RT. Rev. Mathew Kaparambil and RT. Rev. Thomas Philip Marankollil, Bishop of the Diocese of Travancore Cochin CMS Anglican Church v. Rev. K.M. Chacko and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940** ## **SA.No. 687 of 1999** **AGAINST THE JUDGMENT AND DECREE IN AS 57/1989 of ADDL.DISTRICT COURT,KOTTAYAM** **AGAINST THE JUDGMENT AND DECREE IN OS 134/1986 of ADDL.MUNSIFF COURT,KOTTAYAM** ## **APPELLANT/ ADDITIONAL 2ND RESPONDENT:** *** RT.REV.MATHEW KAPARAMBIL, TRAVANCORE COCHIN CMS ANGLICAN MAHAYIDAVAKA OFFICE, KUMARAKOM KARA, MADAPPALLY CHANGANACHERRY (DIED)** **LRS IMPLEADED** *** ADDITIONAL II APPELLANT** **RT.REV.THOMAS PHILIP MARANKOLLIL BISHOP OF THE DIOCESE OF TRAVANCORE COCHIN CMS ANGLICAN CHURCH, ANGLICAN CATHEDRAL, MOTHIRAVAYAL RANNI, PATHANAMTHITTA ADDL 2ND APPELLANT IS IMPLEADED AS PER ORDER DATED 28/6/02 IN CMP 32/2001** **BY ADV. SRI. M. NARENDRA KUMAR** ## **RESPONDENT / APPELLANT / DEFENDANT:** **** REV.K.M.CHACKO, KALLADA MURIYIL HOUSE ALAPRA,** S.A.No.687 of 1999 : 2 : **MANIMALA NOW RESIDING AT KANDATHIL HOUSE, ANICADU WEST PO, PALLICKATHODU (DIED) ADDL R2 TO R5 IMPLEADED** **** ADDL RESPONDENTS** **R2 MARTHA KALLADA MURIYIL VEEDU, KOTHALA P.O., PAMPADY, KOTTAYAM** ***** R3 JACOB MATHEW KALLADA MURIYIL VEEDU, KOTHALA P.O., PAMPADY, KOTTAYAM DELETED** **R4 ARUN CHACKO, KALLADA MURIYIL VEEDU, KOTHALA P.O., PAMPADY, KOTTAYAM** **R5 SHAIJU, S/O.MATHEW, AGED 31 RESIDING IN KUMARATHARA HOUSE, MADAPPALY VILLAGE, CHANGANACHERRY, KOTTAYAM** **LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL RESPONDENTS 2 TO 5 AS PER THE ORDER DATED 27/9/2017 IN IA 1437/2008.** **RESPONDENT NO.3 IS DELETED FROM THE PARTY ARRAY AS PER THE ORDER DATED 27/9/2017 IN IA 2503/2017.** **ADDL R2 BY ADV.BECHU KURIAN THOMAS ADDL R5 BY ADVS.JEENA JOSEPH, G.D.PANICKER** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** S.A.No.687 of 1999 : 3 : ## **P.B.SURESH KUMAR, J.** **----------------------------------------------------------------** ## **S.A. No.687 of 1999** **---------------------------------------------------------------** **Dated this the 6[th] day of September, 2018** ## **J U D G M E N T** The second appeal arises from OS No.134/1986 on the files of the Additional Munsiff's Court, Kottayam. 2. The case set out by the plaintiff in the plaint is that he is the duly consecrated Bishop of the Diocese of the Travancore and Cochin C.M.S. Anglican Church ('the Church', for short); that he is the spiritual and temporal head of the Diocese of the Church; that the assets of the Church are under the control and administration of the plaintiff; that the defendant was the Secretary and the Power of Attorney holder of the plaintiff in his capacity as the head of the Diocese of the Church; that the plaint schedule property was S.A.No.687 of 1999 : 4 : obtained by the Church in terms of Ext.A1 sale deed; that the defendant was suspended from the Secretaryship of the Diocese of the Church on 01/08/1985; that the Power of Attorney executed by the plaintiff in favour of the defendant on behalf the Church was also revoked on 01/08/1985 and that the defendant has now ordained himself as the Bishop of the Diocese of the Church and is attempting to trespass into the plaint schedule property. On the said case, the plaintiff sought a declaration that the defendant is not the Bishop of the Diocese of the Church and a decree of permanent prohibitory injunction restraining the defendant from trespassing into the plaint schedule property or interfering the possession of the plaintiff over the same. The defendant resisted the suit by filing a written statement. The stand taken by the defendant, in the written statement, is that the plaintiff has resigned from the office of the Bishop of the Diocese of the Church; that the resignation of the plaintiff has been accepted by the Diocese and council; that S.A.No.687 of 1999 : 5 : he has been ordained as the Bishop of the Diocese of the Church in the place of the plaintiff and that he is in possession of the plaint schedule property on that basis. 