Sundaran and Others v. Cochin Devaswom Board

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 1[ST] DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943 RSA NO. 434 OF 2005 ``` ``` AGAINST THE JUDGMENT AND DECREE IN AS 194/2003 OF V ADDITIONAL DISTRICT COURT, ERNAKULAM ``` ``` AGAINST THE JUDGMENT AND DECREE IN OS 630/2000 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM ``` ## **`SECOND APPELLANT/APPELLANTS/PLAINTIIFS:`** - `1 SUNDARAN, AGED 71 YEARS, (DIED) LHS IMPLEADED S/O.LATE KANDUNNI, KALLUMADATHIL HOUSE,, RESIDING AT MARIYATHU HOUSE, THRIKKANARVATTOM DESOM, KANAYANNUR TALUK, PACHALAM, PIN-682 012.` - `2 RATHNAMMA, AGED 61 YEARS,(DIED)LHS IMPLEADED D/O.LATE KANDUNNI, KALLUMADATHIL HOUSE, RESIDING AT MARIYATHU HOUSE, THRIKKANARVATTOM DESOM, KANAYANNUR TALUK, PACHALAM PIN-682 012.` - `3 SEKHARAN, AGED 59 YEARS,(DIED)LHS IMPLEADED S/O.LATE KANDUNNI, KALLUMADATHIL HOUSE, RESIDING, AT MARIYATHU HOUSE, THRIKKANARVATTOM DESOM, KANAYANUR TALUK, PACHALAM, PIN-682 012.` - `4 SUSHAMA, AGED 49 YEARS W/O.LATE CHANDRA BOSE, KALLUMADATHIL HOUSE, RESIDING AT MARIYATHU HOUSE, THRIKKANARVATTOM DESOM, KANAYANNUR TALUK, PACHALAM, PIN 682 012.` - `5 DANISH, AGED 26 YEARS S/O.LATE CHANDRA BOSE, KALLUMADATHIL HOUSE, RESIDING AT MARIYATHU HOUSE, THRIKKANARVATTOM DESOM, KANAYANNUR TALUK, PACHALAM, PIN 682 012.` - `6 ASHA BOSE, AGED 23 YEARS, D/O.LATE CHANDRA BOSE, KALLUMADATHIL HOUSE,, RESIDING AT MARIYATHU HOUSE,, THRIKKANARVATTOM DESOM, KANAYANUR TALUK, PACHALAM, PIN-682 012.` - `7 M.V.JAYESAN, AGED 44 YEARS, S/O.LATE M.K.VELAYUDHAN, MUTHIRAPARAMBIL, KANAYANNUR TALUK, CHOTTANIKKARA P.O.` - `8 (ADDL.A8) M.S.SUNIL,` RSA No.434 of 2005 ..2.. , ||`AGED 59 YEARS, S/O.LATE M.K.SUNDARAM,`| |---|---| ||`KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD,`| ||`PACHALAM.`| |`9`|`(ADDL.A9) M.S.SANTHOSH LAL,`| ||`AGED 57 YEARS, S/O.LATE M.K.SUNDARAM,`| ||`KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD,`| ||`PACHALAM.`| |`10`|`(ADDL.A10) M.S.HARISH LAL,`| ||`AGED 53 YEARS, S/O.LATE M.K.SUNDARAM,`| ||`KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD,`| ||`PACHALAM.`| |`11`|`(ADDL.A11) M.S.RAJESH,`| ||`AGED 51 YEARS, S/O.LATE M.K.SUNDARAM,`| ||`KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD,`| ||`PACHALAM.`| |`12`|`(ADDL.A12) M.S.JEEVA,`| ||`AGED 50 YEARS, D/O.LATE M.K.SUNDARAM,`| ||`KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD,`| ||`PACHALAM.`| |`13`|`(ADDL.A13) M.S.SURESH,`| ||`AGED 46 YEARS, S/O.LATE M.K.SUNDARAM,`| ||`KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD,`| ||`PACHALAM.`| |`14`|`(ADDL.A14) M.S.GANESH`| ||`AGED 59 YEARS, S/O.LATE M.K.SUNDARAM,`| ||`KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD,`| ||`PACHALAM.`| |`15`|`(ADDL.A15) GIRIJA ROSHAN LAL,`| ||`AGED 56 YEARS, W/O.LATE ROSHAN LAL,`| ||`KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD,`| ||`PACHALAM.`| |`16`|`(ADDL.A16) KRISHNA LAL M.R.,`| ||`AGED 32 YEARS, S/O.LATE ROSHAN LAL,`| ||`KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD,`| ||`PACHALAM.`| |`17`|`(ADDL.A17) KRISHNENDHU,`| ||`AGED 28 YEARS, D/O.LATE ROSHAN LAL,`| ||`KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD,`| ||`PACHALAM`| ||`(THE LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE`| ||`IMPLEADED AS ADDITIONAL A8 TO 17 AS PER ORDER`| ||`DATED 28.09.2021 IN IA.1/2018.)`| RSA No.434 of 2005 ..3.. , - `18 (ADDL.A18) K.A.DIVAKARAN, AGED 83 YEARS, S/O.AYYAPPAN, MARIATH HOUSE, M.M.ROAD, PACHALAM.` - `19 (ADDL.A19) MINI DIVAKARAN, AGED 50 YEARS, D/O.K.A.DIVAKARAN, MARIATH HOUSE, M.M.ROAD, PACHALAM.` - `20 (ADDL.A20) BYJU DIVAKARAN, AGED 49 YEARS, S/O.K.A.DIVAKARAN, MARIATH HOUSE, M.M.ROAD, PACHALAM.` - `21 (ADDL.A21) MANJUNATH DIVAKARAN, AGED 46 YEARS, S/O.K.A.DIVAKARAN, MARIATH HOUSE, M.M.ROAD, PACHALAM.(THE LEGAL HEIRS OF DECEASED 2ND APPELLANT ARE IMPLEADED AS ADDITIONAL A18 TO 21 AS PER ORDER DATED 28.09.2021 IN IA.4/2018.)