Sree Narayana Dharma Paripalana Yogam, Branch No.1103, Poothotta v. Ammini and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 30TH JANUARY 2008/10TH MAGHA 1929 AS.No. 199 of 1999() -------------------- AGAINST O.S.NO.69/1980 OF II ADDITIONAL SUB COURT, ERNAKULAM ## APPELLANTS/PLAINTIFFS: ----------- 1. SREE NARAYANA DHARMA PARIPALANA YOGAM, BRANCH NO.1103, POOTHOTTA (CONSTITUENT OF THE ARUVIPURAM S.N.D.P. YOGAM, QUILON REGISTERED UNDER THE COMPANIES ACT OF TRAVANCORE (UNDER SECTION 26 OF REGULATION 1 OF 1063 OF ' TRAVANCORE, AND IS NOW GOVERNED BY THE PROVISIONS OF THE COMPANIES ACT, 1956) BY ITS PRESENT SECRETARY P.A.MURALEEDHARAN, AGED 47, E.D.POSTMASTER, S/O.AYYAPPAN, PARAYEDATHU, POOTHOTTA P.O., MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. - (*)2. K.K.DAMODARAN, AGED ABOUT 65 YEARS, NEPHEW OF K.C.KUNJAN PANICKER OF KOCHIPARAMBIL HOUSE, NOW RESIDING AT KOCHAKATHOOTTU, SOUTH PARUR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. (DIED. LRS IMPLEADED) - (**)3. K.K.KRISHNANKUTTY, AGED ABOUT 63 YEARS, NEPHEW OF K.C.KUNJAN PANICKER OF KOCHIPARAMBIL HOUSE, NOW RESIDING AT KRISHNA VIHAR, SOUTH PARUR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. (DIED. LRS IMPLEADED) 4. KARUNAKARAN, AGED ABOUT 56 YEARS, NEPHEW OF NARAYANA PANICKER OF KOCHIPARAMBIL HOUSE, NOW RESIDING AT PUTHEN VEEDU, SOUTH PARUR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. ## ADDL.5TH APPELLANT: 5. SREEDEVI, W/O. K.KRISHNANKUTTY, KRISHNA VIHAR, SOUTH PARUR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. - (**)THE THIRD APPELLANT DIED AND ADDITIONAL 5TH APPELLANT IS IMPLEADED AS THE LR'S OF DECEASED THIRD APPELLANT AS PER ORDER IN IA NO.338/2007 DATED 1.2.2007. AS NO.199/1999 2 ADDL.6TH APPELLANT: 6. JAYACHANDRAN, D., S/O.LATE K.K.DAMODARAN, NEPHEW OF K.C.KUNJAN PANICKER OF KOCHIPARAMBIL HOUSE, NOW RESIDING AT KOCHAKATHOOTTU, SOUTH PARUR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. (*)THE SECOND APPELLANT DIED. THE ADDITIONAL 6TH APPELLANT IS IMPLEADED AS PER THE ORDER IN IA NO.3083/2007 DATED 17.8.2007. BY ADV. SRI.M.RAJASEKHARAN NAYAR RESPONDENTS/DEFENDANTS 1 TO 10, 12 TO 16 LEGAL HEIRS OF LATE 11TH DEFENDANT AND LEGAL HEIRS OF DEFENDANT NO.17: - ------------- 1. AMMINI, D/O.OOLI, AGED ABOUT 45 YEARS, RESIDING AT KARANAMKODATHU HOUSE, ELAVALLI SOUTH P.O., PARAPPUR. 2. JANAKI, D/O.EDAYAODIYIL KUMARI, AGED 57 YEARS, RESIDING AT PUTHENKAVUTHAZHATHU, POOTHOTTA P.O., SOUTH PARUR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 3. KARTHIKEYAN, S/O.JANAKI, AGED ABOUT 32 YEARS, -DO- -DO- 4. VAMANAN, S/O.JANAKI, AGED ABOUT 30, -DO- -DO- 5. PUSHKARAN, S/O.JANANKI, AGED ABOUT 27, -DO- -DO- 6. OMANA, D/O.JANAKI, AGED ABOUT 25 AND W/O.MURALI, KULATHUMPURATHU VEEDU, VYTTILA, COCHIN 19. 7. DEVAYANI, D/O.JANAKI, AGED ABOUT 22 AND W/O.T.K.HARILAL, THIRUNILATHU VEEDU, VYTTILA, COCHIN 19. 8. INDIRA, D/O.JANAKI, AGED ABOUT 20, RESIDING AT PUTHENKAVUTHAZHATHU, POOTHOTTA P.O., SOUTH PARUR. 9. SATHYABHAMA, D/O.JANAKI, AGED ABOUT 19 YEARS, -DO- -DO- 10. UNNI, S/O.JANAKI, AGED ABOUT 14 YEARS, MINOR BY MOTHER AND GUARDIAN THE 2ND DEFENDANT, -DO- -DO- 11. V.SANKARAN, AGED 72 YEARS, NEPHEW OF VELAYUDHA PANICKER OF KOCHIPARAMBIL HOUSE, NOW RESIDING AT GOVINDA MANDIRAM, KATTAKADA, PERUMKULAM VILLAGE, TRIVANDRUM DISTRICT (DIED) 12. DEVAYANI, AGED ABOUT 55, WIFE OF K.K.GOVINDAN, PANANGAMPALLIL, SHERTHALLAI, ALLEPPEY DISTRICT. AS NO.199/1999 3 13. VALSALA, D/O.DEVAYANI, AGED ABOUT 35, -DO- -DO- 14. ANANDAN, S/O.DEVAYANI, AGED 33, -DO- -DO- 15. CHANDRIKA, D/O.DEVAYANI, AGED 29, -DO- -DO- 16. NANDAKUMARI, D/O.DEVAYANI, AGED 20, -DO- -DO- 17. K.K.KUNJAN, RETIRED EXCISE INSPECTOR, AGED ABOUT 61 YEARS, NEPHEW OF K.C.KUNJAN PANICKER OF KOCHIPARAMBIL HOUSE, NOW RESIDING AT ALUMKAL HOUSE, SOUTH PARUR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT TO REPRESENT ALL MEMBERS OF THE KOCHIPARAMBIL FAMILY, SOUTH PARUR, POOTHOTTA (DIED) 18. SARASAMMA, AGED ABOUT 60, HOUSEWIFE, W/O.V.SANKARAN, RESIDING AT GOVINDA MANDIRAM, KATTAKADA, PERUMKULAM VILLAGE, NEDUMANGAD TALUK, TRIVANDRUM DISTRICT, KATTAKADA P.O. 19. BALARAMAN, S/O.V.SANKARAN, AGED 45, GOVINDA MANDIRAM, KATTAKADA P.O., NOW WORKING AS PRINCIPAL, S.N.COLLEGE, ALATHUR. 20. RAVI, ADVOCATE, AGED 42, S/O.V.SANKARAN, GOVINDA MANDIRAM, KATTAKADA P.O. - (*)21. SASI, AGED ABOUT 40, EMPLOYED IN KSRTC, S/O.V.SANKARAN, -DO- - (*)22. SARADA, AGED ABOUT 48, HOUSEWIFE, D/O.V.SANKARAN, -DO- -DO- - (*)23. SUMA, AGED ABOUT 38, ENGINEER, D/O.V.SANKARAN, -DO- -DO- - (*)24. RAMA, AGED ABOUT 38, HOUSEWIFE, D/O.V.SANKARAN, -DO- -DO- 25. K.K.DHANADEVAN, AGED 52, S/O.K.K.KUNJAN, ALUMGAL HOUSE, POOTHOTTA P.O., VIA UDAYAMPEROOR, PIN 682 307, MANAKUNNAM, KANAYANNUR TALUK. 26. K.K.VALSAMMA PRASANNAN, AGED ABOUT 50, D/O.K.K.KUNJAN, VATHIAKKATTU VEEDU, PERUMBALAM P.O., VIA CHERTHALA, ALAPPUZHA DISTRICT. 27. K.K.SOMANATHAN, AGED ABOUT 46, ALUNGAL HOUSE, POOTHOTTA P.O., VIA UDAYAMPEROOR, KANAYANNUR TALUK - 682 307. 28. K.K.SATHEESAN, AGED ABOUT 43, S/O.K.K.KUNJAN, ALUNGAL HOUSE, POOTHOTTA P.O., VIA UDAYAMPEROOR 682 307. 29. SATHEEDEVI PRADEEPAN, PUTHENPURAYIL, MANAPPURAM P.O., CHERTHALA (VIA), ALAPPUZHA DISTRICT. AS NO.199/1999 4 30. LAKSHMIKUTTY, AGED ABOUT 68, W/O.LATE K.K.KUNJAN, ALUNGAL HOUSE, POOTHOTTA P.O., VIA UDAYAMPEROOR 682 307. (*)R21 TO R24 REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 30.1.2008 IN IA NO.3896/2007. BY ADV. SRI.M.C.SEN (SR.) & SHRI R.PARTHASARATHY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/12/2007 ALONG WITH A.S.No.449/1999, THE COURT ON 30.01.2008 DELIVERED THE FOLLOWING: ## **“C.R.”** ## **K. PADMANABHAN NAIR ,J.** **------------------------------------------------A.S.Nos199 of 1999 & 449 of 1999 ------------------------------------------------Dated, this the 30[th] day of January, 2008. JUDGMENT** These two appeals arise from the decree and judgment passed by the court below in O.S.No.69/1980. A.S.No.199/1999 was filed by the plaintiffs challenging that part of the decree by which their prayer for recovery of plaint B and C schedule properties was disallowed. A.S.No.449/1999 was filed by defendants 2 to 10 and 12 to 16 challenging a finding of the Land Tribunal that they are not entitled to get fixity of tenure over 69 cents of land which is part of B schedule. For the sake of convenience the parties will be referred to as arrayed in the court below. 