R.S.A. Nos. 344, 346 & 347 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** ## **WEDNESDAY, THE 25TH DAY OF JANUARY 2017/5TH MAGHA, 1938** ## **RSA.No. 344 of 2012 (G)** ## **-----------------------** ## **AS 172/2010 of ADDITIONAL DISTRICT COURT-II, THIRUVANANTHAPURAM** ## **OS 181/2001 of PRINCIPAL MUNSIFF’S COURT, NEYYATTINKARA** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** ## **---------------------------------** ## **1. NARAYANAN VISWAMBHARAN,** **AGED 55 YEARS, ERIKKALAVILA VEEDU, POOVAR DESOM, THIRUPURAM VILLAGE.** ## **2. VELAYUDHAN SREEKUMAR,** **AGED 37 YEARS, THERIVILA VEEDU, KARUMKULAM DESOM, KARUMKULAM VILLAGE.** ## **3. VASUDEVAN SUDHAKARAN,** **AGED 37 YEARS, RESIDING AT THERIVILA VEEDU, KARUMKULAM DESOM, KARUMKULAM VILLAGE.** ## **BY ADV. SRI.R.T.PRADEEP** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** ## **-----------------------------------** ## **1. DEVI BHADRAKALI, SREE BHADRAKALI TEMPLE KARUMKULAM,REPRESENTED BY COMMITTEE SECRETARY, PIN-695 121.** **2. DEVI KARUMKALI, KALLUMUKKU, KARUMKALI TEMPLE, KARUMKULAM, REPRESENTED BY COMMITTEE SECRETARY, PIN-695 121.** **RSA.No. 344 of 2012 () ----------------------** **3. FIRST AND SECOND RESPONDENTS REPRESENTED** **BY THE SECRETARY, VELAYUDHAN PILLAI GIRIJADHARAN NAIR, AGED 56 YEARS, THAZHEVEETTUVILAKAM, DIVIYA SREE, KARUMKULAM DESOM-695 121.** **BY ADV. SRI.G.S.REGHUNATH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-01-2017, ALONG WITH RSA. 346/2012 & RSA. 347/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/30/1/17** ## **[CR]** ## **B. KEMAL PASHA, J.** ................................................................ R.S.A. Nos. 344, 346 & 347 of 2012 ............................................................... Dated this the 25[th] day of January, 2017 ## **J U D G M E N T** The appellants in these Second Appeals have come up by challenging the judgment and decree passed by the Additional District Court-II, Thiruvananthapuram in A.S.No.172 of 2010, A.S.No.100 of 2011 and A.S.No.183 of 2010. 2. Originally these appellants were defendants in O.S.No.181 of 2001 of the Munsiff's Court, Neyyattinkara. The said suit was filed by the respondents herein as plaintiffs, seeking a decree of perpetual injunction, restraining the defendants from obstructing the 3[rd] plaintiff from conducting _poojas_ and necessary rituals at the temple R.S.A. Nos. 344, 346 & 347 of 2012 -: 2 :- situated in the plaint schedule property as well as its sub temples in the scheduled property, and also restraining the defendants from committing forcible trespass into the scheduled property and from installing any deity or to conduct _poojas_ or cause to conduct _poojas_ and from committing waste thereon. 3. The defendants filed a detailed written statement by setting up a counter claim. The property scheduled in the counter claim is precisely one cent of property situated 50 links towards east from the south western corner and 20 links towards north from the south western corner of the plaint scheduled property, and the one coconut tree standing in the said one cent of property. Through the counter claim, they have sought for a relief for declaring the right, title and possession of the defendants in the said one cent of property scheduled in the counter claim. The Munsiff's Court, Neyyattinkara, decreed O.S.No.172 of 2010 and dismissed the counter claim. At the same time, the R.S.A. Nos. 344, 346 & 347 of 2012 -: 3 :- learned Munsiff was magnanimous enough in granting a relief to the defendants by declaring that the defendants will have the right to perform _poojas_ in the _Manthramoorthi Mandapam_ without causing any obstruction to the rites, _poojas_ and festivals in the temple in the plaint scheduled property. 