Regular Second Appeal No.66 of 2010 (P. Vijayi and others v. P.K. Yesoda and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 24TH DAY OF JUNE 2019 / 3RD ASHADHA, 1941** ## **RSA.No.66 of 2010** **AS 26/2008 of PRINCIPAL S.C.,THALASSERY** **OS 482/2001 of MUNSIF COURT, KUTHUPARAMBA** ## **APPELLANTS/APPELLANTS/DEFENDANTS NO.2 TO 6** - **1 P.VIJAYI,W/O.RAGHAVAN, AGED 65 YEARS** - **POOVALLUPARAMBATH HOUSE,THRIPRANGOTTUR AMSOM,, POYILOOR DESOM.** - **2 RAJINE,D/O.RAGHAVAN,38 YEARS AGED 38 YEARS** - **-DO- -DO-** - **3 SAJINI,D/O.RAGHAVAN,AGED 31 YEARS AGED 31 YEARS TEACHER -DO- -DO-** - **4 RAGESH,S/O.RAGHAVAN,AGED 30 YEARS AGED 30 YEARS** - **-DO- -DO-** - **5 SANEESH,S/O.RAGHAVAN,AGED 27 YEARS AGED 27 YEARS** - **-DO- -DO-** **BY ADVS.** **SRI.P.N.KRISHNANKUTTY ACHAN(SR.) SMT.M.A.ZOHRA SRI.K.MOHANAKANNAN** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 7 TO 14** - **1 P.K.YESODA @ PADMAVATHI W/O.KUNHIKKANNAN,AGED 62 YEARS,PERINGATHUR AMSOM, PULLOOKARA DESOM.** **RSA.66/2010** 2 - **2 THE ASST.EDUCATIONAL OFFICER PANOOR.** - **3 THE DISTRICT COLLECTORKANNUR.** - **4 M.P.CHANDRIKA,D/O.P.K.YESODA, AGED 50 YEARS,VALIYAPURAYIL HOUSE,MOKERI AMSOM,, DESOM,KOORARA.P.O.** - **5 P.N.BALAKRISHNAN,S/O.P.K.YESODA,AGED AGED 52 YEARS** - **52 YEARS,VALIYAPURAYIL HOUSE,MOKERI AMSOM DESOM,, KOORARA.P.O. (DIED)** - **6 P.P.INDIRA,D/O.P.K.YESODAAGED 47 YEARS PULLUKKARA AMSOM,PANDIKKAL DESOM,NALUTHARA.P.O.** - **7 K.P.USHA,D/O.P.K.YESODA,AGED 45 YEARS MADHYATH MEETHAL HOUSE,CHOKLI AMSOM,, KEEZHAADAM DESOM,P.O.CHOKLI.** - **8 A.P.BALAMANI,D/O.P.K.MALATHI,AGED 30 YEARS,PUTHANPURAYIL HOUSE, THRIPRARNGOTTUR AMSOM, POYILOOR DESOM,P.O,.POYILOOR.** - **9 P.P.MINI,D/O.MALATHI AGED 26 YEARS COOLIE, -DO- -DO-** - **10 BHANUMATHI, AGED 48 YEARS W/O LATE P.N.BALAKRISHNAN, PAZHAYAPURAYIL, PULLOOKARA P.O, KANNUR DISTRICT - 670672** - **11 BAVITHA, AGED 28 YEARS** - **D/O LATE P.N.BALAKRISHNAN, PAZHAYAPURAYIL, PULLOOKARA P.O, KANNUR DISTRICT - 670672** - **12 BIJITHA, AGED 25 YEARS** - **D/O LATE P.N.BALAKRISHNAN, PAZHAYAPURAYIL, PULLOOKARA P.O, KANNUR DISTRICT - 670672** **RSA.66/2010** 3 **13 BINUJA, AGED 22 YEARS D/O LATE P.N.BALAKRISHNAN, PAZHAYAPURAYIL, PULLOOKARA P.O, KANNUR DISTRICT - 670672 14 JUHITH KRISHNA AGED 17 YEARS S/O LATE P.N.BALAKRISHNAN, PAZHAYAPURAYIL, PULLOOKARA P.O, KANNUR DISTRICT - 670672 (SUPPLEMENTAL RESPONDENTS 10 TO 14 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED 5TH RESPONDENT AS PER ORDER DATED 5.7.19 IN I.A.1/2018 ) BY GOVERNMENT PLEADER SRI.P.M.SATHEESH SRI.V.BINOY RAM** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.66/2010** 4 ## JUDGMENT 1. The plaintiff filed the suit for a declaratory and mandatory injunction. The suit was decreed by the trial court. The decree of the trial court was confirmed by the lower appellate court. The second appeal is filed by defendants 2 to 6. 2. The plaint schedule property is 10 cents of land with a school building in it. A school is run in the building. The property originally belonged to one P.K.Kunhikannan. He was the father of the plaintiff and Raghavan. Raghavan died. Raghavan was the husband of the second defendant and father of defendants 3 to 6. Kunhikannan executed Ext A1 gift deed in favour of his wife Chirutha and children. According to the plaintiff, the right of management of the school was transferred to Chirutha. It was also contended that the transfer came into effect even before the gift deed. The plaintiff contended further **RSA.66/2010** 5 that item No.11 in Ext A1 gift deed was the plaint schedule property. The defendant contended that item No.11 in Ext A1 was a different property in a different survey number, and not the school compound comprised in survey No.92/7. Whatever it be, admittedly, till death in 1973, Chirutha was the manager of the school. Thereafter Raghavan was the manager till his death in 1999. After Raghavan, the fifth defendant was appointed the manager by the department. The said appointment was challenged by the plaintiff in the suit. According to the plaintiff, the appointment of the fifth defendant as the manager was without her knowledge and consent. It was also contended by her that she should have been consulted and her consent should have been taken before the appointment of the manager. 