2. Plaintiffs filed the suit for a declaration that B and C schedule properties and the temples situated in B schedule are in the ownership and possession of first plaintiff and defendants 2 to 10 have no manner of right, title, interest or possession over B and C schedule properties and also for directing defendants 1 to 10 and 12 to 17 not to disturb the peaceful possession of plaintiffs over B and C schedule properties and in the alternative for recovery of possession of B and C schedule properties and temples from defendants 2 to 10 with mesne profits. AS NOS.199 & 449/1999 -: 2 :- 3. The following are the material averments in the plaint. Plaint A, B and C schedule properties originally belonged to Kochiparambil Family, an Ezhava Family following Marumakkathayam law and governed by Travancore Ezhava Act. Plaint A schedule was given to Poothotta Ezhava Samajam by the Kochiparambil Family. Ownership and possession of A schedule property vested in the said Samajam. Subsequently the right, title and interest of the Samajam devolved upon the first plaintiff SNDP Branch at Poothotta. In plaint A schedule there is a Shiva temple in which deity was installed by Sree Narayana Guru Swami in 1068 M.E.. A high school and office buildings owned by the first plaintiff are also situated in that property. The Government Primary School is functioning in a building put up by the Government with the permission of first plaintiff. Though the area of A schedule is stated as 2 acres 97 cents in the revenue records the actual extent is 2 acres 30 cents. It is owned and possessed by the first plaintiff and no one have any manner of title, right or possession over it. On 4.11.1098 a partition was effected by the Kochiparambil Family as per document No.4027/1098. The Family was divided into eight branches. I schedule in the partition deed was kept as a common property. A reading of the description would give an impression that plaint A schedule was also included in that schedule but long prior to that date A schedule property was given to the first plaintiff's predecessor-in-interest. The property included in I schedule was plaint B and C schedules. It was provided that the income from B and C schedule AS NOS.199 & 449/1999 -: 3 :- should be utilised for the maintenance of the common ancestress Cheerapennu and for the annual thatching of common building. It was also provided that income derived from the temple situated in B schedule shall be utilised to meet the expenses of ceremonies and day today affairs of that temple. It was further provided that after Cheerappennu's death the eldest male member of the family should keep possession of the property and utilise the income from B and C schedule properties for the conduct of the ceremonies of the temple. He should maintain proper accounts and the same should be scrutinised and approved by the seniormost members of the thavazhies. Rest of the income should be utilised for common purposes. It was also provided that if any documents were to be executed the same should be executed by all executents of the partition deed together. B and C schedule properties were in the possession of the eldest male member of the family who was taking income from the properties and the temple and utilising the same for temple and other purposes as per the partition deed. In the year 1124 Shri K.C.Kunjan Panicker was the eldest member of the family. He was managing B and C schedule properties. At that time Shri Chennan Panicker who was a junior member of the family was a priest of the temple. Late Kunjan Panicker allowed Chennan Panicker to manage B and C schedule properties. Chennan Panicker was managing B and C schedule properties and taking income for the purpose of meeting the expenses of temple and its upkeep. Kunjan Panicker executed document No.2015/1124 of Vaikom registry in favour of AS NOS.199 & 449/1999 -: 4 :- Chennan Panicker in respect of plaint C schedule property. Chennan Panicker was directed to pay Rs.18 and 4 chakrams for the purpose of temple to Kunjan Panicker and to obtain receipt and also to pay tax to the Government. It was averred that the lease deed was purported to be for C schedule property alone. Though the extent was shown as one acre 51 cents, the actual area was only one acre 15 cents and even from that one acre 15 cents some trees were excluded. It was further averred that the lease deed was a bogus and invalid one as it was beyond the powers of Karanavan. Lease deed was never intended to be acted upon and was never acted upon. There was no demarcating boundary between B and C schedule properties. C schedule properties are also necessary for the proper conduct of the temple and its affairs and ceremonies. A building at southwestern portion of C schedule was always used for the residence of the temple priest. Such residence was necessary for the proper and efficient services in the temple. It was averred that C schedule property continued to be in the possession and enjoyment by the temple and family in spite of the lease deed. Chennan Panicker never paid any rent to the Karanavan. No receipts were also issued. Chennan Panicker never claimed any interest on the basis of the lease. B schedule to the plaint is the area over which the temple and appurtenant structures and land are situated. The main deity is “Bhadrakali”. There are other deities also. There are pattambalam, bhajanapura, office building and a shop building situated in the property. The residence of the priest is situated in C schedule property. There is a AS NOS.199 & 449/1999 -: 5 :- temple tank and well in B schedule property. There is thookkathara also in front of the temples. Kochiparambil family got itself divided into various branches. Most of the members are residing far away from the temple and its properties. Since it was difficult to manage the affairs of the temple and properties a decision was taken to entrust the temple and its properties to the first plaintiff for management as the first plaintiff is an institution established and proved for the good and welfare of the community in particular. The 11[th] defendant who was the eldest male member of the family requested the first plaintiff to take up the temple and