Sundaranganesan v. Ramesa Menon and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **RSA.No.397 OF 2020** **AS 62/2016 OF III ADDITIONAL DISTRICT COURT, PALAKKAD DTD.25.2.2020** **OS 306/2013 OF MUNSIFF COURT, CHITTUR DTD.29.1.2016** ## **APPELLANT/APPELLANT/1ST DEFENDANT:** **SUNDARAGANESAN, AGED 49 YEARS, S/O.LATE NATARAJA PANDARAM, AYYAMPATHY, THATHAMANGALAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.T.RAMPRASAD UNNI SHRI.G.RENJITH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS & 2ND DEFENDANT:** **1 RAMESA MENON, AGED 84 YEARS, S/O.SAVITHRI AMMA, PALAT HOUSE, AYYAMPATHY KALAM, THATTAMANGALAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN678 102. 2 RAJAN @ VIJAYAMOHAN, AGED 79 YEARS, S/O.SAVITHRI AMMA, PALAT HOUSE, AYYAMPATHY KALAM, THATTAMANGALAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN- 678 102.** **3 NALINI SUBRAMANIAN, AGED 77 YEARS, D/O.SAVITHRI AMMA 110, CAMERON DRIVE, CAMERON HILLS, HOCKESSIN DELAWARE-19707, USA. 4 DR.GOVINDANKUTTY, AGED 75 YEARS, S/O.SAVITHRI AMMA, PALAT HOUSE, AYYAMPATHY KALAM, THATTAMANGALAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN- 678 102.** R.S.A.No.397 of 2020 ..2.. - **5 KESAVANKUTTY, AGED 73 YEARS, S/O.SAVITHRI AMMA, PALAT HOUSE, AYYAMPATHY KALAM, THATTAMANGALAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT PIN- 678 102.** - **6 ANURADHA BALRAM, AGED 59 YEARS, D/O.LATE SREEKUMAR, C/O.BALARAM, 4A, FSFS, KINGS WOOD, KOWDIAR, THIRUVANANTHAPURAM-3, PIN- 695 003.** - **7 VRINDA BALAGOPAL, AGED 56 YEARS, D/O.LATE SREEKUMAR, NO.24, STREET NO.92, 18TH AVENUE, ASOK NAGAR, CHENNAI-83, PIN- 600 083.** - **8 NIRMALA DEVI, AGED 81 YEARS, W/O.V.K.SUDHAKARANUNNI, 22, LAKSHMI, SOORYA NAGAR, CHANDRANAGAR P.O., PALAKKAD PIN- 678 007.** - **9 E.K.PADMINI, AGED 78 YEARS, W/O.MADHAVANKUTY MENON, PALAT HOUSE, AYYAMPATHY KALAM, TATTAMANGALAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN- 678 102.** - **10 E.K.JAYASREE, AGED 54 YEARS, W/O.RAJESH AND D/O.MADHAVANKUTTY MENON, PALAT HOUSE, AYYAMPATHY KALAM, TATTAMANGALAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN- 678 102.** - **11 E.K.SETHUMADHAVAN, AGED 52 YEARS, S/O.MADHAVANKUTY MENON, PALAT HOUSE, AYYAMPATHY KALAM, TATTAMANGALAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN- 678 102** **R1, R3-7, R9 BY ADV. SRI.SABU GEORGE R1, R3-7, R9 BY ADV. SRI.MANU VYASAN PETER R2-10 BY ADV. SRI.P.B.SUBRAMANYAN R2-7, R9 & R11 BY ADV. SRI.P.B.KRISHNAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24-02-2021, THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING:** R.S.A.No.397 of 2020 ..3.. ## **[CR]** ## **JUDGMENT** The appellant is the appellant in A.S.No.62/2016 on the file of the third Additional District Court, Palakkad (hereinafter referred to as 'the first appellate court') and the 1[st] defendant in O.S.No.306/2013 on the file of the Munsiff's Court, Chittur (hereinafter referred to as 'the trial court'). The parties are hereinafter referred to as 'the plaintiffs' and 'the defendants' according to their status in the trial court unless otherwise stated. 2. The Kittummaman Kovil in Thattamangalam in the present Palakkad District belonged originally to the Ayyampathy Palat family. The plaintiffs as well as the 2[nd] defendant are members of the aforesaid family. Since the 2[nd] defendant did not join in the suit as plaintiff, she is arrayed as the 2[nd] defendant. In the suit, no relief is claimed against the 2[nd] defendant. She has agreed and consented to file the above suit as against the 1[st] R.S.A.No.397 of 2020 **==> picture [22 x 9] intentionally omitted <==** defendant. In a suit for partition of the Palat family as O.S.No.15/1118 ME of the District Court, Thrissur, the plaint schedule property is included as one of the items available for partition among the members of the family. In the above suit, the plaint schedule property was kept in common, but, its custody and management was given to the 'G-Group' mentioned in the final decree. The G-Group consists of defendants 8, 14 to 18 and 63 of the said suit. The 8[th] defendant in the said suit is Smt.Savithri Amma, who is the mother of the plaintiffs 1 to 6 and the 2[nd] defendant. The defendants 14 to 18 and 63 mentioned in the above suit are the children of the aforesaid Smt.Savithri Amma. The plaintiffs 5 and 6 were not born at the time of passing of final decree in O.S.No.15/1118 ME. The 1[st] defendant is the priest of the temple situated in the plaint schedule property. The temple in the plaint schedule property is a private temple. The 1[st] defendant is conducting poojas in the plaint schedule temple on the R.S.A.No.397 of 2020 **==> picture [22 x 9] intentionally omitted <==** basis of appointment made by the members of the G- Group. Of late, the 1[st] defendant started conducting 'Adharma pooja' in the temple, which is against the rituals followed in the temple. The 1[st] defendant also interfered with the administration of the temple. Hence, the members of the G-Group decided to terminate the 1[st] defendant from the post of poojari. His appointment was terminated as per Advocate Notice dated 03.07.2013. In spite of the receipt of the Advocate notice, he did not handover the key of the temple and possession of the temple to the plaintiffs and the 2[nd] defendant. Hence, the plaintiffs instituted O.S.No.306/2013 before the Munsiff's Court, Chittur, in which the appellant herein is the 1[st] defendant, seeking a prayer directing him to surrender possession and to handover the key of the temple to the plaintiffs and further prohibitory injunction restraining the 1[st] defendant from interfering with the functioning of the temple. R.S.A.No.397 of 2020 ..6.. 