` - `22 (ADDL.A22) M.S.SAJEEV, AGED 46 YEARS, S/O.K.K.SEKHARAN, KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD, PACHALAM (THE LEGAL HEIR OF DECEASED 3RD APPELLANT IS IMPLEADED AS ADDITIONAL APPELLANT NO.22 AS PER ORDER DATED 28.09.2021 IN IA.7/2018.) BY ADVS. S.SREEKUMAR (SR.) P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS & 9TH PLAINTIFF:`** - `1 kOCHI DEVASWOM BOARD (THRIPUNITHURA GROUP) NEAR POORNATHREYASAN TEMPLE, THRIPUNITHURA, REPRESENTED BY THE ASSISTANT COMMISSIONER, (TRIPUNITHURA GROUP) TRIPUNITHURA, KANAYANNUR TALUK.` - `2 COCHIN DEVASOM BOARD REP. BY ITS SECRETARY.` - `**3 M.V.SATHEESAN SO.LATE M.K.VELAYUDHAN MUTHIRAPARAMBIL HOUSE, KANAYANNUR TALUK, CHOTTANIKKARA P.O. (DIED. LEGAL HEIRS IMPLEADED)` - `4 LIGY W/O.AJAYADAS AGED ABOUT 32, RESIDING AT MANIBEN, CHERTHALA.` - `5 (ADDL. R5) SATHYABHAMA.C, AGED 55 YEARS,` RSA No.434 of 2005 ..4.. , ``` W/O LATE MV SATHEESAN RESIDING AT LAKSHMI, MUTHIRAPARAMBIL (H), VATTUKUNNU, CHOTTANIKKARA P.O., ERNAKULAM ``` ``` 6(ADDL.R6) SANJANA M.S, AGED 25 YEARS, D/O LATE M.V. SATHEESAN, RESIDING AT LAKSHMI, MUTHIRAPARAMBIL(H) VATTUKUNNU, CHOTTANIKKARA P.O., ERNAKULAM ``` ``` 7(ADDL.R7) SANJIN M.S. AGED 22 YEARS S/O LATE M.V.SATHEESAN RESIDING AT LAKSHMI MUTHIRAPARAMBIL(H), VATTUKUNNU, CHOTTANIKKARA P.O., ERNAKULAM (THE LEGAL HEIRS OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDITIONAL R5 TO R7 AS PER ORDER DATED 28.09.2021 IN IA NO.1/19) ``` ``` BY ADVS. SRI.KRISHNA MENON, SC, COCHIN DEVASWOM BOARD K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD N.RAGHURAJ, SC, COCHIN DEVASWOM BOARD M.RAMESH CHANDER (SR.) SACHIN JACON AMBAT – R5 TO R7 K.GOPALAKRISHNA KURUP, SC, COCHIN DEVASWOM BOARD ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RSA No.434 of 2005 ..5.. , ## **JUDGMENT** Plaintiffs 1 and 3 to 8 in O.S.No.630/2000 on the file of the II-Additional Munsiff’s Court, Ernakulam are the appellants. Defendants 1 and 2, the Cochin Devaswom Board (‘the CDB’ for short), plaintiff No.9, and the legal representatives of plaintiff No.2 are the respondents . 2. During the course of proceedings appellant Nos. 1 to 3 and respondent No.3 died. Their legal representatives were impleaded as additional appellants 8 to 22 and additional respondents 5 to 7respectively. 3. The plaintiffs instituted a suit for permanent prohibitory injunction against the CDB to restrain it and its officials from trespassing into the plaint schedule property. The plaintiffs described the plaint schedule property as 7 cents of land comprised in Sy.No.1250/7 of Nadama Village. According to the plaintiffs, they acquired title and possession over the plaint schedule **==> picture [218 x 33] intentionally omitted <==** property on the strength of Ext.A1 partition deed No.2653/96 of the Sub Registrar Office, Tripunithura, wherein the property was described as F Schedule. 4. The defendants resisted the suit contending that description of the plaint schedule property is incorrect and the allegations of trespass and encroachment are false. The defendant CDB further contended that the plaintiffs are attempting to trespass upon the property in the possession of the CDB. It is also contended that the suit was barred under Section 124 of the Travancore Cochin Hindu Religious Institutions Act (for short ‘ TCHRI Act’). 5. The parties went to trial. PWs 1 and 2 were examined and Exts.A1 and A2 were marked on the side of the plaintiffs. Ext.C1 was marked as court exhibit. 6. The Trial Court dismissed the suit holding that the plaintiffs failed to establish the identity of the plaint schedule property and that the suit is not maintainable in view of non-compliance of Section 124 of the TCHRI Act. RSA No.434 of 2005 **==> picture [20 x 21] intentionally omitted <==** 7. The plaintiffs challenged the judgment and decree of the Trial Court before the District Court, Ernakulam in A.S.No.194/2003. The First Appellate Court confirmed the judgment and decree passed by the Trial Court. 