its properties. All available members of the family together had executed a gift deed in favour of the first plaintiff by document No.163/1979 dated 15.1.1979. It was executed by ten members. Executants 8 and 10 alone were the surviving executants of the partition deed No.4027/1098. As per the said gift deed the entire B and C schedule properties were given possession to the first plaintiff and the first plaintiff was taking income and attending to the agricultural operations in the properties. The keys of the temples were in the possession of defendants 2 to 10. Shri Gopala Panicker became the eldest male member of the family in July, 1976. He was unable to manage the properties and the temple directly. He also allowed Chennan Panicker to look after the properties and temple. Gopala Panicker entrusted keys of the temple with Chennan Panicker. Thereafter second plaintiff Damodara Panicker managed the temple and properties under Gopala Panicker. Gopala Panicker died in 1978. Defendants 3 to 5 continued to be in the AS NOS.199 & 449/1999 -: 6 :- management. After the gift deed first plaintiff informed defendants 3 to 5 that thereafter they need not manage the temple and its properties. But they did not handover the keys to the first plaintiff. Three more persons of Kochiparambil family executed a gift deed in favour of first plaintiff on 24.5.1979 and some other members executed another gift deed in favour of first defendant on 7.6.1979. Chennan Panicker died in the year 1976. His estate was inherited by his daughter first defendant. Chennan Panicker had illicit intimacy with the second defendant during the life time of his wife. Defendants 3 to 10 are the children of Chennan Panicker through the second defendant. Defendants 2 to 10 are not the legal representatives or heirs of Chennan Panicker. They were living with him during his last days and hence they happened to be the residents of the building situated at the south-western portion of C schedule property. Defendants 1 to 10 have no manner of right, title or interest in the plaint schedule properties. 11[th] defendant is the senior-most member of Kochiparambil family. 12[th] defendant claims that she is also a member of the Kochiparambil family. Defendants 13 to 16 are her children. 17[th] defendant is also a member of the Kochiparambil family. There are numerous members in the family. So plaintiffs had instituted the suit in a representative capacity and 17[th] defendant was impleaded as representative of the members of the family. Proceedings under Section 145 of Criminal Procedure Code was initiated by the Sub Divisional Magistrate. In that proceedings a receiver was appointed and he took possession of the properties from the AS NOS.199 & 449/1999 -: 7 :- plaintiffs. There are four buildings in B and C schedule properties which belong to the temple. Those buildings and land are appurtenances to the temple and they are necessary for the convenience and purpose of the temple. Defendants 1 to 10 are not members of the Kochiparambil family though Chennan Panicker was a member of the family. Since B and C schedule properties are trust properties no strangers apart from the members of the family are entitled to have interest on the basis of inheritance. Even otherwise the first plaintiff is entitled to be in joint possession along with other co-owners. If it is found that defendants 1 to 10 have any manner of right plaintiffs are entitled to get recovery of the same. D schedule movables belonged to temple and those movables are necessary for the use and purpose of the temple. Since the 12[th] defendant had filed O.S.No.247/1979 challenging the rights of the first plaintiff, herself and her children are impleaded in the present suit. 4. Defendants 2 to 10 and 12 to 17 filed a joint written statement denying all the averments raised in the plaint. Following were the main contentions. The plaint schedule properties belonged to an ancient Ezhava tarawad at Poothotta by name 'Kochiparambil Tarawad'. The defendants are the members of that tarawad. Plaint A schedule was a part of the Kochiparambil Tarawad and possession vested with the tarawad. There is a temple in A schedule property wherein the idol of Shiva was installed by Sreenarayana Guru Swami. With the consent of then Karanavan of Kochiparambil Tarawad a AS NOS.199 & 449/1999 -: 8 :- building was put up in which Government Primary School is functioning. The properties of Kochiparambil Tarawad were partitioned in the year 1098 M.E. under deed No.4027/1098. The suit properties were not divided but were kept as common properties of the tarawad. The suit properties were included in Schedule I of the above said document. There was also a stipulation in the said partition deed that if any document is to be executed in future with respect to the I schedule properties all members of the Tarawad should jointly execute the same. The suit properties were in the possession of the eldest male member of the Tarawad and he managed the properties utilising the income derived from the properties. One Kunjan Panicker was the eldest member of the Kochiparambil Tarawad during the year 1124. Chennan Panicker was the priest (poojari) of the temple. Kunjan Panicker executed lease deed No.2015/1124 of Vaikom Sub Registry in favour of Chennan Panicker in respect of one acre 51 cents of property comprised in plaint B and C schedule properties. Thereafter Chennan Panicker was in absolute possession and management of the properties. The lease deed executed in favour of Chennan Panicker was a valid document. It was in tune with the terms of partition deed and did not violate any of the provisions of the same. In plaint B schedule properties there are three temples wherein different deities are installed. Two temples are on the southern and northern sides respectively of the B schedule property and the third temple is on the north-eastern side. Apart from the temples there is one bhajanapura and office building in the B AS NOS.199 & 449/1999 -: 9 :- schedule property. The bhajanapura is not used for any purpose and remain closed always. Defendants are residing in their own houses situated in plaint B and C schedule properties. Though some of the members of the tarawad are residing at distant places that will not affect the proper management of the temple. Members of the SNDP Union Poothotta had moved resolutions in the general body meeting of the yogam condemning the acts of plaintiffs in interfering with the smooth running of the temples. The members of the tarawad never made any request to first plaintiff to take over management of the temple. 