3. The 1[st] defendant filed a written statement mainly contending that the 1[st] defendant's grandfather was appointed as 'poojari' by the 'karanavar' of the Palat family. He belongs to the Pandaram community which is known in the area for conducting poojas. After the death of the grandfather Sri.Sankara Pandaram, the father of the 1[st] defendant Sri.Nataraja Pandaram continued to perform hereditary pooja rites. After his death, the 1[st] defendant inherited those rights and he is the current poojari. Hence, the 1[st] defendant filed a written statement mainly contending that the hereditary rights of the poojari of the family of the 1[st] defendant cannot be restrained by anybody and the 1[st] defendant being in lawful possession and enjoyment of the hereditary rights cannot be thrown out by an injunction simpliciter. 4. The trial court decreed the suit. An appeal was filed before the District Court, Palakkad challenging the judgment and decree of the trial court. The learned R.S.A.No.397 of 2020 **==> picture [22 x 9] intentionally omitted <==** Additional District Judge dismissed the appeal filed by the 1[st] defendant. 5. Heard Sri.K.Ramakumar, the learned Senior Counsel for the 1[st] defendant/appellant; and Sri.S.V.Balakrishna Iyer, the learned Senior Counsel for the respondents. 6. Sri.K.Ramakumar, the learned Senior Counsel for the appellant, raises substantial questions of law relating to the rights of a hereditary poojari in a temple as old as 300 years and also a question whether a suit for injunction for removal of such a poojari will lie without seeking declaration of the rights on the plaintiffs. 7. On the other hand, Sri.S.V.Balakrishna Iyer, the learned Senior Counsel for the respondents, would contend that the appellant was terminated from the post of priest in the plaint schedule temple owing to the reason that he has been conducting 'Adharma poojas' by way of slaughtering cocks and billy goats in the plaint schedule R.S.A.No.397 of 2020 **==> picture [22 x 9] intentionally omitted <==** temple and offering liquor before the deity and interfering with the management and administration of the plaint schedule temple. According to the learned Senior Counsel, on a perusal of the lawyer's notice dated 03.07.2013 issued by the plaintiff to the 1[st] defendant, it would irresistibly lead to the inference that the notice was received by the 1[st] defendant as per acknowledgment card, whereby the 1[st] defendant was terminated from the post of priest in the plaint schedule temple on tenable grounds. It was further contended that his termination was not questioned before the court in accordance with the law and the 1[st] defendant, after admitting the derivation of title of the plaintiffs, has interfered with the right of the plaintiffs and their family members to administer the temple and its properties. The learned Senior Counsel for the respondents submitted that the first appellate court examined the evidence on record at length and agreed with the trial court that the plaintiffs R.S.A.No.397 of 2020 **==> picture [22 x 9] intentionally omitted <==** are entitled to get the decree for mandatory injunction directing the 1[st] defendant to surrender the keys of the temple and also prohibitory injunction, restraining the 1[st] defendant from causing any obstruction or interference with the functioning of the plaint schedule temple. It was further contended that the decree was based on cogent and binding documents including the decree in O.S.No.15/1118 ME of the District Court, Thrissur. 8. Coming to the evidence, PWs.1 to 3 were examined and marked Exts.A1 to A11 on the plaintiffs' side. DWs.1 to 4 were examined on the defendants' side and marked Exts.B1 to B36. 9. Ext.A11 is, admittedly, the final decree passed in O.S.No.15/1118ME dated 03.01.1948 by the District Court, Thrissur pertaining to the partition of the properties belonging to Ayyampathy Palat family. Further, the plaintiffs and the 2[nd] defendant are, admittedly, the members of the G-Group mentioned in Ext.A11 final R.S.A.No.397 of 2020 **==> picture [28 x 9] intentionally omitted <==** decree. Ext.A11 would _inter alia_ reveal that the plaint schedule temple was kept as common property belonging to all members of the Ayyampathy Palat family and that the custody and management of the temple was vested with the G-Group members therein. Thus, the plaint schedule temple was devolved on the plaintiffs and the 2[nd] defendant, who were members of the G-Group. All the G- Group members, who are the children of Smt.Savithri Amma, whose 'Thavazhi' is mentioned as the G-Group in Ext.A11 and are given the custody and management of the plaint schedule temple, have filed the suit for the removal of the 1[st] defendant from the post of the priest in the plaint schedule temple. 