4. At the same time, the learned Munsiff restrained the defendants from causing any obstruction to the 3[rd] plaintiff from conducting the rites, _poojas_ and festivals in the temple in the plaint scheduled property and also they were restrained from making any construction or from installing any kind of idle or structure in the _Manthramoorthi Mandapam_ or anywhere in the plaint scheduled property. Aggrieved by reliefs 1 and 3, the defendants filed A.S.No.172 of 2010. Further, aggrieved by the dismissal of the counter claim, the defendants preferred A.S.No.100 of 2011. Aggrieved by the relief granted to the defendants, the plaintiffs preferred A.S.No.183 of 2010. R.S.A. Nos. 344, 346 & 347 of 2012 -: 4 :- 5. The learned Additional District Judge heard all the said appeals together and passed a common judgment, whereby allowing A.S.No.183 of 2010 and dismissing A.S.No.172 of 2010 and A.S.No.100 of 2011. The lower appellate court modified the decree granted by the trial court as follows: _“1. The defendants are restrained by a permanent prohibitory injunction from causing any obstruction to the poojas, rituals and other ceremonies being conducted and caused to be conducted by the 3[rd] plaintiff in the plaint scheduled temples and the Upadevathas therein including the Manthramoorthi Mandapam._ _2. The defendants are further restrained by a permanent prohibitory injunction from making any construction or establishing any idle or structure in the Manthramoorthi Mandapam or any where else in the plaint scheduled property.”_ 6. Aggrieved by the dismissal of A.S.No.172 of 2010, the defendants have preferred R.S.A.No.344 of 2012 and on the dismissal of A.S.No.100 of 2011, the defendants R.S.A. Nos. 344, 346 & 347 of 2012 -: 5 :- have preferred R.S.A.No.346 of 2012. Aggrieved by the judgment and decree in A.S.No.183 of 2010, the defendants have preferred R.S.A.No.347 of 2012. 7. Heard the learned counsel for the appellants and the learned counsel for the respondents in _extenso_ . 8. The 1[st] plaintiff is the deity of _Shree Bhadrakali_ Temple, Karumkulam, represented by the 3[rd] plaintiff, who is the Secretary of the Temple Managing Committee. The 2[nd] plaintiff is the deity in _Karumkali_ Temple, Karumkulam, who also is represented by the 3[rd] plaintiff. It has been pleaded in the plaint that the 2[nd] plaintiff is the _Upadevatha_ of the 1[st] plaintiff. According to the plaintiffs, over and above the 2[nd] plaintiff, _Upadevatha_ and _Devathas_ like _Manthramoorthi, Yakshi, Madan, Thampuran_ etc. are also installed in the plaint scheduled property. The _poojas_ in the temple and sub temples in the scheduled property are being conducted and the same are being administered by the Temple Managing Committee. The present Secretary is the 3[rd] plaintiff, who is R.S.A. Nos. 344, 346 & 347 of 2012 -: 6 :- entitled to represent the Temple Managing Committee and the other plaintiffs. 9. According to the plaintiffs, the plaint scheduled properties and other properties are there as the properties of plaintiffs 1 and 2. The Hindus of Poovar Desom, Thiruppuram Village, had incarnated the 2[nd] plaintiff in the 9 cents of property belonged to one Meeran Pilla, and they had been conducting _poojas_ . Thereafter, the legal representatives of Meeran Pilla and others had assigned the said property to the temple on 21.04.1955. One cent of property had also devolved on the temple on 27.01.1955 through Ext.A3. Thereafter, 2 cents of property was also purchased in favour of the temple through Ext.A4 dated 04.05.1985. 10. Subsequently, a Trust was created through Ext.A9 in the year 1986 in respect of the temple. Through Ext.A5, 3½ cents of property was also purchased for the temple on 29.01.1998. The temple building situated in the property is R.S.A. Nos. 344, 346 & 347 of 2012 -: 7 :- ad-measuring 4 x 3.8 metres. Another small structure is there ad-measuring 3.2 x 3.2 metres. Two more structures are also there, which ad-measure 2.4 x 3.4 metres and 80cm x 80cm. A well and further a _Manthramoorthi Mandapam_ are also there. 11. According to the plaintiffs, in the year 1984, a platform was constructed at the northern side of the _Shreekovil_ , wherein the 2[nd] plaintiff deity is incarnated, and _Manthramoorthi_ was installed. The Temple Managing Committee has been causing the conduct of _poojas_ for plaintiffs 1 and 2 as well as _Upadevathas_ like _Manthramoorthi, Yakshi, Madan_ etc., and they have been conducting yearly festivals also. The plaint schedule property is having a total extent of 16½ cents. According to the plaintiffs, the defendants, by violating the rituals and _poojas_ going on at the temple and sub temples, declared that they would forcibly commit trespass into the platform and would install an idle, where the _Manthramoorthi_ was R.S.A. Nos. 344, 346 & 347 of 2012 -: 8 :- already installed, and would conduct separate _poojas_ . It was in that context, the suit was filed. 