11[th] defendant has no authority to request the first plaintiff or anybody else to take over the temple and its properties. He is not a member of the Kochiparambil Tarawad and his name does not appear anywhere in the family partition deed No.4027/1098. Gift deeds referred to in the plaint are invalid documents. Very few members of the tarawad had joined in the execution of gift deeds that too in violation of the directions contained in the family partition deed. Chennan Panicker died in the year 1979. Second defendant is his widow and defendants 3 to 10 are his children and they are heirs of late Chennan Panicker. Defendants 2 to 10 were living with Chennan Panicker in the building in the south-western portion of C schedule property and they have absolute right title and interest over the plaint schedule properties. First defendant is a stranger and does not have any manner of right, title or interest in the plaint schedule properties. The 12[th] defendant is a member of the Kochiparambil family and defendants 13 to 16 are AS NOS.199 & 449/1999 -: 10 :- her children. The 17[th] defendant is a stranger to family and does not have any manner of right, title or interest in plaint schedule properties. After the death of Chennan Panicker defendants 2 to 10 are in possession of the properties. 12[th] defendant filed O.S.No.247/1979 before the Munsiff's Court, Ernakulam and that suit was also pending. On account of the difficulties caused by first plaintiff defendants 2 to 10 filed a petition to initiate proceedings under Section 145 of Cr.P.C. and proceedings under Section 145 Cr.P.C. was initiated. A receiver was appointed and the receiver so appointed took possession of the properties. Since Chennan Panicker was a member of the Kochiparambil family, his widow and children are also members of that family. The movables mentioned in the plaint D schedule are in the unlawful custody of first plaintiff. Those movables are necessary for the day today affairs of the temple. Subsequently defendants 2 to 10 and 12 to 16 filed additional written statement contending that in addition to the property covered by the registered lease deed there was an oral lease in respect of 69 cents of property comprised in B schedule property. They were entitled to lease hold rights over two acres 20 cents of property over the scheduled property. 5. 11[th] defendant filed a written statement admitting the claim of the plaintiffs. It was admitted that plaintiffs are entitled to a decree for declaration as prayed for in the plaint. 6. 17[th] defendant also filed a written statement admitting the claim of the plaintiffs. It was contended that at the time of execution of partition deed AS NOS.199 & 449/1999 -: 11 :- No.4027/1098 he was only four years old and his mother Ammukutty was one of the executants. It was also contended that minors did not join the execution of the partition deed but only such minors of the tarawad who formed separate thavazhi without majors alone joined in the execution of the partition deed. It was admitted that long ago tarawad gave A schedule property to a local social organisation of Ezhavas named, Ezhava Samajam the predecessor-in-interest of the first plaintiff Yogam. It was also admitted that the plaint B and C schedule properties are the site and uppertenant lands of the family temple of the Kochiparambil family known by the name 'Puthenkavu Bhagavathi temple'. The entire scheduled properties are honeycombed with various temples and connected structures. The temple and temple properties are to be managed by the eldest male member of the family. Lease deed mentioned in the plaint was bogus and invalid and hence the plaintiffs are entitled to get a decree as prayed for. 7. In view of the contention raised by the defendants 2 to 10 that they are entitled to get fixity of tenure the matter was referred to Land Tribunal. Land Tribunal found that the defendants failed to prove the oral lease pleaded by them in respect of the 69 cents. It further found that there is no demarcating boundary separating the 69 cents and one acre 51 cents of land. It was further held that the applicants who are residing in the disputed land have the right to reside there under Section 2(25) of Kerala Land Reforms Act since they are residing in that property without any obstruction until the appointment of the receiver. It further found that AS NOS.199 & 449/1999 -: 12 :- if any of the residential buildings of the applicants comes within the 69 cents of land those applicants are not liable to be evicted from their residence. Land Tribunal also found that in respect of one acre 51 cents of land covered by lease deed defendants 2 to 10 are cultivating tenants entitled to fixity of tenure and returned the records received from the civil court with those findings. The learned Subordinate Judge found that with effect from 1.12.1976 a notional partition took place in Kochiparambil family in view of the commencement of Joint Hindu Family System (Abolition) Act and all members of the family become co-owners in respect of the suit properties. Court below rejected the contention of the plaintiffs that it is not necessary that all the members of the family to join in the execution of the gift deed. It also found that B and C schedule are lying as compact area and no relief of recovery in respect of the shares of co-owners who assigned their right can be granted. Trial court found that defendants 2 to 10 are not entitled to get a share in the property of Chennan Panicker. 8. Challenging the dismissal of the suit plaintiffs filed A.S.No.199/1999. Defendants 2 to 10 and 12 to 16 filed A.S.No.449/1999 challenging the finding of the trial court that they failed to establish the oral lease pleaded by them in respect of 69 cents of land comprised in B schedule. Since both the appeals arise from the same judgment and decree they were consolidated, heard and disposed of together. 