SA.No.106 of 2000 & SA.No.107 of 2000, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** ## **SA.No.106 of 2000** **AGAINST THE JUDGMENT AND DECREE DATED 03-01-2000 IN AS 124/1998 of DISTRICT COURT,THRISSUR** **AGAINST THE JUDGMENT AND DECREE DATED 28-01-1998 IN OS 28/1997 of MUNSIFF COURT, WADAKKANCHERRY** ## **APPELLANTS(APPELLANTS/DEFENDANTS 10 TO 13):** - **1 T.I.KUMARAN** **AGED 64 YEARS, S/O.THACHATTIRI ITTAMAN, KANIPPAYYUR VILLAGE, DESOM, REPRESENTING ANNAM KULANGARA BAGHAVATHY KSHETRA BHARANA SAMITHY AS ITS PRESIDENT.** - **2 T.I.KUMARAN, AGED 64 YEARS, S/O.THANCHATTIRI ITTAMAN, KANIPPAYYUR VILLAGE, DESOM, THALAPPALLY TALUK.** - **3 K.R.RAJEEV, AGED 29, S/O.KARITHULLY RAGHAVAN, KANIPPAYYUR VILLAGE, DESOM, IN HIS PERSONAL CAPACITY REPRESENTING KANIPPAYYUR ANNAM KULANGARA BHAGAVATHY KSHETRA SAMITHY AS SECRETARY.** - **4 CHANDRAN,** - **AGED 36, S/O.PANAKKATTUPARAMBIL THAMI, KANIPPAYYUR VILLAGE, DESOM, IN HIS PERSONAL CAPACITY REPRESENTING KANIPPAYYUR ANNAM KULANGARA BHAGAVATHY KSHETRA SAMITHY AS VICE PRESIDENT.** ## **BY ADV. SRI.T.M.ABDUL LATIFF** ## **RESPONDENTS:(RESPONDENTS 1 TO 27 & PLAINTIFFS 1 AND 2/** **DEFENDANTS 1 TO 9 AND 14 TO 29)** **1 K.S.NARAYANAN NAMBOODIRI, AGED 61, S/O.KANIYAPPAYYUR MANAKKAL SUBRAMANIAN NAMBOODIRIPAD, ELECTRICIAN, KANIPPAYYUR VILLAGE, DESOM, THALAPPALLY TALUK.** [SA 106/2000,SA.107/2000] 2 - **2 SREEDEVI ANDHARJANAM, AGED 52, AGED 57 YEARS, W/O.KANIYAPPAYYUR SUBRAMANIAN NAMBOODIRI, KANIPPAYYUR VILLAGE, DESOM, THALAPPALLY TALUK.** - **3 K.S.PARAMESWARAN NAMBOODIRI, S/O.KANIYAPPAYYUR SUBRAMANIAN NAMBOODIRI, KANIPPAYYUR VILLAGE, DESOM, THALAPPALLY TALUK.** - **4 K.S.KRISHNAN NAMBOODIRI, AGED 45 YEARS,S/O.KANIYAPPAYYUR SUBRAMANIAN NAMBOODIRI, KANIPPAYYUR VILLAGE, DESOM, THALAPPALLY TALUK.** - **5 K.S.SUBRAMANIAN NAMBOODIRI, AGED 57 YEARS,S/O.KANIPPAYYUR SUBRAMANIAN NAMBOODIRI, KANIPPAYYUR VILLAGE, DESOM, THALAPPALLY TALUK.** - **6 K.K.KRISHNAN NAMBOODIRI, AGED 55 YEARS,S/O.KANIPPAYYUR KRISHNAN NAMBOODIRI, SANKARA NILAYAM, KANIPPAYYUR VILLAGE, DESOM, THALAPPILLY TALUK.** - **7 K.K.NARAYANAN NAMBOODIRI, AGED 39 YEARS,S/O.KUNNATH RADHA AMMA, S/O.KANIPPAYYUR KRISHNAN NAMBOODIRI, SANKARA NILAYAM, KANIPPAYYUR VILLAGE DESOM, THALAPPILLY TALUK.** - **8 K.K.PARAMESWARAN NAMBOODIRI, S/O.KANIPPAYYUR KRISHNAN NAMBOODIRI, PATTAYAPURA, MANIPPAYYUR MANA, VENKITANGU VILLAGE, ENAMAVU DESOM, CHAVAKKAD TALUK.** - **9 K.V.VIJAYAN NAMBOODIRI, AGED 49 YEARS, S/O.KANIPPAYYUR VASUDEVA NAMBOODIRI, KANIPPAYYUR MANA, VENKITANGU VILLAGE, ENAMAVU DESOM, CHAVAKKAD TALUK.** - **10 K.P.NEELAKANTAN NAMBOODIRI, S/O.KANIPPAYYUR VASUDEVAN NAMBOODIRI,VILLAGE DESOM, THALAPPILLY TALUK.** - **11 K.P.PARAMESWARAN ALIAS CHERIKUTTAN NAMBOODIRI, S/O.K.S.SUBRAMANIAN NAMBOODIRIPAD, KANIPPAYYUR VILLAGE DESOM, THALAPPILLY TALUK.** - **12 V.N.GOVINDAN NAIR, AGED 58 YEARS, EMPLOYEE IN PAPER MILL, KANIPPAYYUR VILLAGE DESOM, IN HIS PERSONAL CAPACITY AND** [SA 106/2000,SA.107/2000] 3 ## **REPRESENTING ANNAPOORNESWARI POORAKHOSHA COMMITTEE, KANIPPAYYUR AS ITS PRESIDENT.