10. Both the trial court and the first appellate court entered a finding that Smt.Savithri Amma during her life time had appointed Sri.Sankara Pandaram, who is none other than the grandfather of the 1[st] defendant, as the priest of the temple, presumably, for the reason that he R.S.A.No.397 of 2020 **==> picture [28 x 9] intentionally omitted <==** was staying in the neighbourhood and was easily available. After the death of Sankara Pandaram, his son, Nataraja Pandaram, had performed poojas in the temple for the aforesaid reason. The 1[st] defendant, who is the son of Nataraja Pandaram, was appointed by the 1[st] plaintiff to act as the priest of the temple considering the reason of convenience. The trial court and the first appellate court appreciated the evidence of PW2, DW1, DW2 and DW3 in this regard. In view of the oral testimony of the witnesses for the plaintiffs as well as the defendants, it was concurrently held that the 1[st] defendant failed to establish existence of any hereditary right to conduct poojas in the temple. PW2, who is a regular visitor to the plaint schedule temple, testified that the 1[st] defendant has been conducting Adharma poojas in the plaint schedule temple by way of slaughtering cocks and billy goats as well as offering liquor before the deity. It was held that the 1[st] defendant (DW1), as well as DW2 and DW3, admitted R.S.A.No.397 of 2020 **==> picture [28 x 9] intentionally omitted <==** during cross-examination that poojas have been conducted in the temple by slaughtering cocks and billy goats. Pointing out Section 3 of the Kerala Animals and Birds Sacrifices Prohibition Act, 1968, both the trial court and the first appellate court entered a finding that any sacrifice of birds in any temple or its premises is prohibited. 11. _Per contra_ , the 1[st] defendant contended that he has obtained hereditary right to conduct poojas in the plaint schedule temple and his grandfather Sankara Pandaram was initially appointed as priest in the temple by Sri.Krishna Menon, who was the 'karanavar' of the Ayyampathy Palat family, and had conferred the hereditary rights to conduct poojas in the temple. In continuation of his predecessors in interest, according to him, he has been discharging his duties in the temple as a hereditary poojari. 12. However, Ext.A11 final decree would show that R.S.A.No.397 of 2020 **==> picture [28 x 9] intentionally omitted <==** the custody and management is vested with G-Group. Needless to say that, from the date of passing of the final decree, the plaint schedule temple was under the custody and management of G-Group members headed by Smt.Savithri Amma mentioned in the final decree proceedings. As per Ext.A11, Sri.Krishnamenon, who allegedly appointed Sri.Sankara Pandaram as the priest of the temple as a hereditary poojari, is not seen to be a member of the G-Group. Thus, it was concurrently held that the plaintiffs and the 2[nd] defendant, who are G-Group members in the final decree proceedings, have got the right to terminate the 1[st] defendant, who is functioning as the priest in the plaint schedule temple. 13. The learned Senior Counsel for the appellant Sri.K.Ramakumar contended that, when the 1[st] defendant disputed the plaintiffs' title and claimed his right to conduct poojas in the temple as his hereditary right, this regular second appeal raises a substantial question of law R.S.A.No.397 of 2020 **==> picture [28 x 9] intentionally omitted <==** relating to the hereditary right of a poojari in a temple as old as 300 years. According to the learned Senior Counsel, a suit for injunction simpliciter will not lie without seeking declaration of the rights of the plaintiffs. Relying on the decision in **Anathula Sudhakar v. P.Buchi Reddy (Dead) By Lrs. & Ors [(2008) 4 SCC 594]** , the learned Senior Counsel contended that this is a typical case warranting an enquiry into title and the trial court and the first appellate court ought to have referred the plaintiffs to a more comprehensive declaratory suit. 14. In **Anathula Sudhakar's** case (supra), the position in regard to suit for prohibitory injunction relating to immovable property is stated as hereunder:- _“(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential_ R.S.A.No.397 of 2020 ..15.. _injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter._ _A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown._ _(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on_ _possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession._ _(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied). Where the averments regarding title are absent in a plaint and where there is no issue_ R.S.A.No.397 of 2020 ..16.. _relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction._ _(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it_ R.S.A.No.397 of 2020 **==> picture [28 