3. On an elaborate consideration of the oral and documentary evidence adduced by the parties, the trial court found that the plaintiff is the Bishop of the Church and that as the defendant was suspended from office, he is no more the Secretary of the Diocese of the Church. It was also found by the trial court that the case set up by the defendant that the plaintiff has resigned from the office of the Bishop of the Diocese is unsustainable and that the documents produced by the defendant to substantiate the said stand are forged. It was further found by the trial court that the alleged ordination of the defendant as Bishop of the Diocese of the Church is invalid and unsustainable. On the said findings, the trial court came to the conclusion that the defendant has no rights whatsoever in the plaint schedule property and consequently, granted the plaintiff the decree S.A.No.687 of 1999 : 6 : of prohibitory injunction sought by him. The declaration sought by the plaintiff was, however, declined by the trial court on the ground that the suit being one essentially for enforcing the rights of the plaintiff over the plaint schedule property, the declaration sought by the plaintiff is not necessary to meet the ends of justice. It was also observed by the trial court that the plaintiff has not sought any consequential reliefs on the basis of the declaration sought in the suit. The defendant challenged the decision of the trial court in appeal. The appellate court found that the suspension of the defendant from the office of the Secretaryship of the Diocese is invalid and that the defendant is in possession of the plaint schedule property. In the light of the said findings, the appellate court reversed the decision of the trial court and dismissed the suit. The plaintiff is aggrieved by the said decision of the appellate court. Hence, this second appeal. 4. It is seen that during the pendency of the second S.A.No.687 of 1999 : 7 : appeal, the defendant died and his legal representatives were brought on record as additional respondents 2 to 4 in the appeal. It is also seen that earlier, after the impugned judgment, the defendant transferred the plaint schedule property on behalf of the Church to his wife, the second respondent, and she, in turn, transferred the same to a third party. The transferee of the property from the second respondent was also brought on record in the second appeal as fifth respondent. 5. Heard the learned counsel for the parties. 6 The learned counsel for the appellant pointed out that as found by the courts below, the suit was one essentially for enforcing the rights of the Diocese of the Church in the plaint schedule property. It was also pointed out by the learned counsel, placing reliance on Ext.A7 title deed of the plaint schedule property, that the plaint schedule property is one purchased by the Diocese of the Church. It was contended by the learned counsel that the S.A.No.687 of 1999 : 8 : only question before the appellate court, in the circumstances, was as to whether the Diocese was in possession of the plaint schedule property at the time of institution of the suit. According to the learned counsel, in so far as it was found by the trial court that the plaintiff is the Bishop of the Diocese of the Church, the appellate court ought not have found that the defendant is in possession of the plaint schedule property. According to the learned counsel, even assuming that the defendant continued to be the Secretary of the Diocese of the Church, he can be considered only as an agent of the Diocese. It was contended by the learned counsel that an agent can never assert possession of an item of immovable property against his principal. 7. Placing reliance on the various documents produced by the defendant, the learned counsel for the fifth respondent contended that the finding rendered by the trial court that the plaintiff is the Bishop of the Diocese of the S.A.No.687 of 1999 : 9 : Church is incorrect. According to the learned counsel, as the plaintiff was not the Bishop of the Diocese of the Church as on the date of institution of the suit, the suit should have been dismissed holding that the plaintiff has no _locus standi_ to institute the suit. According to the learned counsel, if it is found that the plaintiff had no _locus standi_ to institute the suit, the second appeal at his instance is not maintainable. 