12. The defendants denied the plaint claims and averments. It was contended that in olden times, the entire temple was being managed by the Thandar community known as Thachar community, which is being represented by the defendants. Thereafter, one Kesava Pillai Krishna Pillai took over the management of the temple. Even after that, the Thandar community continued to look after the affairs of the Manthramoorthi Mandapam. They have been conducting _poojas_ and all at the Manthramoorthi Mandapam in memory of their forefathers. The plaintiffs cannot forward any claim over the Manthramoorthi Mandapam. The one cent of property, wherein the Manthramoorthi Mandapam is situated, is in the absolute possession and enjoyment of the defendants. The defendants have been conducting _poojas_ and festivals in respect of the Manthramoorthi Mandapam. Manthramoorthi is not the 'Upadevatha' of plaintiffs 1 and 2. R.S.A. Nos. 344, 346 & 347 of 2012 -: 9 :- According to the defendants, the attempt of the plaintiffs is to join the said one cent of property also to the 9 cents of property of the temple, since the said one cent is lying adjacent to the 9 cents of property. Separate _poojas_ and festivals are being conducted in respect of the Manthramoorthi Mandapam as well as the temple. The aforesaid one cent of property was purchased by the members of the Thachar community through sale deed dated 27.01.1955 in favour of the 'Sri Chithirathirunal Dharma Paripalana Thachar Samajam' (shortly called 'Thachar Samajam'). At that point of time, the temple as a whole was at the management and administration of Thachar community. According to the defendants, the relief sought for by the plaintiffs are not allowable and the defendants are entitled to the relief sought for in the counter claim. 13. On the side of the plaintiffs, PWs 1 to 3 were examined. On the side of the defendants, DWs 1 to 4 were R.S.A. Nos. 344, 346 & 347 of 2012 -: 10 :- examined. 14. On hearing either side, it has come out that the real dispute is with regard to the right, title, possession and enjoyment of the counter claim schedule property. Even though there is a claim that Manthramoorthi Mandapam is there in the one cent of property, the said Manthramoorthi Mandapam has not been included in the counter claim schedule property. The relief sought for in the counter claim is for the declaration of the right, title and possession of the defendants over the counter claim schedule property. The counter claim schedule property as aforesaid is just one cent of property and a coconut tree standing in it. When the Manthramoorthi Mandapam has not been included in the counter claim schedule property, both the courts below ought to have considered that any relief based on the counter claim could not be granted in respect of such Manthramoorthi Mandapam, especially when the relief sought for was confined to the counter claim schedule R.S.A. Nos. 344, 346 & 347 of 2012 -: 11 :- ## property. 15. Apart from the above, it seems that the counter claim has been forwarded by the defendants in their capacity as persons representing the Thachar community as a whole as well as the 'Thachar Samajam'. According to them, the first defendant is the present President of 'Sri Chithirathirunal Dharma Paripalana Thachar Samajam' and the second defendant is its Secretary. It has not been made clear whether it is an association which is registered or not. It has not been made clear as to whether the said Samajam is a separate legal entity. When the defendants are representing the said Thachar Samajam or the Thachar community as a whole, they ought to have preferred the counter claim with the aid of Order I Rule 8 of the CPC. Here, in this particular case, no such notification was made. Matters being so, it cannot be said that the defendants can maintain the counter claim in favour of all the members of the Thachar community or the members of the 'Thachar R.S.A. Nos. 344, 346 & 347 of 2012 -: 12 :- Samajam'. On that simple score itself, the defendants are not entitled to the relief sought for in the counter claim. 