x 9] intentionally omitted <==** _will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”_ 15. The trial court considered issue No.4 as to whether the plaintiffs have the right to terminate the services of the 1[st] defendant in the plaint schedule temple. Issue No.4 was answered in favour of the plaintiffs. The termination of services was done as per Ext.A9 Advocate notice which was received by the 1[st] defendant. However, the termination was not challenged by the 1[st] defendant in accordance with law. It is a fact that the 1[st] defendant was terminated from service. However, he opted not to file a suit or raise a counter claim in the suit seeking a declaration about his hereditary right as 'poojari' of the temple. It is clear that the right is claimed in his personal capacity as a family of poojaris who have been performing the functions of poojaris. Such a contention was not raised by way of counter claim or by way of a separate suit. R.S.A.No.397 of 2020 **==> picture [28 x 9] intentionally omitted <==** However, the 1[st] defendant ignored his termination though the plaintiffs were legally competent to issue notice to the 1[st] defendant as per Ext.A11 final decree passed by the competent court. The right to perform pooja in the temple as a private right of the poojaris cannot be used as a weapon to oust the real owners of the property as per Ext.A11 or to question their right to manage the temple in accordance with family traditions. The right of the poojari to conduct pooja in a private temple is a private right and when his service has been terminated, he has no right to continue his service as poojari unless his right is established in accordance with law. There is nothing on record to indicate that the right to conduct pooja was in the nature of any property right. There is no evidence adduced to show that as per the custom prevailing among the family, any emolument incidental to the same is attached to the office of the poojari. Going by the facts and circumstances of the case, it is clear that the plaintiffs R.S.A.No.397 of 2020 **==> picture [28 x 9] intentionally omitted <==** have clear title and possession over the plaint schedule temple as absolute owners thereof by virtue of Ext.A11 final decree. The conduct of the 1[st] defendant to claim exclusive right over the temple to the detriment of the owners is completely wrong. This is an exception to the normal rule as held in **Anathula Sudhakar's** case (supra) that the question of title can be decided in a suit for injunction if the matter involved is simple and straightforward. It has come out in evidence that the 1[st] defendant vexatiously or wrongfully makes a claim to continue as poojari of the temple even after his termination as per Ext.A9 and is conducting poojas in the temple by slaughtering cocks and billy goats against the Kerala Animals and Birds Sacrifices Prohibition Act, 1968. Hence, it is not necessary to refer the plaintiffs to a more comprehensive declaratory suit. The suit was filed in the year 2013 and driving the plaintiffs to a fresh round of litigation after 8 years would cause untold hardship to R.S.A.No.397 of 2020 **==> picture [28 x 9] intentionally omitted <==** them. The mere contention that the 1[st] defendant has a right to conduct poojas as hereditary priest is not sufficient to convert the suit to one for declaration of title. No evidence was adduced to prove independent right as a hereditary priest to the detriment of the real owner of the plaint schedule temple. 16. It is nobody's case that the decision rendered by the trial court and the first appellate court on any material question, violated any settled question of law or was vitiated by perversity. Both the trial court and the first appellate court were right in holding that the plaintiffs were entitled to both mandatory injunction and prohibitory injunction based on pleadings and evidence. 17. A second appeal only lies on a substantial question of law. It was not open to the appellant to reagitate facts or to call upon the High Court to re-analyse or re-appreciate evidence in a second appeal. Section 100 of the C.P.C. restricts the right of second appeal to only R.S.A.No.397 of 2020 **==> picture [28 x 9] intentionally omitted <==** those cases where a substantial question of law is involved. To be a substantial question of law involved in the case, there must be first, a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of facts arrived at by the two courts below. Where no question of law, nor even a mixed question of law and fact was urged before the trial court or the first appellate court, a second appeal cannot be entertained unless such a course is absolutely warranted. There are no grounds to interfere with the concurrent findings of the two courts below. There was no debatable issue before this Court. The legal dictum in **Anathula Sudhakar's** case (supra) is not applicable in this case. For the reasons discussed above, the R.S.A. is dismissed. There will be no order as to costs. Pending applications, if any, stand disposed of. Sd/- skj **N.ANIL KUMAR, JUDGE**