARS PARAKALAYIL PUTHEN VEEDU, NELLIKKALLA, KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY, PIN-689 643.** - **13 PUSHPAHASAN AGED 52 YEARS THARAYASSERIL, NELLIKKALLA, KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY, PIN-689 643.** - **14 E.K.SADANANDHAN AGED 62 YEARS THARAYASSERIL, NELLIKKALLA, KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY, PIN-689 643.** - **15 VIJAYAN AGED 62 YEARS KUZHIKALAYIL VEEDU, NELLIKKALLA, KARAMVELI MURI, MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY, PIN-689 643. BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX** ## **OTHER PRESENT:** ## **JACOB P ALEX** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.11.2022,** **THE COURT ON 05.12.2022 DELIVERED THE FOLLOWING:** R.S.A.No.1005/2013 **3** ## JUDGMENT This appeal has been directed against the judgment and decree in A.S.No.121/2010 on the file of Additional District Court, Pathanamthitta which in turn arise out of the judgment and decree in O.S.No.249/2005 on the file of Munsiff's Court, Pathanamthitta. 2. Plaintiff is the appellant. (The parties hereinafter be referred as per their status before the trial court). The suit is one for fixation of boundary and injunction. The plaint schedule property was obtained by the plaintiff as per Ext.A1 Sale Deed. There is a grove (Kavu) on the central part of the plaint schedule property and there are also rubber trees standing in the schedule property. The entire property covered by Ext.A1 document has been described as plaint item No.1 and the portion where the grove situate is scheduled as item No.2, having an area of 5½ cents of property. Temple has been given for public worship before one year and the temple is named as Naduvathu Villamkavu Dharmasastha Temple. Naduvathu R.S.A.No.1005/2013 **4** Villamkavu Dharmasastha Temple Samithi also formed for the purpose of administration of the temple. The defendants are the office bearers of the committee formed for the management of the temple. So the plaintiff sought for fixation of boundary separating it from the temple property. Attempt of the plaintiff to construct a permanent boundary separating the property in his possession from the temple property was prevented by the defendants, thereupon the suit was filed. 3. Defendants filed written statement contending that 39 cents out of the plaint schedule item No.1 property belongs to the deity of Naduvathu Villamkavu Dharmasastha Temple. There existed a kavu in that property from time immemorial. Hindus of the locality used to worship in the Kavu. The plaintiff trespassed upon a portion of the plaint schedule property belonging to the deity recently. On 18.01.2003 a Deva prasnam was conducted and a new temple was constructed and a reconsecration of the deity was done. The property in which the temple is situated is dedicated to the deity which is an extent of 39 cents. 4. PWs 1 to 6 examined and Exts.A1 to A4 marked from the side of the plaintiff. DWs 1 and 2 examined and Exts.B1 to B8 marked from the side of the defendants. Exts.C1 to C5 were also R.S.A.No.1005/2013 **5** marked. 5. The trial court on evaluating the facts, circumstances and evidence adduced found that the suit is bad for non-joinder of necessary parties and plaintiff failed to prove the identity of the plaint schedule property and ultimately the suit was dismissed. The first appellate court on re-appreciating the facts, circumstances and evidence adduced, confirmed the judgment and decree passed by the trial court and dismissed the appeal. 6. Having lost before the two forums, the appellant/plaintiff approached this Court in second appeal. 7. On admission this Court formulated the following substantial question of law: Are the courts below justified in not granting a decree for fixation of boundary and for injunction when the title deed relied upon by the plaintiff would show the plaintiff's title over the said property? 8. Notice was issued to the respondents and they appeared through counsel. Lower court records were called for and both sides were heard. 9. According to the learned counsel for the plaintiff, the office bearers and the persons in charge of the administration of the temple have been impleaded as defendants and hence the R.S.A.No.1005/2013 **6** finding that the suit is bad for non-joinder of necessary parties for non-impleadment of the deity is not sustainable. He would also contend that the grove has come into existence for public worship only in the year 2003 when plaintiff dedicated it for public worship. Learned counsel relied on Deoki Nandan v. Murlidhar [AIR 1957 SC 133 : (1956) 1 SCR 756]. It is also his contention that though an idol is a juristic person under Hindu Law capable of holding property and the properties are endowed for the temple it can have no beneficial interest in the endowment and the true beneficiaries are the worshipers. It is further contented that when title, possession and enjoyment of the plaintiff over the plaint schedule property is undisputed the prayer for fixation of boundary as sought for by the plaintiff ought to have been granted. 