9. Learned counsel appearing for the plaintiffs has argued that the AS NOS.199 & 449/1999 -: 13 :- finding of the trial court that if any documents are to be executed all members of tarawad should together execute the document is not correct. It is also argued that the finding of the court below that after the commencement of Joint Hindu Family Abolition Act all the members of the Tarawad became co-owners and even if it is found that in view of the clause in the partition deed the executants of the partition deed alone are competent to alienate the suit properties that clause has no validity after 31.12.1975 is also not correct. It is argued that in view of the provisions contained in the partition deed the senior-most male member is entitled to be in possession of the suit properties. It is also argued that the trial court had found that D2 Janaki was a concubine of Chennan Panicker who died in August, 1976 and as such defendants 3to 10 who are their children will not get any right over the suit properties. It is argued that even if the case of Defendants 2 to 10 that second defendant is the widow of Chennan Panicker is accepted as such still they will not members of Kochiparambil Tarawad because the parties are marumakkathayees. It is also argued that the 12[th] defendant filed O.S.No.247/1979 before the Munsiff's Court, Ernakulam and that suit was dismissed. It is argued that the court below, at any rate, ought to have allowed the fourth plaintiff who is the senior-most male member of the family to recover possession of the temple properties from the defendants who are strangers to the Tarawad and claim exclusive title over the suit property in view of the provisions of the partition deed. It is argued that the finding of the Tribunal that defendants are entitled to get fixity AS NOS.199 & 449/1999 -: 14 :- of tenure is perverse and illegal. It is also argued that even assuming that there was a valid lease, the lessees are not entitled to get fixity of tenure as it is an exempted transaction under Section 3 of the Kerala Land Reforms Act. The learned counsel for the plaintiffs has relied on the decisions reported in **Muhammed and Others v. Ramakrishna Iyer and others (1958 KLJ 577)** and **Sankaran Nambiar v. Pilliathiri Amma (1961 KLT 639)** and argued that the lease relied on by the defendants 2 to 10 is an improvident lease. He also referred to the principles laid down in **Kora Nair v. Ramadasa Kammath (1957 KLT 627), Kunhanandan Nambiar v. Kunhappa Nambiar & others (1961 KLJ 1141)** and **Gopalakrishnan v. Cochin Devaswom Board (ILR 2007 (4) Ker. 181)** in support of his argument **.** It is also argued that the lease deed was executed just before the commencement of Ordinance 2 of 1125 so as to misappropriate the temple property. The learned counsel for the plaintiffs also relied on the decisions reported in **Muhammed and Others v. Ramakrishna Iyer and others (1958 KLJ 577)** and **Krishnakumari Thampuran v. Palace Administration Board (2006 (4) KLT 432)** and argued that the plaintiffs are entitled to get a decree for recovery of the properties. 10. Learned counsel appearing for the defendants who have filed A.S.No.449/1999 has argued that the documents relied on by the appellants are void ab initio and defendants 2 to 17 are members of the Tarawad and are in lawful possession of the properties and plaintiffs have no manner of right to seek AS NOS.199 & 449/1999 -: 15 :- recovery of possession of the suit properties from them. It is argued that the court below ought to have found that defendants are entitled to get fixity of tenure in respect of two acres 20 cents of land. It is argued that the finding of the Land Tribunal that the defendants are entitled to get fixity of tenure of one acre 51 cents of land is correct and does not call for any interference. It is also argued that the suit as framed is not maintainable. 11. I shall first consider the finding of the Land Tribunal that the contesting defendants 2 to 10 are tenants entitled to fixity of tenure is correct. There are certain proved or admitted facts. The suit property originally belonged to an Ezhava Marumakkathayam Family by name 'Kochiparambil'. The parties are governed by the provisions of Travancore Ezhava Act. There is no dispute with regard to A schedule property. Dispute was only regarding B and C schedule properties. 12. According to the plaintiffs the extent of B and C schedule properties is lesser than what is stated in the document. The area of B schedule is stated as 97 cents and the area of C schedule is stated as one acre 15 cents **.** According to the plaintiffs the side measurement of B schedule is 260 links in east, 410 links in south, 211 links in west and 430 links in north. Likewise the side measurement of C schedule is that 134 links in east, 518 links in south, 57 links in west and 540 links in north. The further contention of the plaintiffs was that the lease was only in respect of C schedule properties. Even from the one acre 15 cents which was AS NOS.199 & 449/1999 -: 16 :- the subject matter of lease some trees are excluded. The said lease deed was never intended to be acted upon and was never acted upon. It was also specifically contended that there is no boundaries between B and C schedule properties. 13. It was specifically contended that there was no demarcating boundary between B and C schedule properties. It was contended that B and C schedule properties always continued in the possession of the respective eldest male member of Kochiparambil family from time to time and the suit properties are necessary for the proper conduct of the day today affairs and ceremonies of the temple. According to the plaintiffs a building situated at the south-western portion in C schedule property is being used for the residence of the temple priest and such residence was necessary for the proper and efficient services in the temple. Three temples, pattambalam, bhajanapura, office building and a shop building are situated in B schedule property. In the written statement filed by defendants 2 to 10 and 12 to 16 the averment in the plaint that there are three temples in B schedule property, bhajanapura, office building, etc. was admitted. The averment that there