8. The plaintiffs are in appeal before this Court invoking Section 100 of the Code of Civil Procedure. 9. After hearing both sides, this Court reformulated the substantial questions of law as follows: 1. Whether the Courts below were justified in holding that the plaint schedule property is not identifiable ignoring the fact that plaint schedule property has clear and distinct boundaries as reported by the Commissioner and as per the title deed. 2. Have the courts below drawn the necessary inferences and presumptions that would apply on the facts and circumstances of the case? 3. Whether the Lower Appellate Court is justified RSA No.434 of 2005 ..8.. , in not exercising the jurisdiction under Order 41 Rule 27 CPC especially when ends of justice could be met by allowing commission application. - 4.Whether the courts below were justified in holding that the suit is bad for want of notice under Section 124 of the Travancore-Cochin Hindu Religious Institutions Act. 10. Heard Shri. Prajith P., the learned counsel appearing for the appellants/plaintiffs and Shri. K.P. Sudheer, the learned Standing Counsel for the CDB. 11. The case of the plaintiffs is that they are the titleholders in possession of the plaint schedule property, which they acquired by way of Ext.A1 partition deed dated 16.08.1996. The plaint schedule property is the F schedule in the partition deed. The boundaries of the plaint schedule property are described in the plaint as follows:- “East: Property of Mundoorkottu family RSA No.434 of 2005 ..9.. , South: Thodu West: Public Road North: Public Road” According to the plaintiffs, the defendant and its officials are attempting to trespass upon the plaint schedule property. 12. The challenge of the defendant CDB is that the description of the plaint schedule property is incorrect and the plaintiffs are not the owners in possession of the plaint schedule property as described in the plaint. And the property is not identifiable. The defendants specifically contended that the four boundaries stated in the plaint are not correct. The Board further pleaded that survey of the property with reference to the village records and title deeds is highly required to identify it. The defendants further pleaded that the Board owns extensive items of land in Sy.No.1250 of Nadama Village and the attempt of the plaintiffs was to trespass upon the temple owned by the CDB. 13. The dispute centres around a strip of land lying RSA No.434 of 2005 **==> picture [26 x 21] intentionally omitted <==** on the northern side of the plaint schedule property. The northern boundary of the plaint schedule property is described as public road. According to the defendants, there is a strip of land lying in between the tarred road on the north and the northern boundary of the plaint schedule property. The plaintiffs claim title to the plaint schedule property based on Ext.A1 partition deed. The F schedule in the partition deed is stated to be the plaint schedule property. Ext. A1 shows that the southern boundary is the property of one Malathiamma, whereas in the plaint, the southern boundary of the property is shown as Thodu. The eastern boundary of the property as per Ext.A1 and the plaint is the property of Mundoorkonam family, In Ext.A1, the northern and western boundaries are shown as public way. In the plaint also those boundaries are shown as public road. Admittedly there is a road on the northern side of the plaint schedule property. 