Rajan (Died), S/O Kaithakkattu Andy v. Sree Kurumba Bhagavathy Devaswom, Kodungallur

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 18TH DAY OF JUNE 2018 / 28TH JYAISHTA, 1940** **RSA.No. 490 of 2003** **AGAINST THE JUDGMENT & DECREE DATED 25-01-2003 IN AS 7/2003 of THE DISTRICT COURT, THRISSUR** **AGAINST THE JUDGMENT & DECREE DATED 05-09-1992 IN OS 18/1976 of THE MUNSIFF COURT, KODUNGALLUR** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** **RAJAN (DIED), S/O.KAITHAKKATTU ANDY, EDAVILANGU VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT** **1. K.K.PREMABAI, AGED 65 YEARS, W/O.LATE RAJAN, KAITHAKKATTU, EDAVILANGU VILLAGE, KODUNGALLUR TALUK, THRISSUR DT.** **2. JOSHY, AGED 40 YEARS, S/O.LATE RAJAN, KAITHAKKATTU, EDAVILANGU VILLAGE, KODUNGALLUR TALUK, THRISSUR DT.** **3. JYOTHIKUMAR, AGED 38 YEARS, S/O.LATE RAJAN, KAITHAKKATTU, EDAVILANGU VILLAGE, KODUNGALLUR TALUK, THRISSUR DT.** ## **BY ADV.SRI.RENJITH THAMPAN (SENIOR)** ## **RESPONDENTS/APPELLANT/PLAINTIFF:** **1. SREE KURUMBA BHAGAVATHY DEVASWAM, KODUNGALLUR, REPRESENTED BY ITS DEVASWAM BOARD SECRETARY** - ***2. VIJAYA RAGHAVAN, AGED 69 YEARS, (DELETED) KAITHAKKATU ANDY, EDAVILANGU VILLAGE, KODUNGALLUR TALUK, THRISSUR DT.** - **(THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER THE ORDER DATED 17.12.2016 IN IA 2886/2016 IN MJC 454/2016 IN RSA 490/2003)** **R1 BY ADVS. SRI.M.RAMESH CHANDER** **SMT.P.K.RADHIKA SRI.K.GOPALAKRISHNA KURUP(SENIOR) SRI.KRISHNA MENON, SC, COCHIN DEVASWOM BOARD SRI.K.S.SURESH SRI.P.K.SURESH KUMAR (SR.) SRI.K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J. ------------------------------R.S.A.No.490 of 2003 ---------------------------------------------Dated this the 18[th] day of June, 2018** ## **JUDGMENT** Heard the learned Senior Counsel appearing for the appellants and the learned counsel appearing for the 1[st] respondent. 2. This appeal is against the judgment and decree passed by the learned District Judge, Thrissur in A.S.No.7 of 2003, whereby he set aside the judgment and decree passed by the trial court and granted a decree of declaration that the respondent has title and possession over the plaint schedule property. A mandatory injunction decree was also granted in favour of the respondent, directing the appellants to hand over vacant possession of the building. Feeling aggrieved, the defendants have preferred this appeal. 3. Short facts, relevant for disposal of the appeal, are as follows: Plaint schedule building, which is described as vazhiyambalam (inn), a well, etc. in Re-Survey No.415/2 of **RSA 490/2003** **2** Lokamaleswaram Village, is owned and possessed by Kodungallur Sreekurumba Bhagavathi Temple. The temple is being managed by Cochin Devaswom Board. According to the plaint averments, the plaint schedule property, except the building, described as vazhiyambalam and well, are in the absolute possession of the Devaswom Board. In February, 1975, the appellants have constructed a nedumpura, close to the vazhiyambalam. The last mentioned structure had been handed over to one Sanyasi Desika Ramadasan, as per Ext.B1 document of the year 1093 M.E. Vazhiyambalam and well belonging to the temple were used for giving drinking water and buttermilk during the two festivals in the temple. The ritual has been described in Ext.B1 as നനീരരരും മമമോരരരും. According to the plaint averments, the original grantee had no other right, except a licence to keep and supply drinking water and buttermilk to devotees. Plaint further says that the construction of nedumpura by the appellants over the land owned and possessed by the temple, was an unauthorised act. Therefore, the 1[st] respondent claims declaration that the property belongs to the temple and a mandatory injunction directing the appellants to **RSA 490/2003** **3** vacate the premises. Subsequently, the suit was amended, seeking a relief of recovery of possession on the strength of title as well. 4. The appellants opposed the suit by contending that they are in possession of six cents of land, wherein the structures described in the plaint are situated. Vazhiyambalam was constructed on a lease arrangement by the predecessor of the appellants in 1078 M.E., with the then Raja of Puthia Kovilakam, for rendering service of providing drinking water and buttermilk to devotees, who assemble at the temple during festival seasons. They claim right through a proclamation No.22 of 1078 M.E. by the then Raja of Puthia Kovilakam. The rights originally conferred on the grantee devolved on the appellants by subsequent transfers. Sanyasi Desika Ramadasan's right devolved on the appellants