was no demarcating boundary between B and C schedule properties was not denied. The averment that B schedule is the area over which the temples, buildings and tank are situated was also not denied by the contesting defendants. A reading of Ext.B1 partition deed produced before the Tribunal shows that I schedule to that document includes B and C schedule properties. The 12[th] executant late Shri Velayudhan was put in possession of I schedule to Ext.B1 AS NOS.199 & 449/1999 -: 17 :- partition deed. He was directed to collect income from the I schedule properties and maintain the common ancestress Cheeruppennuu till her death and do the annual thatching of the common building. It was also provided that the income from the temple in B schedule shall be taken by Kesavan, the first party to the partition deed and Velayudhan. They were directed to conduct festival and other affairs of the temple utilising the offerings and other income received from the temple. After the death of Cheeruppennu the senior-most male member of the Tarawad was directed to be in possession of I schedule property. He was directed to collect the income and spend the same to meet the affairs of the temple. The balance amount shall be separately kept and proper accounts maintained. The accounts so maintained should be inspected by the senior-most male members of the branches and affix their signature. If there is any balance amount it should be utilised for a common purpose. In case any documents are to be executed it should be executed by all members. It is very clear that the person in possession is given no right over the properties. He can only collect the income. In Ext.B1 the name of I schedule property was stated as 'bhagavathi parambu' which means the property in which the deity is situated. This description also shows that the I schedule property in Ext.B1 is premises of a temple even on the date of partition. 14. The specific case put forward by the plaintiffs in the plaint was that B and C schedule properties are appurtenant and land owned by temple. In view AS NOS.199 & 449/1999 -: 18 :- of the dispute the civil court appointed an advocate commissioner to inspect the suit properties and file a report. He did not file the report but surrendered the warrant. Thereafter the warrant was not issued to any other lawyer. Before the Tribunal defendants filed a petition to appoint a commissioner. A commissioner was deputed and he filed a report and sketch. The sketch of the property shows that A, B and C schedule properties are lying as contiguous plots. Commissioner reported that there was no boundary to separate B and C schedule properties. According to the Commissioner there are a number of temples in B schedule properties. It also shows that on the south-western corner of C schedule property there is a building in which the second defendant is residing. It also shows that B and C schedule properties are lying as compact plot. Though the defendants filed objection stating that there was clear cut boundaries to separate B and C schedule properties they failed to produce any evidence to prove the same. 15. Section 3 in Chapter II of the Kerala Land Reforms Act deals with provisions regarding tenancies - exemptions. The relevant provision reads as follows: “3(1)(x) tenancies in respect of sites, tanks and premises of any temple, mosque or church [including sites belonging to a temple, mosque or church on which religious ceremonies are conducted] and sites of office buildings and other buildings attached to such temple, mosque or church, created by the owner, trustee or manager of such temple, mosque or church: Provided that nothing in this clause shall affect AS NOS.199 & 449/1999 -: 19 :- the rights to which a tenant was entitled immediately before the commencement of this Act under the contract of tenancy or under any law then in force; or ” Since the materials on record show that B and C schedule properties are premises of a temple and a number of structures and building appurtenant to the temple are situated in B and C schedule properties the same is exempted under Section 3(1) of the Kerala Land Reforms Act. The persons who executed the lease had no right or interest over the property except to collect the income from the property and temple. There is absolutely no evidence to show that the alleged lessee paid rent at any point of time. Further other members of Tarawad did not join to execute the lease. The Land Tribunal did not consider any of these aspects while considering the question of fixity of tenure claimed by defendants 2 to 10. Considering all aspects of the matter I am of the considered view that the finding of the Tribunal that the defendants are entitled to get fixity of tenure in respect of one acre 51 cents of land is unsustainable and liable to be set aside. I do so. 16. Defendants 2 to 10 contended that they are entitled to get fixity of tenure in respect of 69 cents of land which forms part of B schedule also in addition to the properties covered by the lease deed. In the original written statement there was no claim of any oral lease. Such a claim was introduced by way of amendment to the written statement. There is no document to show that lessee ever paid any rent. If as a matter of fact the lessor who executed Ext.A1 marked before the Land Tribunal wanted to give a lease in respect of the 69 cents AS NOS.199 & 449/1999 -: 20 :- also he could have very executed another document. There is absolutely no legal evidence to hold that there was an oral lease in respect of 69 cents of land which forms part of B schedule in favour of the Chennan Panicker. 17. Even assuming that there was an oral lease the same is also an exempted transaction under Section 3 of the Kerala Land Reforms Act. So the finding of the Land Tribunal that defendants 2 to 10 are not entitled to get any fixity of tenure in respect of 69 cents is perfectly correct and only to be confirmed. I do so. 18. For the facts and circumstances stated above, I hold that the defendants 2 to 10 are not cultivating tenants entitled to get fixity of tenure over B or C schedule properties or any portion of those items. 