16. It is true that when sufficient pleadings are there and when no proper reliefs have been sought for, civil courts are not powerless to mould the relief for advancing the remedy and suppressing the mischief. Here, what has to be considered is whether the Thachar community or the defendants can sustain any separate claim of right, title or possession over the one cent of property scheduled as counter claim schedule property. Even though in the written statement, it has been contended that the attempt of the plaintiff is to join the said one cent of property also along with the other properties of the temple, it is evident from Ext.C2(a) that the said one cent of property is situated just near to the middle portion of the temple property. The said one cent is bounded by other properties of the temple on all its sides. Any separate pathway is not seen provided to the said one cent of property. Any boundaries are not there to R.S.A. Nos. 344, 346 & 347 of 2012 -: 13 :- the said one cent of property for demarcating the said one cent of property from the rest of the properties of the temple. In such case, the contention forwarded by the defendants that the attempt of the plaintiffs through the said suit is to join the one cent of property with the rest of the properties of the temple, is devoid of merits. 17. On the question regarding the special right claimed by the defendants over the one cent of property, it has to be noted that the defendants alone cannot forward such a claim in the absence of making the entire members of the Thachar community as parties to the counter claim. Apart from that, an interpretation of Ext.A3 is required to conclude whether there was dedication of the one cent of property purchased by the members of the 'Thachar Samajam' to the deities of the temple or the public for worship or the use of the temple or the public. The recitals in Ext.A3 show that the said one cent of property covered by Ext.A3 was purchased by the vendees shown in Ext.A3 by R.S.A. Nos. 344, 346 & 347 of 2012 -: 14 :- representing the 'Sri Chithirathirunal Dharma Paripalana Thachar Samajam'. The further recitals in Ext.A3 reveal that there was a 'Kali temple' for persons including the persons coming under the 'Thachar Samajam'. There was deficiency of space for putting up building for the said temple. On account of the deficiency of space and the difficulties of the temple, the members of the 'Thachar Samajam' wanted to purchase one cent of property situated at the northern side of the said temple for the purpose of constructing building, etc. for the temple. Considering the upliftment of the said community and the necessity of the temple, they thought it fit to provide the said one cent of property for the public. It was based on the aforesaid understanding that the said one cent of property was purchased without any reservation in Ext.A3. 18. On going through the recitals of Ext.A3, it is evident that it is nothing but an absolute dedication to the temple, without any reservation. The intention behind the R.S.A. Nos. 344, 346 & 347 of 2012 -: 15 :- purchase of the said one cent of property is clearly discernible from Ext.A3. The intention was to provide the said property for putting up buildings for the temple since there was no sufficient space to put up buildings for the temple. When such a dedication was unqualified and absolute, that too, without any reservation, it is nothing but a clear dedication. 19. This Court had occasion to consider the said question in _**Narayanan Pandarathil v. Vasudevan Pillai** [2014 (3) KLT 497]_ , wherein it was held: _“In order to constitute a valid dedication, such a dedication must be made by the owner of a property. Further, in order to create a valid dedication, the person dedicating his property should not reserve to himself any rights in the soil or the property. A dedication must be of a complete relinquishment of its rights of ownership over the property.”