Thulaseedharan v. Muthalasseril Sree Durga Bhadra Bhagavathy Kshetram and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY ,THE 11TH DAY OF DECEMBER 2018 / 20TH AGRAHAYANA, 1940** ## **WP(C).No. 4080 of 2018** ## **PETITIONER/S:** **THULASEEDHARAN AGED 57 YEARS S/O.SREEDHARAN, ARYA BHAVANATHU,KALLELIBHAGOM MURI, KALLELIBHAGOM VILLAGE,KARUNAGAPPALLY - 690 519. BY ADV. SRI.K.SUBASH CHANDRA BOSE** ## **RESPONDENT/S:** |**1**|**MUTHALASSERIL SREE DURGA BHADRA BHAGAVATHI KSHETRAM**| |---|---| ||**PULIYOORVANCHI THEKKUMURI, KARUNAGAPPALLY**| ||**TALUK,REPRESENTED BY DIVAKARAN PARTY RECEIVER**| ||**APPOINTED INOS NO.461/2014 OF THE HON'BLE MUNSIFF'S**| ||**COURT, KARUNAGAPPALLY 690 518.**| |**2**|**DIVAKARAN SO.KRISHNAN**| ||**KANNAMBALLITHARA, ADINADU THEKKUMURI,ADINADU**| ||**VILLAGE, KARUNAGAPPALLY - 690 542FROM MUTHALASSERIL**| ||**VEEDU, PULIYOORVANCHI SOUTH,THODIYOOR VILLAGE,**| ||**KARUNAGAPPALLY 690 518.**| |**3**|**PRASAD**| ||**S/O.DIVAKARAN, AGED 57 YEARS,RESIDING AT AZAD**| ||**BHAVAN, ADINADU THEKKUMURI,KARUNAGAPPALLY TALUK,**| ||**KOLLAM DISTRICT 690 518.**| ||**BY ADVS.**| ||**SRI.GIBI.C.GEORGE**| ||**SMT.K.G.BINDU**| ||**SMT.T.S.MAYA (THIYADIL)**| ||**SRI.V.PHILIP MATHEW**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2018, THE COURT ON 11.12.2018 DELIVERED THE FOLLOWING:** 2 _**WP(C).4080/18**_ ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 4080 of 2018 ----------------------------------------------Dated this the 11[th] day of December, 2018** ## **JUDGMENT** This writ petition is filed challenging Exhibits P20 and P21 compromise filed in O.S.No.19/2017 before the Lok Adalat and the award passed thereon. It is contended that Exhibit P20 compromise and Exhibit P21 award are fraudulent and collusive acts of the 2[nd] and 3[rd] respondents. It is stated that the petitioner is a devotee of Muthalasseril Sree Durga Bhadra Bhagavathy Temple, a member of the Muthalasseri Family and the Vice President of Muthalasseril Sree Durga Bhadra Bhagavathy Temple Devaswom Trust. It is contended that the temple is being managed by a committee elected from the public as well as the family members and the temple has attained the character of a public trust. It is stated that Exhibit P3 trust deed had been executed for administration of the temple which was challenged by the 2[nd] respondent by filing O.S.No.421/2014 before the Munsiff's Court, Karunagappally. The petitioner and others have filed O.S.No.461/2014 for injunction restraining the defendants including respondents 2 and 3 herein from interfering with the administration of the temple. It is stated that a receiver had been appointed and that reports have been filed by the receiver before the court. It is stated that the suits were heard together and O.S.No.421/2014 was decreed and O.S.No.461/2014 was dismissed 3 _**WP(C).4080/18**_ by a common decree against which A.S.Nos.20 and 21 of 2014 have been filed before the Sub Court, Karunagappally and the appeals are pending. It is stated that while so, O.S.No.19 of 2017 was filed before the Sub Court, Karunagappally by the 3[rd] respondent seeking to realise a sum of Rs.81,90,762/- from the 1[st] defendant temple and it's properties and Exhibit P20 collusive compromise was filed based on which Exhibit P21 award was passed by the Lok Adalat creating a charge on the property of the temple. Learned counsel for the petitioner relies on the decisions of the Apex Court in _**Dalip Singh v. State of Uttar Pradesh**_ [(2010)2 SCC 114], _**Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira**_ [(2012)5 SCC 370] and _**Kothakapu Muthyam Reddy v. Bhargavi Constructions**_ [2015(5) ALT 476]. 2. Respondents 1 and 2 have filed a detailed counter affidavit, wherein it is stated that O.S.Nos.421 and 461 of 2018 were decreed by the Munsiff's Court, Karunagappally after a detailed consideration of the facts and circumstances. It is stated that Exhibit P3 trust deed was set aside by the Muinsiff's Court and it was held that the petitioner and other trustees have no nature of rights over the properties or the administration of the temple. It is stated that the pendency of O.S.No.19 of 2017 was adverted to in the common judgment of the Munsiff's Court, Karunagappally and that the petitioner, who has been held to have no rights, cannot challenge the compromise entered into between the parties to a suit. The learned counsel relies on _**State of Punjab v.