19. Land Tribunal found that such of those defendants who are residing in B and C schedule properties are not liable to be evicted as they are kudikidappukars. There is absolutely no pleadings or proof to support that finding. So that finding is also liable to be set aside. I do so. 20. Now I shall consider the question whether the plaintiffs are entitled to get a decree for recovery of the suit properties. Learned counsel for the plaintiffs has argued that in view of the provisions contained in the partition deed the plaintiffs are entitled to get possession. Learned counsel for the defendants has argued that the admission made by the plaintiffs itself would show that the suit property is a trust property and hence the first plaintiff will not get any title over AS NOS.199 & 449/1999 -: 21 :- it. It is argued that the documents of title relied on by the first plaintiff are void ab initio. Hence it is not necessary to consider any other aspect. 21. The court below had raised a number of issues, but it had not considered those issues separately. The procedure followed by the Land Tribunal and court below was not legal or proper. Initially the matter was referred to Land Tribunal for considering the plea of fixity of tenure raised by the defendants. For a decade the matter was pending before the Tribunal. The procedure followed by the Land Tribunal was very strange. It is seen that witnesses were examined in piecemeal. On 14.3.1985 PW3 was examined and the case was adjourned to 25.3.1985. Cross-examination of PW3 was conducted on 13.5.1985. Before completing the entire evidence of PW3 other witnesses were examined in chief. On 30.11.1985 the Land Tribunal passed an order to the effect that if PWs 4 and 5 fail to appear on the next posting date those witnesses would be declared as hostile and removed from the witness list and the depositions already recorded would be declared as cancelled. The case was posted to 10.12.1985. On 10.12.1985 case was adjourned to 13.12.1985 and on that day PW4 did not appear. On that day the Land Tribunal passed an order deleting names of PWs 4 and 5 from the witness list. The chief examination was cancelled. Subsequently counsel for the plaintiffs filed a petition to review that order. Though the Land Tribunal has no power to review, that petition was allowed and the order dated 13.12.1985 declaring PWs 4 and 5 hostile and cancelling the examination-in-chief of those witnesses was AS NOS.199 & 449/1999 -: 22 :- reviewed and cancelled. The Land Tribunal directed them to appear for evidence on 18.4.1988. PW4 never appeared. PW5 appeared and cross-examined. PW6 was also examined. 22. After trial the Tribunal returned the the records to the Civil Court along with its finding. Before the civil court both sides agreed that the evidence recorded by the Tribunal may be treated as evidence in the suit. That procedure is also illegal. Section 125(1) of the Kerala Land Reforms Act provides that no civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under the Kerala Land Reforms Act required to be settled or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government. Section 125(3) provides that if in any suit or other proceedings such a question arises the matter is to be referred. So there is a total ouster of jurisdiction of civil court to decide the question of tenancy in view of the provisions contained in Section 125 of the Kerala Land Reforms Act. The Land Tribunal, constituted under the provisions of the Kerala Land Reforms Act, is an independent Tribunal. So the documents produced and evidence recorded by the Land Tribunal are not records of the court in which the suit was filed but records of another forum. Such a document can be used by the civil court after passing order under Order XIII Rule 10. The court needs only to send for such papers as may be specifically mentioned in the application filed for that purpose. AS NOS.199 & 449/1999 -: 23 :- But the evidence recorded by a court or Tribunal cannot be treated as evidence of another court or Tribunal. ## 23. In **Maya Dhari v. Chuni Lal-Panna Lal (AIR 1931 Lahore 119)** it was held as follows: “The mere summoning by the Court of a record containing a document relied on by a party will not absolve that party from the duty of placing that document by formal admission or proof upon the record of the trial for which it is required as evidence. The correct procedure for the party relying on a document not in his possession but of which a copy can be got by him is to produce the copy. If the copy is admitted by the opposite party the original need not be produced. If it is not admitted or if it is still necessary to produce the original for technical proof then the party must make an application in strict accordance with R.10, O.13, specifying the documents required. Application for summoning records of a case or the file of a suit should be rejected unless the affidavit satisfies the Court that copies of the specified documents cannot be produced without unreasonable delay or expense or that the production of the originals is necessary.” ## In **Gokul Prasad v. Mahadei Kuar (AIR 1941 Oudh 341)** it was held as follows: “The power to send for the record of another case and to inspect the same does not carry with it the power to treat the whole of the record or a part thereof as evidence in the case. If upon inspection of the record the Court comes across an important document which in its opinion either throws important light on the question at issue or is of material assistance in ascertaining the truth, it is open to the Court to adopt proper proceedings to have the document brought on the record and proved according to law before such document could be used as evidence in the case. Mere AS NOS.199 & 449/1999 -: 24 :- summoning of the record does not render the entire record ipso facto evidence in the case.” 24. In this case no petition under Order XIII Rule 10 was filed. Both sides agreed that the records produced before the Land Tribunal and evidence recorded by it may be treated as evidence in the suit. There is no provision in the Civil Procedure Code or Civil Rules of Practice which confers such a power to a civil court. It is true that some of the records were produced before the court below and those records were forwarded to the Land Tribunal. A large number of documents were proved