** - **13 K.UNNIKRISHNAN, AGED 35 YEARS, PRINTER, KUNNATHUVEETIL, KANIPPAYYUR VILLAGE DESOM, IN HIS PERSONAL CAPACITY AS WELL AS REPRESENTING SEEMOOLASTHANAM POORAKHOSHA COMMITTEE.** - **14 KALLATTUVEETIL SUDHAKARA KURUP, KANIPPAYYUR VILLAGE, DESOM, THALAPPILLY TALUK , IN HIS PERSONNAL CAPACITY AS WELL AS REPRESENTING KSHETRA NADA POORAKOSHA COMMITTEE, KANIPPAYYUR.** **15 P.V.UNNIKRISHNAN, (REMOVED) AGED 25 YEARS, S/O.PANEKKAPARAMBIL APPUKUTTAN, IN HIS PERSONAL CAPACITY ALSO REPRESENTING BANAKARAPOORAM POORAHOSHA COMMITTEE. THE RESPONDENT NO. 15 IS REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 07.12.2018 IN IA 3/018** - **16 C.C.RAJEEV, AGED 55 YEARS, KANIPPAYYUR VILLAGE DESOM, TALAPPILLY TALUK, PERSONALLY AS ALSO REPRESENTING CHOONAMPARA POORAKOSHA COMMITTEE, KANIPPAYYUR AS ITS PRESIDENT.** - **17 T.K.TILAKAN, AGED 36 YEARS, S/O.THIRUTHIYIL VEETTIL KOCHUKRISHNAN, KANIPPAYYUR VILLAGE DESOM, THALAPPILLY TALUK, PERSONALLY AND REPRESENTING BALASANGAM POORAGHOSHA COMMITTEE, KANIPPAYYUR.** - **18 G.A.RADHAKRISHNA, AGED 56 YEARS, ODATTUVEEDU, KANIPPAYYUR VILLAGE DESOM, PERSONALLY AND REPRESENTING KANIYAMBAL BALASANGAM POORAGHOSHA COMMITTEE, KANIPPAYYUR.** - **19 K.V.KRISHNAN, AGED 54 YEARS, KARTHULLY HOUSE, KANIPPAYYUR VILLAGE DESOM, PERSONALLY AND REPRESENTING YUVASANGAM POORAGHOSHA COMMITTEE.** - **20 GIREESH, AGED 24 YEARS, S/O.ASARI THANKAMON, GANDHINAGAR STREET, KUNNAMKULAM, PERSONALLY AND REPRESENTING VADAKUMURI POORAGHOSHA COMMITTEE, GANDHINAGAR, KUNNAMKULAM AS PRESIDENT.** - **21 K.K.BHASKARAN, AGED 45 YEARS, GOLD WORKER, SOORYA NIVAS, NEAR** [SA 106/2000,SA.107/2000] 4 **ADAPOOTTY PALLY, KANIPPAYYUR VILLAGE DESOM, PERSONALLY AND REPRESENTING SANTHY NAGAR, POORAGHOSHA COMMITTEE, KIZHAKKUMURI, MANIPPAYYUR.** - **22 K.K.ACHUTHAN, AGED 40 YEARS, BANK EMPLOYEE, PAREMPADAM, SANKARAPURAM THRIVENI POORAGHOSHA COMMITTEE AS ITS PRESIDENT.** - **23 C.N.BALAN,** - **AGED 35 YEARS, S/O.KIZHAKKUMURI NEELAKANDAN, KANIPPAYYUR VILLAGE MANTHOP DESOM, THALAPPILLY TALUK, PERSONALLY AND REPRESENTING VANDANAKALAVADI POORAGHOSHA COMMITTEE AS ITS PRESIDENT.** - **24 P.C.VIJEESH, AGED 23 YEARS, S/O.PONNARASSERY VEETTIL CHANDRAN, REPRESENTING THE VANDANA KALAVADI POORAGHOSHA COMMITTEE AS ITS PRESIDENT, MANIPPAYYUR VILLAGE DESOM, THALAPPILLY TALUK.** - **25 P.P.VASU, AGED 48 YEARS, EDATHARA HOUSE, KANIPPAYYUR VILLAGE, MANTHOPPE DESOM, PERSONALLY AND REPRESENTING KIZHAKKUMURI PAZHAYA POORAGHOSHA COMMITTEE AS PRESIDENT.** - **26 SHIJU, AGED 24 YEARS, S/O.MANI, POLICE QUARTERS, TRICHUR ROAD, KANIPPAYYUR VILLAGE DESOM, PERSONALLY AND REPRESENTING YUVACHAITHANYA POORAGHOSHA COMMITTEE AS PRESIDENT.** ## **27 SEKHARAN,** **AGED 61 YEARS, MELAVEETTIL, KANIPPAYYUR VILLAGE, DESOM, PERSONALLY AND REPRESENTING YUVASANGAM POORAGHOSHA COMMITTEE AS PRESIDENT.** - **R1 & R2 BY ADVS.