**_ 4 _**WP(C).4080/18**_ _**Jalour Singh**_ [JT 2008(2) SC 83], _**Batchu Subba Lakshmi v. Sannidhi Srinivasulu**_ [2010(1) ALT 483], _**Kishan Rao v. Bidar District Legal Services Authority**_ [AIR 2001 Kant. 407] and _**Bharvagi Constructions**_ _**v. Kothakapu Muthyam Reddy**_ [JT 2017(8) SC 586]. The learned counsel also relies on a decision of a Division Bench of this Court in _**Kidargoor Devaswom v. K.N.Krishnan Namboothiri**_ [2016 KHC 2934] in support of the contention that even where active public participation in the conduct of a temple is pleaded and proved, the private character of the ownership of the temple need not change. 3. A detailed counter affidavit has been placed on record by the 3[rd] respondent as well. It is contended therein that the very assumption that the temple is a public temple on the premise on which the writ petition is filed is erroneous. It is stated that this writ petition itself is not maintainable, since only a party to a suit can challenge an award passed by the Lok Adalat and that too, on the short and limited grounds available in terms of the decision of the Apex Court in _**Bharvagi Constructions v. Kothakapu Muthyam Reddy**_ [2017 KHC 6630]. It is further contended that the writ petitioner, who is not a party to the suit, is not affected by the award passed by the Lok Adalat and can maintain a suit for setting aside the compromise decree, if he is the opinion that it is vitiated by fraud. It is stated that since Exhibit R3(b) judgment settles the rights of the parties, the petitioner will have to await the decision in the appeal preferred by him as against Exhibit R3(b) judgment. It is stated 5 _**WP(C).4080/18**_ that the petitioner, who has been held to be a stranger to the property as well as to the administration of the temple cannot be heard to contend that there is any prejudice caused to him by Exhibit P21 award. It is stated that Exhibit P21 award was sought to be executed by the 3[rd] respondent and the petitioner had filed a claim petition in the execution petition filed by the 3[rd] respondent, the petitioner's claim petition has been dismissed against which he has not filed any appeal. 4. I have considered the contentions advanced on all sides. Exhibit P21 is an award passed in terms of a compromise entered into between the parties to a suit. It appears that the 1[st] defendant in the suit was represented by the 2[nd] respondent herein. The Lok Adalat recorded the compromise as entered into between the parties to the suit creating a charge on the temple property as well. 5. The learned counsel appearing for respondents 2 and 3 submits that the property on which a charge is created by the compromise decree, does not form an integral part of temple properties and is only a portion of the property adjacent to the property in which the temple is situated. The decisions of the Apex Court in _**Pushpa Devi Bhagat (Dead) Through Lr.Sadhna Rai (Smt) v. Rajinder Singh and Others**_ [2006 KHC 833], _**Bharvagi Constructions' case (supra), State of Punjab v. Jalour Singh**_ [JT 2008(2) SC 83] and of the various High Courts are relied on to contend that only a party to a compromise decree can challenge it before this Court on the ground that the 6 _**WP(C).4080/18**_ compromise was fraudulent by collusion. It is stated that in a case like the present one where the petitioner is not a party to the suit and where Exhibit R3(b) specifically states that the petitioner is not a person interested in the temple, the petitioner would have to await the decision in the appeal preferred by him as against Exhibit R3(b) before he can raise any contentions. 6. Having considered the contentions advanced, I am of the opinion that the parties are bound by Exhibit R3(b) judgment subject to appropriate orders to be passed in the appeal. In view of the fact that the trust deed has been set aside and the petitioner has been injuncted against the interference with the administration of the temple, I am of the opinion that as at present, the petitioner cannot be said to be a person aggrieved by the compromise entered into between the respondents and the consequent award passed by the Lok Adalat. Only a person having any interest in the subject matter of the dispute can be said to be aggrieved by the recording of a compromise decree. Even otherwise, the