and admitted in evidence. So it may not be necessary to prove those documents again in the suit between the same parties. But that alone is not sufficient. The trial court will have to admit those documents and make necessary endorsements as provided under Order XIII Rule 4. Then only those documents became evidence in the suit. But so far as the deposition recorded by the Land Tribunal the same cannot be used as evidence recorded by the civil court. It can be used as an admission and may be used in accordance with the provisions of the Evidence Act. The court below committed a very serious illegality in deciding the suit based on the evidence recorded by the Land Tribunal and all findings recorded by the court below are liable to be set aside. I do so. 25. Learned counsel for the defendants has argued that the disputed properties are trust properties and such properties are not partiable. He relied on the decisions reported in **Narayana Pillai & another v. Kesava Pillai (1962 KLJ** AS NOS.199 & 449/1999 -: 25 :- **389)** and **Rajasekharan Naicker v. Govindankutty (1983 KLJ 506)** . First of all no such contention was raised before the trial court. I schedule properties in the partition deed were initially set apart for the maintenance of Cheeruppennu and for annual thatching of the house. Initially 12[th] executent was put in possession of the property. After the life time of Cheeruppennu two persons were allowed to collect the income from the temple and utilise the same for the affairs of the temple. Learned counsel for the plaintiffs has argued that no trust was created. Whether there was an intention to create private or public trust was not considered by the trial court. Even if the property is a trust property which is impartiable whether defendants 2 to 10 who claim exclusive right over the same can be allowed to continue in possession was also not considered by the court below. As per the terms of the partition deed the senior-most male member of the tarawad alone is entitled to be in possession of the properties. According to the plaintiffs at present fourth plaintiff is the senior-most male member of the family. Plaintiffs have also got a case that second defendant was not the wife of Chennan Panicker. Learned Sub Judge relying on the oral evidence adduced before the Tribunal found that defendants 1 to 10 are not the heirs of Chennan Panicker and as such they are not entitled to get a share in the property of Chennan Panicker. Learned counsel for the plaintiffs has pointed out that Ext.B5 document produced and proved before the Tribunal which was a petition submitted by the children of Chennan Panicker shows that Chennan Panicker died in the year 1976. If the properties AS NOS.199 & 449/1999 -: 26 :- are trust properties a further question may arise whether a scheme is to be framed because of the disputes. The court below found that plaintiffs have become coowners with the defendants. The court below did not consider whether an opportunity can be afforded to the plaintiffs to amend the plaint so as to incorporate a prayer for partition in view of its finding that a notional partition took place in the family. 26. The learned counsel for the defendants argued that the second defendant is the widow of Chennan Panicker and defendants 3 to 10 are the children born to them in the wedlock. It is argued that Chennan Panicker and defendants 2 to 10 were residing together and that alone is sufficient to hold that there was valid marriage between Chennan Panicker and second defendant. He relied on the following decisions: **Badri Prasad v. Dy.Director, Consolidation (AIR 1978 SC 1557), S.P.S.Balasubramanyam v. Suruttayan (AIR 1992 SC 756), Ranganath Parmeshwar P.Mali v. E.G.Kulkarni (AIR 1996 SC 1290)** and **Ningu v. Sadashiv (AIR 1987 Bomb.27)** in support of that argument. The learned counsel also relied on Gopalakrishnan's case (supra). The counsel for defendants relied on the decisions reported in **Kalyani Amma v. Sankaran Raman (1987 (2) KLT 297), M.Dasaratharami Reddi v. D.Subba Rao (AIR 1957 SC 797)** and **Thomas v. Radhakumari Devi (1975 KLT 475)** and argued that suit is liable to be dismissed. The counsel for the plaintiffs submitted that in this case validity of marriage is attacked on the ground that Chennan Panicker was AS NOS.199 & 449/1999 -: 27 :- having wife when he started living with second defendant. It is argued that second defendant was also married to another person and he was also alive. It is argued that both those marriages were subsisting and even if Chennan Panicker married second defendant such a marriage was void under the provisions of Travancore Ezhava Act. I do not propose to consider the rival contentions on its merits since I have found that the procedure adopted by the court below is illegal and the case is to be remanded for fresh disposal. It is open to both sides to raise all these arguments before the trial court. 27. The court below had acted without jurisdiction. So all findings recorded by the trial court and also the finding of the Land Tribunal which is appended to the judgment of the trial court are to be set aside. I set aside all those findings. I am of the considered view that all issues except the issue regarding fixity of tenure claimed by the defendants require reconsideration. For that purpose the suit is to be remanded. In the result, A.S.No.199/1999 is allowed. The decree and the judgment passed by the court below by which it dismissed O.S.No.69/1980 are hereby set aside. The finding of the court below that the defendants 2 to 10 are tenants entitled to fixity of tenure is also set aside. They are not entitled to fixity of tenure. The suit is remanded to trial court for fresh disposal on other issues. The trial court is directed to dispose of O.S.No.69/1980 in accordance with law after AS NOS.199 & 449/1999 -: 28 :- affording an opportunity to both sides to amend the pleadings and adduce further evidence, if so advised. A.S.No.449/1999 filed by the defendants 2 to 10 and 12 to 16 is dismissed. Parties shall appear before the court below on 15.2.2008. **K. PADMANABHAN NAIR, JUDGE.** cks AS NOS.199 & 449/1999 -: 29 :- ## K.PADMANABHAN NAIR, J. A.S.Nos.199 of 1999 & 449 of 1999 JUDGMENT 30[th] January, 2008