** **SRI.P.VIJAYA BHANU (SR.) SMT.MINI JOHN PAREMABIL BY ADVS. SRI.A.MOHAMED RASHEED - R14,R16 TO R20 SRI.WILSON URMESE - R3 TO R11 SRI.VINOY VARGHESE -R21 TO R27** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, ALONG WITH SA.107/2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** [SA 106/2000,SA.107/2000] 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** ## **SA.No.107 of 2000** **AGAINST THE JUDGMENT AND DECREE DATED 03-01-2000 IN AS 125/1998 of DISTRICT COURT,THRISSUR** **AGAINST THE JUDGMENT AND DECREE DATED 28-01-1998 IN OS 324/1996 of MUNSIFF COURT, WADAKKANCHERRY** ## **APPELLANTS:(APPELLANTS/PLAINTIFFS)** **1 KUMARAN AGED 64 YEARS, S/O THACHATTIRI ITTAMAN, KANIPPAYYUR VILLAGE-DESOM IN PERSONAL CAPACITY REPRESENTING ANNAM KULANGARA BAGHAVATHY KSHETRA BHARANA SAMITHY AS ITS PRESIDENT AND REPRESENTING THE HINDU WORSHIPPERS OF KANIPPAYYUR VILLAGE.** **2 CHANDRAN, AGED 36, S/O.PANAKKATTUPARAMBIL THAMI, KANIPPAYYUR VILLAGE, DESOM, IN HIS PERSONAL CAPACITY REPRESENTING KANIPPAYYUR ANNAM KULANGARA BHAGAVATHY KSHETRA SAMITHY AS VICE PRESIDENT AND REPRESENTING THE HINDU WORSHIPPERS OF KANIPPAYYUR VILLAGE.** **3 RAJEEVEN, AGED 29, S/O.KARITHULLY RAGHAVAN,KANIPPAYYUR VILLAGE, DESOM, IN HIS PERSONAL CAPACITY REPRESENTING KANIPPAYYUR ANNAM KULANGARA BHAGAVATHY KSHETRA SAMITHY AS SECRETARY AND REPRESENTING THE HINDU WORSHIPPERS OF KANIPPAYYUR VILLAGE.** **BY ADV. SRI.T.M.ABDUL LATIFF** ## **RESPONDENTS(RESPONDENTS/DEFENDANTS):** **1 KANIPPAYYUR PARAMESWARAN NAMBHOODIRI,** [SA 106/2000,SA.107/2000] 6 ## **AGED 61, S/O.KANIYAPPAYYUR MANAKKAL SUBRAMANIAN NAMBOODIRI, KANIPPAYYUR VILLAGE, DESOM, THALAPPALLY TALUK.** - **2 NARAYANAN NAMBOODIRI, AGED 61, S/O.KANIYAPPAYYUR MANAKKAL SUBRAMANIAN NAMBOODIRI, ELECTRICIAN,KANIPPAYYUR VILLAGE, DESOM, THALAPPALLY TALUK.** - **3 SUBRAMANIAN NAMBOODIRI, AGED 57 YEARS, S/O.KANIYAPPAYYUR MANAKKAL SUBRAMANIAN NAMBOODIRI, ELECTRICIAN,KANIPPAYYUR VILLAGE, DESOM, THALAPPALLY TALUK.** - **4 KRISHNAN NAMBOODIRI, AGED 55 YEARS, S/O.KANIYAPPAYYUR MANAKKAL SUBRAMANIAN NAMBOODIRI, KANIPPAYYUR VILLAGE, DESOM, THALAPPALLY TALUK.** - **5 AGED 28 YEARS,** ## **PARAMESWARAN NAMBOODIRI,** - **S/O.KANIYAPPAYYUR MANAKKAL SUBRAMANIAN NAMBOODIRI, KANIPPAYYUR VILLAGE, DESOM, THALAPPALLY TALUK.** - **6 UNNIKRISHNAN, AGED 47 YEARS,S/O.PAZHOOR KALIKUTTY AMMA, KANIPPAYYUR VILLAGE DESOM, THALAPPALLY TALUK.** - **7 RAGHAVAN NAIR, AGED 77 YEARS, S/O.PALLATH LAKSHMI AMMA, KANIPPAYYUR VILLAGE DESOM, THALAPPALLY TALUK.** - **8 UNNIKRISHNAN,** - **AGED 39 YEARS, S/O.KUNNATH RADHA AMMA, KANIPPAYYUR VILLAGE DESOM, THALAPPALLY TALUK.** - **9 BHARADAN** - **AGED 58 YEARS, S/O.VALIATHARI DEVAKI AMMA, KANIPPAYYUR VILLAGE DESOM, THALAPPALLY TALUK.** ## **10 RAJENDRAN,** **AGED 28, S/O.VELLATHARI DEVAKI AMMA, KANIPPAYYUR VILLAGE DESOM,** [SA 106/2000,SA.107/2000] 7 ## **THALAPPALLY TALUK.** - **11 SANKARANARAYANAN,** **AGED 46 YEARS, S/O.PAZHORA KALIKUTTY AMMA, KANIPPAYYUR VILLAGE DESOM, THALAPPALLY TALUK.