and none of the reliefs claimed in the suit can be granted against them. 5. The suit was originally decreed, against which the appellants preferred an appeal before the lower appellate court. In the appeal, the judgment and decree of the trial court was set aside and the matter was remanded for referring the question of **RSA 490/2003** **4** tenancy to the Land Tribunal concerned. Thereafter, the question of tenancy raised by the appellants was referred to the Special Tahasildar (Land Reforms), Kodungallur, under Section 125 (3) of the Kerala Land Reforms Act, 1963 (in short, the KLR Act). The Land Tribunal found that the appellants are entitled to get fixity of tenure in respect of the plaint schedule property. Incorporating the finding of the Land Tribunal, the trial Judge dismissed the suit. Aggrieved by that decision, the matter was taken up before the District Judge in appeal again. Learned District Judge, considering the judgment passed by the trial court and also the order in the reference case, found that the appellants are not entitled to get fixity of tenure. In fact, the finding is that they are not tenants. They do not fall within the definition of 'tenant' under Section 2(57) of the KLR Act. Therefore, the suit was decreed, finding that they are occupying the property as licensees. 6. Learned Senior Counsel appearing for the appellants strongly contended that the view taken by the court below is completely incorrect. 7. The substantial questions of law raised in the appeal **RSA 490/2003** **5** are as follows: 1. Whether the term Andukazhcha (Annual presents) is not a rent under S.2(57) of the Kerala Land Reforms Act ? 2. Whether the original 1[st] defendant Rajan is entitled for fixity of tenure ? 3. Whether the right of the plaintiff is lost by Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981 ? 4. Whether the present plaintiff is entitled to sue ? 5. Is the plaint as filed at present a properly constituted one ? 6. Is a temple, which is non juristic person, entitled to sue ? 8. At the outset, learned Senior Counsel contended that the suit is not maintainable for the reason that it was not properly instituted, as owner of the plaint schedule property has not been arrayed as the plaintiff. According to him, the cause title to the plaint would show that the suit is instituted by Sreekurumba Bhagavathy Devaswom, which is a non-entity **RSA 490/2003** **6** under the Travancore Cochin Hindu Religious Institutions Act, 1950 (in short, the Act of 1950). My attention has been drawn to Section 62 of the Act of 1950, which says that the administration of incorporated and unincorporated Devaswoms and Hindu Religious Institutions, which were under the management of the Ruler of Cochin immediately prior to the first day of July, 1949 and all their properties and funds and of the estates and all institutions under the management of the Devaswom Department of Cochin, shall vest in the Cochin Devaswom Board. It is therefore contended by the learned Senior Counsel that the Board should have been instituting the suit and the temple has no legal existence under the provisions of the Act of 1950. Section 72(2) is also pressed into service to argue that the Devaswom Board shall by its name sue and be sued. Relying on Order 1 Rule 1 CPC, it is argued by the learned Senior Counsel that the plaintiff should have a right to relief. According to him, the plaintiff in this case, namely, Sreekurumba Bhagavathy Devaswom, cannot institute such a suit. 9. Reliance is placed on a decision rendered by the Chhattisgarh High Court reported in **Indian National** **RSA 490/2003** **7** **Congress v. Union of India [2017 KHC 4483]** to argue a proposition that an unincorporated body having no legal personality will not have a locus standi to institute a legal proceeding. 10. Per contra, learned counsel for the 1[st] respondent Devaswom contended that the suit is correctly framed and on a reading of the cause title, it will be clear that the suit is instituted by Cochin Devaswom Board, who is in administration of Sreekurumba Bhagavathy Temple, Kodungallur. It is also contended by the learned counsel for the 1[st] respondent that by virtue of the proviso to Section 72(2) of the Act of 1950, it will be clear that the Secretary of the Devaswom Board shall be competent to represent the Board in a suit by or against the Board. It is therefore contended by the learned counsel for the 1[st] respondent that the suit is properly instituted. 