10. Learned counsel for the defendants on the other hand would contend that the property of the grove and that of the plaintiff is not defined and hence a suit for fixation of boundary as sought for by the plaintiff by restricting the temple property as 5 and 1/2 cents is not permissible. It is also his contention that the original title deed Ext.A3 produced from the side of the plaintiff itself would prove that 39 cents of property has been R.S.A.No.1005/2013 **7** separately scheduled as kavu property and the rest of the property is described as the property in which kavu is situated. Separate boundaries are also given. Only in Ext.A1 when the plaintiff purchased the property a different description of 69 cents together has been made and after resurvey the plaintiff is making attempt to grab the property of the kavu. It is also his contention that since the plaintiff wanted to fix the boundary restricting the temple property as 5½ cents it is against the interest of the deity and hence deity is a necessary party. According to the learned counsel, the first appellate court has discussed the facts and law in a correct perspective and no substantial question of law emerges for consideration in this appeal. 11. Based on the rival contentions, the following points arise for consideration: - (I) Whether the suit is bad for non-joinder of necessary parties? - (II) Whether a suit for fixation of boundary is maintainable. ## 12. Point No.I : According to the learned counsel for the defendants, it R.S.A.No.1005/2013 **8** has come out in evidence that this kavu is a Sayambhu and is in existence from time immemorial and even the basic document of the plaintiff also describes the entire plaint schedule property as two items; (1) 39 cents as kavu property, and, (2) 30 cents as kaviruppu property. Plaintiff during cross examination admitted that the plaint schedule property has been described as kaviruppu property in Exts.A1 and A3 and the name of kavu is Naduvathu Villamkavu Dharmasastha Temple. He further categorically admitted that the kavu is in existence from time immemorial and there is a deity in the kavu and the present deity is 'Sasthavu'. He pleaded ignorance whether the deity is 'Sayambhu' and further admitted categorically that the rubber was planted in the scheduled property by his brother. Admittedly there was reconsecration in the year 2003. In this context learned counsel bring to my attention B.K.Mukherjea's Hindu Law of Religious and Charitable Trusts, Tagore Law Lectures Fifth Edition. Page No.154 para 4.5 states about images and their descriptions and it provides that images, according to Hindu autho-rities, are of two kinds: the first is known as Sayambhu or self-existent or self-revealed, while the other is Pratisthita or established. A Sayambhu or self-revealed image is R.S.A.No.1005/2013 **9** a product of nature, it is Anadi or without any beginning and the worshipers simply discover its existence. Such image does not require consecration of Pratistha. All artificial or man-made images require consecration. Page No.156 paragraph No.4.8 deals with reconstruction of purification of idols in case of defilement or destructions, which would state that reconstruction or purification of the image is ordained in cases where the image is mutilated, broken, burnt, fallen down or removed from its place or is defiled by a beast or even when hymns appropriate to other Gods are recited before it. Page No.158 para 4.10 provides that dedicated property vests in the idol as a juristic person and when property is given absolutely by a pious Hindu for worship of an idol, the property vests in the idol itself as a juristic person. 13. K.K.Menon v. Nataraja Moopanar [1956 KLT 175 (Trivandrum Bench)] was relied on, which arouse out of a suit filed for removal of Trustees, for rendition of accounts and for framing a scheme. In that decision the following passage from Bimal Krishna v. Iswar Radha Ballav [AIR 1937 Cal.338] is quoted, which reads thus: "It is perfectly true that in a matter in which the deity is R.S.A.No.1005/2013 **10** vitally interested the deity should be made a party and if the Shebaits have got any interest adverse to that of the deity it is necessary that the idol should be represented by a perfectly disinterested person as was indicated by Their Lordships of the Judicial Committee in the case mentioned above. Necessity, however, has got to be judged on the facts of each particular case and the controversies to which it gives rise. In 52 I.A. 245, the appellant claimed the right to remove the idol during his term of worship and Their Lordships held the will of the idol as regards location must be respected and the suit was remitted in order that the idol might appear by a disinterested person to be appointed by the court. In 60 I.A. 263, there was a suit for possession of a property upon which a Takurdalan was raised by the defendants and an idol called Sri Thakurji Maharaj was installed. The Privy Council held that they could not deal with the appeal in the absence of the idol whose interest arose under the Wakf and the case was sent back in order that the question might be decided in the presence of appropriate parties. In the present case it is admitted that none else except the parties to the suit are interested in the deity and it is not suggested that the deity's interest would in any way be affected by adjustment of the rights of management among the Shebaits