Thrikkulasekharapuram Kshethra Upadesaka Samithi v. Thrikkulasekharapuram NSS Karayogam No.2657

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943** **RSA NO. 129 OF 2021** **[AGAINST THE DECREE AND JUDGMENT DTD:26.02.2020 OF THE PRINCIPAL SUBORDINATE JUDGE, IRINJALAKUDA IN AS 159/2017 AGAINST THE DECREE AND JUDGMENT DTD.31.8.2017 IN OS 2389/2013 OF MUNSIFF COURT, KODUNGALLUR, THRISSUR]** ## **APPELLANT/APPELLANT/PLAINTIFF:** THRIKKULASEKHARAPURAM KSHETHRA UPADESAKA SAMITHI T.K.S PURAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, REP. BY IT'S PRESENT JOINT SECRETARY SUNI, AGED 47 YEARS, KARAYATH, P.O. METHALA, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN-680 669. BY ADVS. K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 ANANDAVALLI AGED 77 YEARS W/O. KAVUNGAL ANADVEETTIL VIJAYAN MENON, T.K.S PURAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN-680 664. 2 VENUGOPALAN, AGED 74 YEARS S/O. CHITTADE DEVAKI, T.K.S PURAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN-680664 3 RADHA POTHUVAL, AGED 59 YEARS W/O. KALACHIRATT ANADIYIL, DAMODHARA POTHUVAL, T.K.S PURAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN-680 664. 4 RADHA HEMACHANDRAN, AGED 55, W/O. MUPPATHUTTYPARAMBIL, (PANJAJANYAM) VEETTIL HEMACHANDRAN, T.K.S. PURAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN-680 664 R.S.A.Nos. 129/2021 & 881/2020 :-2-: 5 MURALEEDHARAN, AGED 64 YEARS CHAKKUNGAIVEETTIL HOUSE, T.K.S. PURAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN-680 664 6 JAYA MURALEEDHARAN, AGED 49, W/O. ELEDATHPARAMBIL MURALEEDHARAN, T.K.S. PURAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN-680 664. 7 RAMADEVI @ JAYA, AGED 50, D/O. THACHIL MARATH KOUMUDHI AMMA, T.K.S. PURAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN 680 664. 8 RADHA BALAN, AGED 59 YEARS W/O. MADHAVAMVEETTIL BALAN MENON, EAST OF COOPERATIVE BANK, T.K.S PURAM DESOM, METHALA VILLAGE, KODUGALLUR TALUK, PIN-680 664 9 NANDHAN, AGED 64 YEARS NADUVILAKATTIL HOUSE, ARAKKULAM KODER LANE DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN680 664. 10 KANAKAM, AGED 60 YEARS NADUVILAKATTIL HOUSE, ARAKKULAM, KODER LANE DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN680 664 11 AMBIKA, AGED 64 YEARS NADUVILAKATTIL HOUSE, ARAKKULAM KODER LANE DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN680 664. 12 KANAKAMANI, AGED 60 YEARS NADUVILAKATTIL HOUSE, ARAKKULAM, WEST DESOM, PADINJATT (SREEVALSAM), METHALA VILLAGE, KODUNGALLUR TALUK, PIN-680 664 R.S.A.Nos. 129/2021 & 881/2020 :-3-: 13 GANGADEVI (BHAGYAM), AGED 45, W/O. THACHIL MARATH VIDHYADHARAN, CHALAKULAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN-680 664. 14 USHA MOHAN, AGED 49, W/O. KILIKKOTTVEETTIL MOHANAN, KANDAMKULAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN-680 669 15 VALSAKUMARI, AGED 49 YEARS W/O. VIYYATH SASI, KADUKKACHUVAD DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN-680 669 BY ADVS. SMT.N.SHOBHA SRI.K.SHRIHARI RAO [FOR R2 & R3] THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2021, ALONG WITH RSA.881/2020, THE COURT ON 02.07.2021 DELIVERED THE FOLLOWING: R.S.A.Nos. 129/2021 & 881/2020 :-4-: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 2[ND] DAY OF JULY, 2021 / 11TH ASHADHA, 1943** **RSA NO. 881 OF 2020** **[AGAINST THE DECREE AND JUDGMENT DTD:26.02.2020 OF THE PRINCIPAL SUBORDINATE JUDGE, IRINJALAKUDA IN AS 161/2017 AGAINST THE DECREE AND JUDGMENT DTD.31.8.2017 IN OS 858/2014 OF MUNSIFF COURT, KODUNGALLUR, THRISSUR]** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** 1 THRIKKULASEKHARAPURAM KSHETHRA UPADESHAKA SAMITHI T.K.S.PURAM DESOM,METHALA VILLAGE, KODUNGALLUR TALUK,REPRESENTED BY ITS PRESENT PRESIDENT SULEKHA ANIRUDHAN, AGED 72 YEARS,W/O.ANIRUDHAN,KOTTAPPURAM.P.O, KODUNGALLUR,THRISSUR DISTRICT,PIN-680667. 2 THRIKKKULASEKHARAPURAM KSHETHRA UPADESAKA SAMITHI, T.K.S.PURAM DESOM,METHALA VILLAGE, KODUNGALLUR TALUK,REPRESENTED BY ITS SECRETARY,M.C.GIREESH,AGED 44 YEARS,S/O MANALLIKATTIL CHANDRAN,KADUKKACHUVAD DESOM,METHALA VILLAGE,KODUNGALLUR TALUK, PIN-680669. BY ADVS. K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** 1 THRIKKULASEKHARAPURAM NSS KARAYOGAM NO 2657 T.K.S.PURAM DESOM,METHALA VILLAGE, KODUNGALLUR TALUK,REPRESENTED BY ITS PRESIDENT ANANDHAVALLY,AGED 82, R.S.A.Nos. 129/2021 & 881/2020 :-5-: W/O KAVUNGAL ANATT VIJAYAN MENON, METHALA VILLAGE,KODUNGALLUR TALUK. 2 THRIKKULASEKHARAPURAM NSS KARAYOGAM NO.2657, T.K.S.PURAM DESOM,METHALA VILLAGE, KODUNGALLUR TALUK,REPRESENTED BY ITS SECRETARY VENUGOPALAN,AGED 77, S/O CHITTATT DEVAKI AMMA, METHALA VILLAGE,KODUNGALLUR TALUK. 