_ 20. The learned counsel for the appellants has strenuously contended that the dedication through Ext.A3 is R.S.A. Nos. 344, 346 & 347 of 2012 -: 16 :- a dedication for that particular community and the Samajam and the said intention is discernible from Ext.A3. On going through the recitals of Ext.A3, this Court is of the view that the said contention does not hold good. There is no reservation in Ext.A3 over the said property in favour of the Samajam or its members; whereas, in express terms, it was declared that the said one cent of property was purchased for the purpose of the construction of the building of the temple. Apart from that, the recitals in Ext.A3 gives an indication that the worshipers of the said temple were not the members of the Thachar community alone, whereas, the worshipers include the members of the Thachar community also. 21. By arguing that Ext.A3 will not create any dedication in respect of the temple, the learned counsel for the appellants has invited the attention of this Court to the decision in _**Parasamaya Kolerinatha Madam v. P. Natesa Achari**_ , _[(2011) 13 SCC 431]_ wherein on the basis of the R.S.A. Nos. 344, 346 & 347 of 2012 -: 17 :- dictum laid down in _**Radhakanta Deb v. Commissioner of Hindu Religious Endowments**_ [AIR 1981 SC 798 = (1981) 2 SCC 226] it was held that _“the fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management”_ , is one of the guidelines to decide whether an endowment is of a private nature or public nature. 22. Going by the dictum laid down in the said decisions, it will go to show that Ext.A3 will not create a dedication in favour of the temple for public purpose. Citing paragraph No.14 of the decision in _**Parasamaya Kolerinatha Madam**_ ( _supra_ ) which was extracted from _**Radhakanta Deb**_ ( _supra_ ), it has been argued that the recitals in Ext.A3 does not show a dedication in favour of the temple or for public purpose; whereas it was a dedication in favour of the members of the Thachar community. It was held in the decision noted _supra_ : R.S.A. Nos. 344, 346 & 347 of 2012 -: 18 :- _“Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature;_ 23. The dictum laid down in the said decisions are not applicable to the facts and circumstances of these cases or to the recitals in Ext.A3. Ext.A3 does not show that the vendees in Ext.A3 have retained any right over the property. In the absence of any reservation, it cannot be said that the purchase of the said one cent of property was a purchase for the betterment of the members of the Thachar community alone. 24. There is no sufficient pleadings in the written R.S.A. Nos. 344, 346 & 347 of 2012 -: 19 :- statement to show as to who has constructed the platform. The plaintiffs have clearly averred in the plaint that the said platform was constructed in the year 1984 at the instance of the managing committee. PW1 has admitted that the said platform was constructed by one Sivankutty as an offering to the temple. It is true that in the plaint, it has not been pleaded that the same was constructed by Sivankutty as an offering. At the same time, when the platform was constructed by somebody as an offering, it vests in the temple. 25. At this juncture, the learned counsel for the appellants has pointed out that the said Sivankutty is also a member of the Thachar community. Whatever it is, even if he is a member of the Thachar community, it will not make any difference at all. 26. Regarding the practices being followed with regard to _poojas_ , special worships etc. at the _Manthramoorthi Mandapam_ as claimed by the defendants, it R.S.A. Nos. 344, 346 & 347 of 2012 -: 20 :- has to be noted that admittedly _Poojari_ of the temple is PW2. Admittedly, PW2 is a member of the Thachar community. His father was also one of the vendees in Ext.A3. According to PW2, the _poojas_ and other rituals at the temple and _Manthramoorthi Mandapam_ are being conducted at the instance of the Temple Managing Committee. In categorical terms he has deposed that no special _poojas_ or separate _poojas_ are being conducted at the _Manthramoorthi Mandapam_ . According to him, when _poojas_ are being conducted at the temple, _poojas_ are being conducted at the _Manthramoorthi Mandapam_ also. He has clearly admitted that he is being paid by the Temple Managing Committee. 