11. Having regard to the averments in the plaint and also the descriptions in the cause title, coupled with the provisions referred to above, I am of the view that the suit has been instituted by the Cochin Devaswom Board through its Secretary, for and on behalf of the Sreekurumba Bhagavathy Temple. I find **RSA 490/2003** **8** no legal infirmity in the frame of the suit. Hence, this point is decided against the appellant. 12. Another contention raised by the learned Senior Counsel for the appellants is that the lower appellate court committed a grave illegality in dismissing the finding by the Land Tribunal that they are entitled to get fixity of tenure. According to him, Ext.B1 created a lease arrangement falling within the definition of tenancy in Section 2(57) of the KLR Act. Section 2(57) reads as follows: "tenant" means any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land, and includes- - (a) the heir, assignee or legal representative of, or any person deriving rights through, any such person who has paid or has agreed to pay rent or other consideration, - (aa) an intermediary,] - (b) a kanamdar, - (c) a kanam-kuzhikanamdar, - (d) a kuzhikanamdar, - (dd) an ottikuzhikanamdar, - (e) a mulgenidar, - (f) a verumpattamdar of any description **RSA 490/2003** **9** (including a customary verumpattamdar), - (g) the holder of a chalgeni lease, - (h) the holder of a kudiyiruppu, - (hh) a person holding lands under a kuzhichuvaipum kudiyiruppum, - (hhh) the holder of a karaima, - (i) the holder of a vaidageni lease, and - (j) a person who is deemed to be a tenant under Section 4, Section 4A, Section 5, Section 6, Section 6A, Section 6B, Section - 7, Section 7A, Section 7B, Section 7C, Section 7D, [Section 7E] Section 8, Section 9 or Section 10, or presumed to be a tenant under Section 11.] 13. It is contended by the learned Senior Counsel that the schedule and recitals in Ext.B1 would show that not only the structures mentioned therein, but six cents of land was also given in possession to the original grantee, namely, Desika Ramadasan. It has been strongly contended that the expression 'handing over of possession' by the Kovilakam to Sanyasi Desika Ramadasan has been recited in many parts of Ext.B1. It is therefore contended that the view taken by the lower appellate court that he was only a licensee, is legally incorrect. Learned counsel for the 1[st] respondent, in answer to the above **RSA 490/2003** **10** contention, contended that by virtue of Ext.B1, it can be seen that Desika Ramadasan was allowed to occupy the building and other structures for providing drinking water and buttermilk to devotees, who attended the temple. There was no handing over of possession, nor was any tenancy created in his name. It is also contended on the basis of definition of “rent” in Section 2(49) that for creation of a tenancy, payment of rent or other consideration to the landlord is an essential condition. Even though Ext.B1 makes mention of Aandukazhcha (annual payment), it is contended by the learned counsel for the 1[st] respondent that it can only be a customary due as defined in Section 2 (9) of the KLR Act. The provision reads thus: - "customary dues" means anything, other than rent, michavaram or renewal fees- - (i) landlord; or - (ii) allowed to be taken by the landlord from the holding, periodically or on the happening of any even or on the occasion of any festival, and includes onakazhcha, utsavakoppu, perunnalkazcha and aradiantharam; 14. On a reading of the above provision, it is clear that customary dues does not take in rent, michavaram, etc. It is the **RSA 490/2003** **11** specific contention raised by the learned counsel for the 1[st] respondent that unless there is a stipulation that the tenant should pay rent or other consideration to the landlord, there cannot be a tenancy created under the KLR Act. 15. In this context, the contention raised by the learned Senior Counsel for the appellants in respect of “other consideration” is worth mentioning. According to him, the expression 'other consideration' occurring in Section 2(57) of the KLR Act can be giving നനീരരരും മമമോരരരും. I am afraid, I cannot agree with the submission for the reason that supply of drinking water and buttermilk was intended to be made to devotees and not to the landlord. Even if the landlord was having a moral obligation to provide drinking water to the thirsty, that cannot be taken as a consideration to qualify Desika Ramadasan as a tenant under Section 2(57) of the KLR Act. 16. Learned Senior Counsel for the appellants then contended that going by Section 10 of the KLR Act, even a licensee is entitled to get protection from eviction under the provisions of the Act. Section 10 of the KLR Act reads thus: **Certain other persons to be deemed tenants.