3 THRIKKULASEKHARAPURAM NSS KARAYOGAM NO.2657, T.K.S.PURAM DESOM,METHALA VILLAGE, KODUNGALLUR TALUK,REPRESENTED BY ITS TREASURER,VENUGOPAL,AGED 59,S/O.ETTUVEEETTIL KARTHIKEYA MENON,METHALA VILLAGE,KODUNGALLUR TALUK,PIN-680669. BY ADVS. SRI.K.SHRIHARI RAO SMT.N.SHOBHA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2021, ALONG WITH RSA.129/2021, THE COURT ON 02.07.2021 DELIVERED THE FOLLOWING: R.S.A.Nos. 129/2021 & 881/2020 :-6-: ## **J U D G M E N T** **[RSA Nos.129/2021 & 881/2020]** Common judgment and decree dated 31.8.2017 in OS Nos.2389/2013 and 858/2014 of the Munsiff's court, Kodungallur (hereinafter referred to for short as 'the trial court'), which is confirmed by the Principal Subordinate Judge's Court, Irinjalakuda (hereinafter referred to for short as 'the first appellate court') by judgment and decree dated 26.02.2020 in A.S.Nos.159/2017 and 161/2017 are under challenge before this Court in the second appeal. The trial court dismissed O.S.No. 2389/2013 and decreed O.S.No.858/2014. In OS No.858/2014, the trial court granted a decree for recovery of possession of the plaint schedule properties to the plaintiffs. Further, the trial court granted a decree for permanent prohibitory injunction restraining the defendants from obstructing the plaintiffs in convening their meetings in the building in the plaint schedule property and also from obstructing the day-to-day affairs of the first plaintiff therein. R.S.A.Nos. 129/2021 & 881/2020 :-7-: The first plaintiff in OS 858/2014 is Thrikkulasekharapuram NSS Karayogam No.2657 (herineafter referred to as 'the Karayogam') represented by its President. The plaintiffs 2 and 3 are its President, its Secretary and its Treasurer respectively. The first defendant in OS No.858/2014 is Thrikkulaskharapuram Kshethra Upadesaka Samithi (hereinafter referred to as 'the Samithi') represented by its President and the second defendant is its Secretary respectively. In OS 2389/2013, the plaintiff is the Samithi, represented by its Joint Secretary. The plaintiffs 1 and 2 in O.S.No.858/2014 are the defendants 1 and 2 in O.S.No.2389/2013 in their personal capacity along with defendants 3 to 15. The said suit was filed by the Samithi for permanent prohibitory injunction restraining the defendants (defendants 1 and 2 are the plaintiffs in OS 858/2014) from causing obstruction to the activities of the samithi in the plaint schedule property or committing waste therein by way of a decree for permanent prohibitory injunction. R.S.A.Nos. 129/2021 & 881/2020 :-8-: 2. Both suits were tried jointly by the trial court, treating OS 858/2014 as the leading case. The entire evidence was adduced in O.S.No.858/2014. The parties are hereinafter referred to as plaintiffs and defendants according to their status in OS 858/2014 unless otherwise stated. 3. During the trial of the case, PWs.1 and 2 were examined and marked as Exts.A1 to A7 on the side of the plaintiffs. The Commission report and rough sketch were marked as Exts.C1 to C2(a). No oral or documentary evidence was adduced by the defendants. 4. Challenging the judgment and decree, two first appeals were filed before the Principal Subordinate Judge's Court, Irinjalakuda as AS No.159/2017 and AS No.161/2017 respectively. The first appellate court dismissed both the appeals confirming the common judgment dated 31.8.2017 of the trial court. Feeling aggrieved, the Samithi preferred the above Regular Second Appeals. R.S.A.Nos. 129/2021 & 881/2020 :-9-: 5. The plaint averments in OS 858/2014(lead case) are as follows:- The first plaintiff is the karayogam, an organisation for the social advancement and welfare of the Nair community. The plaint schedule property originally belonged to Kodungallur Kovilakam. Late Rama Varma @ Godavaram of the Kovilakam handed over Valiyaraja Kodungallur possession of the plaint schedule property to Adv.Gangadhara Menon, the then President of the Karayogam to commence social activities of the karayogam and thereafter, the Karayogam started functioning therein. An old building in the plaint schedule property was reconstructed by the plaintiffs. After taking possession of the plaint schedule property, the karayogam has been in possession of the plaint schedule property more than 50 years. The defendants unauthorisedly encroached into the plaint schedule property under the colour of an advisory committee and forcibly possessed the same. Thereafter, the Samithy filed OS No.2389/2013 before the R.S.A.Nos. 129/2021 & 881/2020 :-10-: Munsiff's Court, Kodungallur against the members of the institution seeking permanent prohibitory injunction restraining the members of the karayogam from entering into the building. Hence the plaintiffs filed O.S.No.858/2014 for recovery of the building from the defendants and also for consequential permanent prohibitory injunction. The plaintiffs, who are defendants 1 and 2 in O.S.No. 2389/2018, filed written statement in the said suit raising the very same contentions as stated above. 