inter se. Up to now, the preliminary decree had dealt only with one substantial question, namely as to whether upon the construction of the Ekrarnama, properties added to the debutter by a particular Shebait should remain under the exclusive management and control of his branch only. For this purpose, the presence of the deity is not necessary. The facts are somewhat similar to those in 33 C.W.N. 96, R.S.A.No.1005/2013 **11** where it was held by the learned Judges that the deity was not a necessary party to such a suit. At any further stage of the proceedings where the scheme would have to be finally approved of by the court it might feel the necessity of having the deity before it. In such circumstances it would be open to the trial court to direct that the deity should appear by a proper and disinterested person". 14. Reliance was placed on Govindan Nair v. Gopalakrishna Sharma [1988 (1) KLT 739] wherein it has been held that a Hindu idol is a juristic person and has juridical status with the power of suing and being sued. In paragraph No.7 it has been made clear that in a suit where relief claimed is for settlement of a scheme for administration of the temple properties there is no scope for contending that any of the properties did not or does not vest in the idol. But in suits where the right or title over the properties is questioned, the deity is a necessary party which could then be represented by a natural person having no interest or claim over such properties. 15. So in the present case since the suit has been filed by the plaintiff to fix the boundary of plaint item No.1 property restricting the property of kavu to 5½ cents which has been described as 39 cents in the basic deed by which the plaintiff R.S.A.No.1005/2013 **12** purchased the property is clearly adverse to the interest of the deity and hence the deity is a necessary party to the suit and in the absence of Deity in the party array the suit is bad for non joinder of necessary parties. ## - 16. Point No.2: It has come out from Ext.A3 the basic deed or the prior title deed of the plaint schedule property that the total 69 cents of property purchased by the plaintiff has been described as two items. The first item is 39 cents which is described as kavu purayidom and the second item is described as 30 cents kavirikkunna purayidom and the boundaries of item No.1 and item No.2 are differently shown. So also, the survey number of item No.1 is 230/3B and that of item No.2 is 230/3C. So obviously the two properties are distinctly described and shown in different survey sub-divisions as per the basic deed of the plaintiff. In Ext.A1 the property in survey number 230/3C 30 cents and 230/3B 39 cents, total 69 cents, has been described as Kavirikkunna purayidom and the improvements therein with a common boundary. So that obviously is not in tune with the basic document of the plaintiff. A survey commission was taken and R.S.A.No.1005/2013 **13** survey commission report and plan are marked as Exts.C3 and C3(b). The commissioner measured the property as per the resurvey measurement. Exts.A2 and A4 showed the resurvey number of the properties as 456/5-1 and the commissioner measured 1 acre 16 cents of land in survey No.456/5-1 and item No.1 property is further measured and located and its measurement is shown as 85 cents and Exts.A2 and A4 tax receipts showed that plaintiff is remitting tax for 1 acre of land in resurvey No.456/5-1. Whereas Ext.A1 title deed covers only 69 cents of property in total. So evaluating the above inconsistencies the courts below rightly found that the plaint schedule property is not properly identified. Ext.C1 series report of the commissioner would show that there are no identifying marks to separate plaint item number No.2 from plaint item No.1. The specific contention of the defendants is that, even before Ext.A1, 39 cents of land described as item No.1 in Ext.A3 has been dedicated to the public and hence plaintiff has not acquired any title over the entire 69 cents of property by virtue of Ext.A1. 17. Admittedly, there is no demarcating boundary separating plaint item No.1 property and item No.2 described in the plaint. In this context learned counsel bring to my attention R.S.A.No.1005/2013 **14** Bapputty @ Sydali & Ors. v. Cheriakutty @ Veerakhani Rawther [1990 (1) KLJ 218]. That was a case in which a suit was filed merely for fixation of boundaries and the trial court decreed the suit and the first appellate court confirmed the same in appeal and against which the defendants approached this court in Second Appeal and there were 25 items in plaint A schedule property and 19 items in B schedule property. In that decision, the learned Single Judge held that fixation of boundary cannot be a short cut to over-reach the contentions of the parties and fixing the boundaries and then directing the parties to settle their disputes including the correctness of the boundaries elsewhere is not a decision at all and ultimately the Second Appeal was allowed and the judgments were set aside. 