14. A commissioner was appointed by the Trial RSA No.434 of 2005 **==> picture [26 x 21] intentionally omitted <==** Court for conducting local inspection in the plaint schedule property. The Commissioner gave evidence as PW2. Ext.C1 report was marked through PW2. The Commissioner has given evidence that he did not measure the property and that he did not go through the F schedule in the partition deed. PW2 has given categoric evidence that as no request was made by the plaintiffs, he could not ascertain as to the exact lie of the plaint schedule property. On the distance of the plaint schedule property from the compound wall of the temple, the Commissioner stated that he could not measure the exact distance from the compound wall to the plaint schedule property as the northern side of the plaint schedule property was not clearly demarcated. The plaintiffs failed to make application for surveying and identifying the property. 15. The defendants had raised a specifically contention in the written statement that the plaint schedule property, going by the descriptions in the plaint, RSA No.434 of 2005 **==> picture [26 x 21] intentionally omitted <==** is not identifiable and the same is to be identified with reference to the title deed and Revenue Records. Even after such a contention was raised, the plaintiffs have taken no steps to get the plaint schedule property identified. 16. Both the Trial Court and the First Appellate Court, relying on the pleadings of the parties and the evidence adduced on rival sides, held that the plaint schedule property could not be identified. Therefore, the Courts below were justified in refusing to grant the relief of prohibitory injunction in favour of the plaintiffs. On a careful analysis of the pleadings, evidence and other materials placed before the Court, this Court finds it difficult to interfere with the findings of the Courts below that the plaintiffs failed to establish the identity of the plaint schedule property. 17. The learned counsel for the appellants/plaintiffs strenuously contended that the First Appellate Court ought to have allowed the application filed on behalf of RSA No.434 of 2005 **==> picture [26 x 21] intentionally omitted <==** the plaintiffs under Order 41 Rule 27 of the Code of Civil Procedure to issue a commission at the appellate stage for the purpose of identifying the plaint schedule property. 18. In the First Appellate Court, the plaintiffs had filed I.A.No.1778/2004. There is vehement challenge to the order of the First Appellate Court dismissing the application to issue Commission at the appellate stage. The First Appellate Court in paragraphs 19 and 20 of the impugned judgment has discussed the reasoning applied for dismissing the said application. The First Appellate Court has noted that, in the written statement, the defendants had taken a specific stand that a Commission to identify and measure the property based on the title deed relied on the by plaintiffs and the Revenue record was highly requried **.** The First Appellate Court further noted that the plaintiffs had described the boundaries of the plaint schedule property, in the plaint, in an erroneous manner excluding a thodu having a width of 1 RSA No.434 of 2005 **==> picture [26 x 21] intentionally omitted <==** metre from the plaint schedule property, whereas the title deed (Ext.A1) relied on takes in the thodu also. The First Appellate Court has also considered that no acceptable reasons have been brought forward in the application seeking issuance of Commission, which would amount to reception of additional evidence as contained in Order 41 Rule 27 of the CPC. 19. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in addition. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. Order 41 Rule 27 reads thus:- “ **27. Production of additional evidence in Appellate Court.-** (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at RSA No.434 of 2005 ..15.. , the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” An appellate court may permit additional evidence only if the conditions laid down in the above extracted rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. The matter is entirely within the discretion of the Court and it is used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitations prescribed by the rule itself. 