6. The defendants filed written statement contending that the Karayogam has not obtained any right over the plaint schedule property. According to them, Thrikkulasekharapuram Sree Krishna temple is an ancient temple having a vast extent of property of around 4 acres. The plaint schedule property is situated on north eastern corner of the temple property. There was a committee for looking after the day to day affairs of the temple. The property was never obtained by the plaintiffs as per the licence or in any other way. R.S.A.Nos. 129/2021 & 881/2020 :-11-: The plaintiffs are trying to grab the plaint schedule property from the defendants. There are a lot of movables used for the temple purpose in the plaint schedule building. Some members of the plaintiff- institution, who were members of the temple advisory committee, encroached into the plaint schedule property and uttered abusive words towards the members of the committee. When the members of the plaintiff institution made a request for allowing them to use the building in the plaint schedule property for conducting their meetings, the defendants raised dispute touching the powers of the temple advisory committee. Thereupon, the temple advisory committee(Samithi) filed OS 2389/2013 before the trial court. Karayogam has not obtained any right over the plaint schedule property and the building therein. Late Gangadhara Menon was not the president of Karayogam and it was contended that Gangadhara Menon did not get possession of the property for and on behalf of the Karayogam. The defendants maintained that they have been in possession of the plaint schedule R.S.A.Nos. 129/2021 & 881/2020 :-12-: property for and on behalf of the Temple Advisory Committee. Hence, the plaintiffs are not entitled to get any relief in the suit. Since the plaintiffs (Karayogam) have been obstructing the activities of the Temple Advisory Committee, the defendants (Samithi) are entitled to get a decree for permanent injunction restraining the plaintiffs from interfering with their possession for which they have filed OS NO.2389/2013 before the trial court. 7. In considering the above facts, it is evident that the suits are in between the Karayogam and Samithi (the Temple Advisory Committee). The plaintiffs have produced Ext.A1 licence agreement dated 18.12.1964. Ext.A1 licence agreement was executed by Godavarma Valiyaraja in favour of late Gangadhara Menon. Admittedly, the plaint schedule property originally belonged to Kodungallur Kovilakam. Ext.A1 is dated 18.12.1964. It is an original document, more than 30 years old. It is clear from Ext.A1 that Godavarma Valiyaraja of Kodungallur Kovilakam handed over possession R.S.A.Nos. 129/2021 & 881/2020 :-13-: of the plaint schedule property to late Gangadhara Menon in respect of the plaint schedule property. The defendants have no case that the property was given to them by the Kodungallur Kovilakam. Since the derivation of title was admitted by the defendants, they had contended that the property was given to late Gangadhara Menon by the Kovilakam. According to the defendants, the karayogam had no right or interest in the property. However, the defendants has no case that late Gangadhara Menon was using the plaint schedule property for his personal use. The plaintiffs would contend that Gangadhara Menon was the President of the first plaintiff institution when Ext.A1 was executed. PWs.1 and 2 adduced evidence before this Court that Gangadhara Menon was the President of the Karayogam on the date of execution of Ext.A1. However, the defendants have not denied the fact that late Gangadhara Menon was the president of first plaintiffInstitution when Ext.A1 was executed. The defendants did not adduce any oral or documentary evidence before the trial court. R.S.A.Nos. 129/2021 & 881/2020 :-14-: In the absence of reliable evidence on the part of the defendants, both the trial court and the appellate court considered the surrounding circumstances to ascertain the possession of Gangadhara Menon over