petitioner, who is not a party to the decree, cannot legally raise a contention against the same unless he has a right over the subject matter of the dispute. As presently advised, the petitioner has been held to have no rights over the property in question. In the above view of the matter, I am of the opinion that the petitioner's rights, if any, with regard to the administration of the temple will have to be decided before the petitioner can claim any right over the temple and 7 _**WP(C).4080/18**_ consequently any right to adjudicate as against Exhibit P21 award of the Lok Adalat. The prayers sought for cannot be granted. However, it is made clear that Exhibit P21 and any further steps thereon will be subject to the result of the appeals pending from Exhibit R2(b) judgment. The parties shall not further alienate the properties until the rights are settled in the proceedings pending in the Civil Court. The writ petition fails and is ordered accordingly. **Sd/ANU SIVARAMAN JUDGE** _vgs_ 8 _**WP(C).4080/18**_ ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PARTITION DEED NO.1505 DATED 25TH MEDAM 1103 ME** - **EXHIBIT P2 TRUE COPIES OF THE BASIC TAX RECEIPTS FOR REMITTING THE PROPERTY TAX OF THE 1ST RESPONDENT TEMPLE** - **EXHIBIT P3 TRUE COPY OF THE TRUST DEED NO.IV/165/2012** - **EXHIBIT P4 TRUE COPY OF THE PLAINT IN OS NO.421/2014 FILED BEFORE THE MUNSIFF'S COURT KARUNAGAPPALLY** - **EXHIBIT P5 TRUE COPY OF THE PLAINT IN OS NO.461/2014 BEFORE THE MUNSIFF'S COURT KARUNAGAPPALLY** - **EXHIBIT P6 TRUE COPY OF THE COMMON ORDER IN IA NO.2059/14 AND I.A NO.2248/14 OS NO.461/2014 OF THE MUNSIFF'S COURT, KARUNAGAPPALLY** **EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA NO.1059/2015 IN OS NO.461/2014 BEFORE THE MUNSIFF'S COURT, KARUNAGAPPALLY** - **EXHIBIT P8 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY RECEIVER ADVOCATE P.K.PRABHAKARAN IA NO.1059/2015 IN OS NO.461/2014 BEFORE THE MUNSIFF'S COURT, KARUNAGAPPALLY** - **EXHIBIT P9 TRUE COPY OF THE POWER OF ATTORNEY DATED 7/8/2015 EXECUTED BY THE 2ND RESPONDENT IN FAVOUR OF THE 3RD RESPONDENT** - **EXHIBIT P10 TRUE COPY OF THE AFFIDAVIT FILED BY THE COOK OF THE TEMPLE COMPLAINING ABOUT THE STOPPAGE OF OFFERING OF THE DEVOTEES AND OTHER MATTERS ON 8/10/2015 IN OS NO.461/2014 FILED BEFORE THE MUNSIFF'S COURT, KARUNAGAPPALLY** **EXHIBIT P11 TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA NO.1966/2015 DATED 16/9/2015 FILED IN OS NO.461/2014 OF THE MUNSIFF'S COURT, KARUNAGAPPALLY** 9 _**WP(C).4080/18**_ |**EXHIBIT P12**|**TRUE COPY OF THE AFFIDAVIT DATED 28/11/2015**| |---|---| ||**FILED BY THE 2ND RESPONDENT IN SUPPORT OF**| ||**THE PETITION IN IA NO.1966/2015 IN OS**| ||**NO.461/2014 OF THE MUNSIFF'S COURT,**| ||**KARUNAGAPPALLY**| |**EXHIBIT P13**|**TRUE COPY OF THE SETTLEMENT DEED DATED**| ||**26/4/2016 EXECUTED BY THE 2ND RESPONDENT IN**| ||**FAVOUR OF THE 3RD RESPONDENT**| |**EXHIBIT P14**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**03/05/2016 SUBMITTED BY THE 2ND RESPONDENT**| |**EXHIBIT P15**|**TRUE COPY OF THE LETTER THE SUB REGISTRAR,**| ||**KARUNAGAPPALLY DATED 18/5/2016**| |**EXHIBIT P16**|**TRUE COPY OF THE JUDGMENT IN WPC**| ||**NO.18664/2016 DATED 29/7/2016 BEFORE THE**| ||**HON'BLE HIGH COURT OF KERALA**| |**EXHIBIT P17**|**TRUE COPY OF THE JUDGMENT IN WRIT APPEAL**| ||**NO.1877/2016 DATED 28/9/2016 BEFORE THE**| ||**HON'BLE HIGH COURT OF KERALA**| |**EXHIBIT P18**|**TRUE COPY OF THE ORDER DATED 30/12/2016**| ||**OBTAINED UNDER THE RIGHT TO INFORMATION ACT**| ||**BY THE PRESIDENT OF THE DEVASWOM**| |**EXHIBIT P19**|**TRUE COPY OF THE PLAINT IN OS NO.19 OF 2017**| ||**BEFORE THE SUB COURT, KARUNAGAPPALLY**| |**EXHIBIT P20**|**TRUE COPY OF THE COMPROMISE FILED IN OS**| ||**NO.19/2017 DATED 22/9/2017 BEFORE THE SUB**| ||**COURT, KARUNAGAPPALLY**| |**EXHIBIT P21**|**TRUE COPY OF THE AWARD PASSED IN THE LOK**| ||**ADALATH ON 22/9/2017 IN OS NO.19/2017**| |**EXHIBIT P22**|**TRUE COPY OF THE B DIARY IN OS NO.19/17**| ||**BEFORE THE SUB COURT, KARUNAGAPPALLY**| RESPONDENTS' EXHIBITS: EXHIBIT R3(a): COPY OF MINUTES BOOK OF THE 1ST RESPONDENT FROM 7.12.2011 TO 6.4.2014. EXHIBIT R3(b): COPY OF COMMON JUDGMENT IN O.S.NO.421 OF 2014 AND O.S.NO.461 OF 2014 OF THE MUNSIFF'S COURT, KARUNAGAPPALLY. EXHIBIT R3(c): COPY OF ORDER DATED 31.8.2018 IN E.A.NO.77/2018 IN E.P.NO.7/2018 IN O.S.NO.19/2017 OF THE SUB COURT, KARUNAGAPPALLY.