27. It seems that some persons of the Thachar community, may be at the instance of the defendants, had made an attempt to make it appear that the platform belongs to the Thachar Samudayam. Some writings to that effect were deliberately made on the sides of the said R.S.A. Nos. 344, 346 & 347 of 2012 -: 21 :- platform, immediately prior to the visit of the second Advocate Commissioner. Even according to PW2, such writings were not there at the time of the visit of the first Advocate Commissioner. The said writings were made just on the previous day to the visit of the second Commissioner. The first defendant, who was examined as DW1, has also admitted that PW2 is the _Poojari_ of the temple. According to PW2, he has been conducting _poojas_ in the temple for the last 30 years. DW1 has further admitted that the _Poojaris_ are being paid by the Temple Managing Committee. During the cross-examination of PW2, it was vehemently contended that PW2 is not the _Poojari_ of the temple and he was only a henchman of the 3[rd] plaintiff. At the same time, DW1 in cross-examination has clearly admitted that PW2 is one of the _Poojaris_ of the temple. When PW2, who is a member of the very same community, admits that at the instance of the Managing Committee, _poojas_ are being conducted at the platform also wherein _Manthramoorthi Mandapam_ is R.S.A. Nos. 344, 346 & 347 of 2012 -: 22 :- situated, there is absolutely nothing to disbelieve the versions of the plaintiff on that aspect. 28. It has clearly come out that the temple and its properties are being administered by the Managing Committee. When the purchase of one cent of property through Ext.A3 constitutes a clear dedication in favour of the temple and for public purpose, the defendants or any of the persons attached to a particular community cannot claim any special right over the property, in the absence of any reservation to that effect. Even though the learned counsel for the appellants has expressed the sentimental feelings of the members of the Thachar community that in case they are not permitted to conduct _poojas_ in reverence and in memory of their forefathers, that would be a matter of serious heartburn to such members. Courts cannot act on such sentimental approaches. When the said one cent of property is lying contiguously with the remaining properties of the temple, if any special right is given to the defendants R.S.A. Nos. 344, 346 & 347 of 2012 -: 23 :- to conduct special _poojas_ , even if in memory of their forefathers, that will disrupt the smooth administration and management of the temple properties and the affairs of the temple being looked after by its Managing Committee. Even though the defendants claimed that once upon a time during the purchase of the said one cent of property, the temple was being managed exclusively by the members of their community, there is no evidence to show such an aspect. 29. At the same time, the recitals in Ext.A3 reveal that the public, including the members of the Thachar community, were worshipers of the said temple which was in existence. Apart from that, there was no claim in Ext.A3 that the said temple was exclusively being managed by the Thachar community. The trial court, on a mis-appreciation of the facts and evidence, had given relief No.2 in the judgment passed by the trial court, in favour of the defendants. The lower appellate court, on a careful appreciation of the entire aspects, set aside the said decree R.S.A. Nos. 344, 346 & 347 of 2012 -: 24 :- granted to the defendants by the trial court. In fact, such a relief as the one granted by the trial court was not sought for by the defendants. The trial court has not made it clear as to how the trial court had moulded such a relief, even when such a relief was not sought for. The approach made by the lower appellate court seems to be correct. Of course, it seems that the lower appellate court has also dealt with matters extraneous to the plaint as well as the written statement. 30. On going through the judgment and decree passed by the lower appellate court and the reliefs granted by the lower appellate court, this Court is satisfied that there is absolutely nothing to interfere with it. The lower appellate court has made a correct approach and has dealt with the problems in its correct perspective and has arrived at the correct conclusion. Matters being so, these second appeals are devoid of merits and are only to be dismissed, and I do so. R.S.A. Nos. 344, 346 & 347 of 2012 -: 25 :- In the result, all these Second Appeals are dismissed. In the nature of these appeals, the parties shall bear their respective costs. All interlocutory applications in these appeals are closed. **Sd/- B. KEMAL PASHA, JUDGE.** ul/aks/dsv/- //True copy// P.S. to Judge.