the plaint schedule property. Significantly, at present, the building in the plaint schedule property is assessed in the name of karayogam by the local authority. Ext.A6 building tax receipt issued in the name of the first plaintiff institution is dated 21.7.2016. The issued Ext.A5 certificate on Kodungallur Municipality 4.6.2012 stating that the building in the plaint schedule property was assessed in the name of karayogam from the year 1987 onwards. The Kerala State Electricity Board has issued a certificate stating that electrical connection in the building of the plaint schedule property is in the name of Karayogam from 1991 onwards. Plaintiffs have produced Ext.A2 registration certificate issued by the Nair Service Society in the name of karayogam dated 20.10.1964. Ext.A3 is the by-law of the first plaintiff Karayogam. Based on the above evidence, both the R.S.A.Nos. 129/2021 & 881/2020 **==> picture [28 x 9] intentionally omitted <==** trial court and the first appellate court entered into a finding that late Gangadhara Menon obtained plaint schedule property and the building therein for and on behalf of the Karayogam pursuant to Ext.A1. The defendants have no case that the licence agreement in between Kodungallur Kovilakam and Late Gangadhara Menon was terminated and they obtained possession of the property thereafter. 8. During the trial of the case, the plaintiffs have filed an application to appoint a commission to ascertain the nature, lie and boundaries of the plaint schedule property. The commissioner filed Exts.C1 commission report and C1(a) rough sketch. The commissioner had reported that there is an arch in front of the building in the plaint schedule property and in the same, there is an inscription under the name and style 'T.K.S. Puram NSS Karayogam'. The commissioner further reported that there is a schedule on the inner wall of the plaint schedule the names of who property stating persons, contributed for the construction of the building. According to ## R.S.A.Nos. 129/2021 & 881/2020 :-16-: the Commissioner, the photo of Mannath Padmanabhan, the founder of NSS is found a place in the inner wall of the aforesaid building. In considering the aforesaid facts and circumstances, the trial court and the appellate court concurrently held that there is merit in the allegation of the plaintiff that the defendants encroached into the plaint schedule property, took illegal possession of the same and instituted OS No.2389/2013 against the members of the Karayogam on insufficient grounds. 9. It is settled principle of law that the possession is a good title of right against any one, who cannot show a better title. A wrongful possessor has the right of an owner with respect to all persons except earlier possessors and except the true owner himself. It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. The rightful owner does not come forward so far and assert his R.S.A.Nos. 129/2021 & 881/2020 :-17-: title by the process of law. It has come out in evidence that the plaint schedule property has been in the possession of karayogam prior to the alleged trespass made by the defendants. In v. **Ramesh Chand Ardawatiya Anil Panjwani** [AIR 2003 SC 2508] the Apex Court held in paragraph 36 of judgment as under:- “36. So, the person in possession may not have title to the property yet if he has been inducted into possession by the rightful owner and is in peaceful and settled possession of such property he is entitled in law to protect the possession until dispossessed by due process of law by a person having a title better than what he has. A person in possession of the property cannot be forcibly dispossessed by another rank trespasser and even if the latter does so, the former may be entitled to restoration of possession, because the law respects peaceful possession and frowns upon the person who takes the law in his own hands.” 10. In view of the legal principles cited above, the suit for recovery of possession and consequential injunction filed by the plaintiffs is perfectly maintainable before a civil court. The trial court and appellate court concurrently held that the plaintiffs are entitled to a decree seeking recovery of possession and consequential injunction as prayed for. No substantial questions of law are involved in this appeal. Hence, R.S.A.Nos. 129/2021 & 881/2020 :-18-: the appeals are liable to be dismissed in limine. Resultantly, the appeals are dismissed. No costs. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR, JUDGE** MBS/