18. Learned counsel also relies on Anjil Vellachi & Ors. v. Mamuni Bhaskaran @ Vattayil Bhaskaran [2009 (3)KHC 728 : 2009 (4) KLT SN 6 (C.No.6)] where a learned Single Judge of this Court again held that a suit for fixation of boundary cannot be a short cut or substitute for recovery of possession. That was also a case in which on measurement the plaintiff was found to be not in possession of the disputed plot though it was covered by the title deeds of the plaintiffs. So in that context it was held that the suit R.S.A.No.1005/2013 **15** merely for fixation of boundary without a prayer for recovery of possession is misconceived. So in the present case it has come out that the prior title deed of the plaint schedule property describes kavu property as item No.1 having 39 cents and kaviruppu property as item No.2 having 30 cents. The commissioner on local inspection could not find out any demarcating boundaries between temple and that of the plaintiff and plaintiff wanted to fix the boundary of the temple property restricting it to 5½ cents which is against his own basic title deed. 19. Learned counsel for the defendants also would contend that admittedly kavu situates time immemorial in a portion of plaint item No.1. In this context he would contend that DW2, Vasthuvidya Consultant was examined. He would contend that a compound of temple cannot be so arbitrarily fixed as has been sought for by the plaintiff. He drew my attention to the evidence of DW2 in this regard. DW2 deposed that there are some specifications and setback for constructing a compound wall to the temple. He also speaks about the deities of Ganapathy, Rakshas, Sarppakavu in this temple premises. 20. It is relevant in this context to refer to Hindu Law of R.S.A.No.1005/2013 **16** Endowments, Tagore Law Lectures, 1892 by late Pandit Prannath Saraswati. Chapter III of the Book deals with 'construction of temples'. It provides that erection of temple is the most common form of endowments prevalent amongst the Hindus in the present day. The religious merit acquired by the construction of a temple and its dedication to the worship of particular divinities is extolled in numerous sacred texts viz. Vishnu Rahasya, Agni Purana, Narasinha Purana etc. are extracted. In page No.74 and 75 a quote from Manasara translated by Ramraz in his essay, pp. 49 -51 is extracted, which read thus: “ ….... This is actually the case in the Manasara, as will be apparent from the following passage which is also useful as showing the special architectural rules laid down for the construction of temples:- "Temples consist of the garb'hagriha (the womb of the house), the anturala (the anti-temple), and the ard'ha-mantapa (the front portico). The diameter of the whole length of the building, including the walls, is to be divided into a four and-ahalf or six parts; and the garb'hagriha to take up two, two anda-half or three; the anturála, one and-a-half or two; and the ard'ha-mantapa, one or one and-a-half. “Temples on a large scale have three or four successive porticos attached to them in the front, which are called ard'ha-mantapa, mahá-mantapa, Sthápana-mantapa, urittyamantapa, &c. Ard'ha-mantapas are sometimes made broader R.S.A.No.1005/2013 **17** than the garb'hagriha, in which case the width of the former is either one and-a-half or twice that of the latter. In the event of the three compartments being of the same breadth, the length of the whole should be two and-a-half the breadth. x x x x x x x x x x x x” 21. Chapter VIII of the Book deals with institution of tanks and wells and Chapter IX deals with planting of trees. Chapter VII deals with property wholly dedicated for pious uses wherein it is provided that property dedicated for pious uses has been made impartible under the Hindu law and from the fundamental idea of its not being private property as from a desire to maintain the uninterrupted use of the same for the pious purposes. It also provides that Gautama in his Institutes (XXVIII, 46) declares that “property designed for pious uses or sacrifices” shall not be divided. Catyayana in a text quoted in the Digest (Colebrooke's Digest, Vol.II, page 471 enumerates “property which has been appropriated to religious uses” amongst the impartible things. 22. From the above it can be concluded that Hindu temple consists of various parts connected with each other and constructed with certain specifications and calculations with respect to the various structures attached to the temples which R.S.A.No.1005/2013 **18** include reservoirs, wells etc. 23. In the present case it has already been found that 39 cents of property has been specifically described in Ext.A3, the basic document, as 'Kavupurayidom'. It might have been set apart or is a property destined for pious uses or religious uses and would come under impartible items. So the claim now made by the plaintiff over the 39 cents of property described as item No.1 in Ext.A3 has been rightly repelled by the courts below. Hence, I don’t find any reason whatsoever to deviate from the findings concurrently made by the courts below. In the result, appeal is found to be devoid of any merit and hence dismissed. Parties shall bear their respective cost. Pending Interlocutory Applications, if any, are closed. Sd/- ## **M.R.ANITHA** Shg **JUDGE** R.S.A.No.1005/2013 **19** ## **APPENDIX** ## **APPELLANTS' ANNEXURES:** **ANNEXURE A1: TRUE COPY OF THE JUDGMENT DATED 31.10.2008 IN O.S.NO.412/2006 OF THE MUNSIFF COURT, PATHANAMTHITTA**