** - **12 RAMACHANDRAN,** **AGED 39 YEARS,S/O.VULLANATTU PADMINIAMMA, KANIPPAYYUR VILLAGE DESOM, THALAPPALLY TALUK.** - **13 PARAMESWARAN, AGED 47 YEARS,S/O.VELLATHARI MOOKAMIAMMA, KANIPPAYYUR VILLAGE DESOM, THALAPPALLY TALUK.** **R1 TO R5 BY ADVS. SRI.P.VIJAYA BHANU (SR.) SMT.MINI JOHN PAREMABIL SRI.WILSON URMESE - R6 TO R11** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2019, ALONG WITH SA.106/2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** [SA 106/2000,SA.107/2000] 8 ## **JUDGMENT** Two suits were instituted. One is by an Illom people, two in number. The other is by an unregistered congregation/association styled as a committee constituted for the purpose of well being of a temple. The committee instituted the suit in O.S.No.324/1996 for a declaration that they are entitled to administer the temple. The other suit in O.S.No.28/1997 filed by two members of the Illom, the husband and wife, for declaration that the temple belongs to the plaintiffs and the defendants 1 and 2 and that it is a private temple. The suit filed by the committee in O.S.no.324/1996 was dismissed by both the court below. The other suit in O.S.No.28/1997 decreed by the Trial Court. In appeal, it was confirmed with a modification reserving the right of worship to the defendants and the people in the locality. The leading case is O.S.No.324/1996. The plaintiff committee in the leading case was constituted by themselves and Ext.A1 bye-law was adopted in the year 1987. They were [SA 106/2000,SA.107/2000] 9 administering the temple based on the consent and permission granted by the defendants. The temple is now situated in a property having an extent of 17 cents. ## 2. The dispute is pertaining to the administration of the temple. According to the plaintiff committee they were given the administration of temple by the defendants family and consequently they have adopted a bye-law, Ext.A1 for the purpose of administering the temple and from that day onwards they were administering the temple. _Inter alia,_ reliance was placed on Ext.A14 signed by the first plaintiff along with other members of the family by which a permission was granted to administer the temple authorizing one Kuttan Namboodhiri to represent the committee and to supervise the decision, if any, taken by the committee. There is no dispute that the temple property was obtained by the Illom under Ext.B1 and B2 documents. In the earlier partition deed, this property was kept in common and it was allotted to the share of one of the branch. In turn the branch entered into two other partition, Ext.B1 and B2. [SA 106/2000,SA.107/2000] 10 3. What is advanced by the plaintiffs in the leading case is that they were granted a right to administer the temple. No documentary evidence adduced except Ext.A14 in that behalf and the bye-law constituted by themselves Ext.A1. It