3. Apart from the contentions of the defendants noted in the earlier paragraph, they contented that the suit was barred by Sec.33 of the Kerala Education Act. Although the **RSA.66/2010** 6 defendants raised a contention that Kunhikannan had executed a will to bequeath the school and management to Chirutha, the will was not produced and proved. 4. The trial court granted a decree declaring that the school in the plaint schedule property was a thavazhi property and that for effecting transfer of management and correspondentship of the said school in the name of the fifth defendant, written consent of all members of the thavazhi was essential. By a decree of mandatory injunction the seventh defendant was directed to give the plaintiff a reasonable opportunity to raise her objection and counter effectively in the matter of consideration of the fifth defendant's application for transfer of management and correspondent of the aforesaid school. The decree of the trial court was taken in appeal, but the appellants lost. 5. Heard Smt.M.A.Zohra, the learned counsel for the **RSA.66/2010** 7 appellants/defendants 2 to 6, Sri.V.Binoy Ram, the learned counsel for the plaintiff and Sri. P.M.Satheesh, the learned government pleader appearing for respondents 7 and 8 in the appeal. 6. The suit was filed challenging the appointment of the fifth defendant as the manager of the school. He was appointed the manager by the 7[th] defendant/assistant education officer, Panoor in Kannur district. The defendants challenged the very maintainability of the suit. The courts below did not accept the said contention. Sec.9 of CPC provides that civil courts shall have jurisdiction to try all suits of a civil nature barring suits of which their cognizance is either expressly or impliedly barred. The learned counsel for the appellants referred to Secs 7 and 9 of the Kerala Education Act and Chapter III and XXVIII of the Kerala Education Rules. There is no express bar against a civil suit in those provisions. But remedies by way of appeal to the appellate authority and **RSA.66/2010** 8 revision to the government are provided in the said Act and Rules against the decision of the educational authority appointing a manager. Therefore, according to the learned counsel for the appellants, there is an implied bar to civil courts to take cognizance of a suit of the nature of the present one. In support of the submission, the learned counsel relied on Avvu v. Bapputty (1977 KLT 620) . The division bench has held as follows : “It is clear from Ss 7 and 9 of the Act and Chapter III and XXVIII of the Rules that when legal title of management is provided for by the statutory provisions as based upon approval by the educational authorities. It appears difficult to envisage how a suit to revoke a person duly approved by the educational authorities can lie without due cancellation or vacation of the approval. Nor are we able to understand how against such a duly approved Manager, the relief of injunction can lie. On these grounds it appears to us that the decree for removal of the 1[st] defendant and for injunction against him must be vacated.” In view of the decision in Avvu's case (supra), the suit of **RSA.66/2010** 9 the plaintiff was not maintainable. The enquiry in the suit, first appeal and the second appeal should end here. Therefore the appeal deserves to be allowed. 7. The second appeal is allowed. The decree of the trial court and the decree of the first appellate court are set aside. The suit of the plaintiff stands dismissed. In the facts and circumstances of the case, the parties are directed to suffer their costs throughout. ## **Sd/-** ## **A.M.BABU** ## **JUDGE** Mrcs/25.6. /True copy/ P.S.To Judge