8. After hearing the learned counsel for the parties, the following substantial questions of law have been formulated for decision in the second appeal: _(i) Is the finding of the trial court that the plaintiff is the Bishop of the Diocese of the Church sustainable in law?_ _(ii) Whether the defendant, even if it is accepted that he continued to be the Secretary of the Diocese, can set up a claim of possession over the plaint schedule property against his principal namely the Church represented by its Bishop?_ 9. Issue No.2 in the suit was as to whether the S.A.No.687 of 1999 : 10 : plaintiff is the Bishop of the Diocese of the Church. As noted, on an elaborated consideration of the materials on record, the trial court found that the plaintiff is the Bishop of the Diocese of the Church as on the date of the institution of the suit. Though the defendant challenged the said finding in appeal, the appellate court did not interfere with the said finding. In so far as the defendant challenged the finding rendered by the trial court in the suit on issue No.2 and in so far as the appellate court did not interfere with the said finding, according to me, the defendant is precluded from challenging the said finding in the second appeal filed by the plaintiff. Even otherwise, the finding rendered by the trial court on issue No.2 being one on a pure question of fact, unless it is demonstrated that the finding is perverse for any reason, this Court cannot interfere with the said finding in exercise of the power under Section 100 of the Code of Civil Procedure, 1908. It was not demonstrated by the fifth respondent that the finding rendered by the trial court on S.A.No.687 of 1999 : 11 : issue No.2 is perverse in any manner. In the circumstance, question No.1 is answered in favour of the plaintiff. 10. A close reading of the appellate judgment would indicate beyond doubt that the appellate court was proceeding on the basis that as the suspension of the defendant from the office of the Secretary of the Diocese of the Church was found to be illegal, he must be deemed to have been in possession of the plaint schedule property. Ext.A7 reveals that the plaint schedule property is one acquired by the Church. The defendant does not claim any independent right in the plaint schedule property. His contention in the suit was only that he was the Bishop of the Diocese of the Church as on the date of the institution of the suit and that he was possessing the plaint schedule property in his capacity as the Bishop of the Diocese. As noted, this case of the defendant has not been accepted by the trial court. The trial court held that the plaintiff was the Bishop of the Church as on the date of institution of the suit. The S.A.No.687 of 1999 : 12 : said finding of the trial court has not been interfered with by the appellate court. Instead, the appellate court only found that the suspension of the defendant from the office of the Secretary of the Diocese is invalid. Even if the said finding of the appellate court is accepted, the defendant can only claim that he was the Secretary of the Diocese as on the date of institution of the suit. As Secretary of the Diocese, the defendant can only be treated as the agent of the Diocese. It is beyond dispute that the suit is one instituted by the Bishop of the Church on behalf of the Diocese to enforce its rights over the plaint schedule property. In other words, the plaintiff is the principal and the defendant is the agent. It is trite that an agent holds principal's property only on behalf of the principal. He acquires no interest for himself in his property. He cannot deny the title of the principal to the property. The possession of the agent is the possession of the principal for all purposes. [See _**Southern Roadways Ltd., Madurai v. S.M. Krishnan** [(1989) 4 SCC 603]_ and S.A.No.687 of 1999 : 13 : _**Narayani Amma v. Bhaskaran Pillai and others** [AIR 1969 Ker 214]._ In the light of the aforesaid principles, the finding rendered by the appellate court that the defendant is in possession of the property is unsustainable in law. Question No.2 is thus answered in favour of the plaintiff. In the result, the second appeal is allowed, the impugned decision of the appellate court is set aside and the decision of the trial court is restored. Sd/- **P.B.SURESH KUMAR JUDGE** rsr