is of the year 1987. The connected suit was filed by the family members for declaring their ownership over the property and to declare that the temple is a private temple belong to the family. _Inter alia_ , it was contended by the appellants that earlier there was a dedication by the family members. By virtue of the dedication, the temple acquired the character of public temple from a private temple. It is by virtue of the dedication a committee was constituted among the people in the locality and adopted Ext.A1 bye-law and was administering the temple. In order to show any dedication, nothing was brought to the notice of this court except Ext.A1 bye-law and Ext.A14 document. The other documents produced by the plaintiffs in O.S.No.324/1996 would show that for certain time they were administering the temple, may be under the leadership of Kuttan Namboodiri. But, that doesn't mean that there is a dedication of [SA 106/2000,SA.107/2000] 11 temple to the public. Mere giving of administration for the convenient running of the temple or observation of religious rituals cannot be brought under the purview of a dedication. Nothing was brought to the notice of this Court inorder to satisfy any dedication as claimed by the plaintiffs in the leading case. Two decisions of Apex Court were relied on by the learned counsel for the appellants, _**Sree Sree Ishwar Sridhar Jew v. Mst. Sushila Bala Dasi and others (AIR 1954 (SC) 69)**_ and _**M. Dasaratharami Reddi and another v. D.Subba Rao and**_ _**others (AIR 1957 SC 797).**_ Those decisions are standing on a different footing dealing with question of dedication and its impact transforming a private temple into a public temple. When there is no evidence to show any dedication to the public or to the deity in respect of immovable property, wherein the temple is situated, the property and temple can only be construed as a private temple belonged to the family of defendant in the leading case. 4. It is made clear that the protection given to the worshipers by the First Appellate Court is not under challenge and as such there cannot be any [SA 106/2000,SA.107/2000] 12 interference to the said decree permitting the worshipers to enter into the property for the purpose of worship and to observe the religious ceremonies, if any available with the worshipers. 5. Nothing else was brought to the notice of this court inorder to have an interference with the decree and judgment of both the Trial Court and the First Appellate Court. The concurrent finding rendered by both the courts below on factual issue cannot be interfered unless there is perversity or warranting reason. None of the question raised at the time of admission of appeal is involved in the appeal. The appeal deserves only a dismissal, but without cost. Both the appeals are dismissed. No costs. ## **Sd/-** ## **P.SOMARAJAN** ## **JUDGE** msp //TRUE COPY// P.A. TO JUDGE