20. In **Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co.** [(1978) 2 SCC 493] the Apex Court held that the appellate Court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. The Apex Court further held RSA No.434 of 2005 ..16.. , that where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce the judgment. 21. In **Union of India** v. **Ibrahim Uddin** [(2012) 8 SCC 148] considering the provisions of Order 41 Rule 27 CPC, the Apex Court in paragraph 48 held thus:- **“48.** To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, RSA No.434 of 2005 **==> picture [26 x 21] intentionally omitted <==** the application should not be moved at a belated stage.” 22. The learned counsel for the appellants relied on **Jose v. Johnsosn** [2020(2) KHC 367], **Babu v. Power Grid Corporation of India** [2016 KHC 1071] and **M/s Ramapriya Hotel (P) Ltd and another v. Trivandrum Specialists Hospitals** [2012(2) KHC 363] in support of his contention that the First Appellate Court ought to have allowed I.A.No.1778/2004. The facts considered in the precedents relied on by the learned counsel for the appellants are different from the facts under consideration in this case. This is a case in which the plaintiffs had enough opportunity, especially after the filing of written statement in which a specific contention was raised by the defendants projecting the requirement of survey and measurement of the property based on the title deeds and Revenue Records, to discharge their onus of establishing the identity of the property, which they failed. Therefore this Court is of the view that the First RSA No.434 of 2005 ..18.. , Appellate Court is justified in dismissing I.A.No.1778/2004. 23. Another ground on which the Trial Court and the First Appellate Court non-suited the plaintiffs was the non-compliance of Section 124 of the TCHRI Act. As per Section 124 of the TCHRI Act, no suit shall be instituted against the Board until expiration of two months after a notice in writing was delivered or left at the office of the Board stating the cause of action, the relief sought, and the name and place of the abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left. 24. The learned counsel for the appellants contended that the mandate of Section 124 of the TCHRI Act is only applicable to the administration, supervision and control of incorporated and unincorporated Devaswams and other Hindu Religious endowments and funds managed by the Board. Going by the provisions of the Statute, this Court is of the view that there is a total RSA No.434 of 2005 **==> picture [26 x 21] intentionally omitted <==** bar for instituting a suit against the Board, until the expiry of the period prescribed therein after a notice as required is served on the defendants. 25. The resultant conclusion is that the finding of the courts below that the suit is barred by Section 124 of the TCHRI Act also requires no interference. The Courts below have drawn the necessary inferences and presumptions that would apply on the facts and circumstances of this case. 26. The substantial questions of law are answered against the appellants. The Regular Second Appeal stands dismissed. The parties are directed to bear their respective costs. 27. The learned counsel for the appellants submitted that the plaintiffs may be given the liberty to institute a proper suit against the defendants in respect of the plaint schedule property. Needless to say, the plaintiffs are at liberty to institute a suit in respect of the plaint schedule property, if a cause of action arises. RSA No.434 of 2005 **==> picture [26 x 9] intentionally omitted <==** , Pending interlocutory applications, if any, stand closed. **Sd/K. BABU, JUDGE** kkj