-** Notwithstanding anything to the contrary contained **RSA 490/2003** **12** in any law, or in any contract, custom or usage, or in any judgment, decree or order of Court, the following classes of persons shall be deemed to be tenants:- - (i) a punam or kumri cultivator; - (ii) a licensee [xxxx]; - (iii) a varamdar; - (iv) a vechupakuthidar; and - (v) a person holding land situate in any part of the taluk of Hosdurg or Kasaragod to which the Malabar Tenancy Act, 1929, did not extend, under a transaction described - in the document evidencing it as bhogya, otti, nattotti, arwar, illidarwar or Krithasartha illidarwar, but not being a usufructuary mortage as defined in the Transfer of Property Act, 1882. 17. In this Context, it is relevant to understand the expression 'licensee' defined in Section 2(33) of the KLR Act in the following terms. It reads thus: "licensee" means any person who is in occupation of any nilam belonging to another and who, under any local custom or usage or under an agreement, cultivates that nilam with paddy for a remuneration and with the risk of cultivation, but does not include a person who cultivates the nilam of another merely as an agent or servant: **RSA 490/2003** **13** 18. It is evident from the above definition that licensee means any person, who is in occupation of any nilam (paddy field) belonging to another. Admittedly, the property in question is a part of the temple compound and is not a nilam. Therefore, the appellants cannot be considered to be licensee entitled to any benefit under Section 10 of the KLR Act. None of these questions were properly considered by the Land Tribunal and the trial Judge and those issues were correctly analyzed by the lower appellate court. Therefore, I find no reason to interfere with the well considered judgment of the lower appellate court on this aspect. Hence, this point is decided against the appellants. 19. Relying on the provisions in the Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981 (in short, the Act of 1981), learned Senior Counsel appearing for the appellants contended that at any rate, the appellants are entitled to get benefits under the Act of 1981. Definition of Service Inam under Section 2(f) of the Act of 1981 reads as follows: “Service Inam land” means land held under a tenure to which some specific service or obligation in the shape of personal labour or supply of provisions is **RSA 490/2003** **14** attached and includes land held under Viruthy, Oozhiyam, Karanma or Erayili tenure. 20. Section 3 of the Act of 1981 would show that notwithstanding anything contained in any law for the time in force, or in any contract, or in any judgment, decree or order of any Court, with effect from the appointed day, all right, title and interest of the landowners in Service Inam lands held by land holders shall vest in the Government free from all encumbrances. It is therefore contended by the learned Senior Counsel that the 1[st] respondent is precluded from claiming title to the property, because of the statutory vesting under the Act of 1981. This contention also has to fail for the following reasons: First of all, this contention has no basis in the pleadings. No evidence has been let in to substantiate the present contention. Not only that, the benefits under the Act of 1981 and those under the provisions of the KLR Act cannot be claimed together as they operate in completely different fields. 21. On facts, the learned District Judge found that the appellants are occupying the premises on the basis of an arrangement of the year 1078 M.E. None of the parties have produced the original document through which Desika **RSA 490/2003** **15** Ramadasan was allowed to occupy the premises. Ext.B1 does not create a tenancy in respect of the schedule property, has been clearly found by the lower appellate court on facts. From the facts and circumstances coupled with the legal provisions mentioned above, I am of the view that the lower appellate court is justified in finding title to the plaint schedule property with the 1[st] respondent and also finding that Ext.B1 and the prior document revealed only a licence arrangement, which was terminated by the suit resulting in grant of a mandatory injunction decree. In the light of the above discussion, I find that the substantial questions of law should be decided against the appellants and hence, I do so. In the result, the judgment passed by the lower appellate court is confirmed and the appeal is dismissed. Sd/- **A. HARIPRASAD JUDGE** JV