Vasu and others v. Chathamangalam Ezhava Samudaya Sangham and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938 RSA.No. 199 of 2005 (F) ------------------------ AGAINST THE JUDGMENT AND DECREE IN AS NO. 304/2000 AND I.A.NO.2718/2003 of I ADDITIONAL DISTRICT COURT, PALAKKAD DATED 23-11-2004 AGAINST THE JUDGMENT AND DECREE IN OS NO. 505/1997 of MUNSIFF COURT, CHITTUR DATED 07-07-2000 APPELLANTS/RESPONDENTS NO. 1 TO 4 & 7 TO 11/DEFENDANTS NO.1 TO 4 & 7 TO 11 : ----------------------------------------------------- 1. VASU, PRESIDENT, CHATHAMANGALAM SNDP BRANCH, S/O.KAATHU, RESIDING AT CHATHAMANGALAM, NENMARA VILLAGE, CHITTUR TALUK. 2. BALAKRISHNAN, SECRETARY OF THE CHATHAMANGALAM SNDP BRANCH, RESIDING AT PONDIKKAL VEEDU, CHATHAMANGALAM, NENMARA, CHITTUR TALUK. 3. APPUNNI, COMITTEE MEMBER OF THE CHATHAMANGALAM SNDP BRANCH, S/O.KUNCHAPPU, RESIDING AT MATTAYI VEEDU, CHATHAMANGALAM, NENMARA VILLAGE, CHITTUR TALUK. 4. MADHAVAN, S/O.CHAMUNNI, RESIDING AT CHEENIKKODU VEEDU, CHATHAMANGALAM, NENMARA VILLAGE, CHITTUR TALUK. 5. APPUKUTY, S/O.NAGU, CHATHAMANGALAM, NENMARA VILLAGE, CHITTUR TALUK. 6. R.VASUDEVAN, S/O.RAMASWAMY, RESIDING AT NAMBOODIRI PARAMBU VEEDU, NENMARA VILLAGE, CHITTUR TALUK. 7. CHENTHAMARA, S/O.KESAVAN, RESIDING AT CHEENIKKODE, CHATHAMANGALAM, NENMARA VILLAGE, CHITTUR TALUK. 8. RAMAKRISHNAN, S/O.KESAVAN, RESIDING AT CHATHAMANGALAM, NENMARA VILLAGE, CHITTUR TALUK. 9. KITTU, S/O.KANDAN, RESIDING AT CHEENIKKODE, CHATHAMANGALAM, NENMARA VILLAGE, CHITTUR TALUK. BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RSA NO.199/2005 2 RESPONDENTS/APPELLANTS & RESPONDENTS 5 &6/PLAINTIFF & DEFENDANTS 5 & 6: ------------------------------------------------------- 1. CHATHAMANGALAM EZHUVA SAMUDAYA SANGHAM NO.PKD-TC-36/97, NENMARA VILLAGE, CHITTUR TALUK, PALAKKAD DIST REPRESENTED BY ITS PRESIDENT P.R.MADHAVAN, S/O.RAMAN, RESIDING AT PONDIKKAL VEEDU, CHATHAMANGALAM, NENMARA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 2. N.RAMACHANDRAN, SECRETARY OF THE ABOVE SANGHAM, S/O.NARAYANAN, RESIDING AT CHEENIKKODE VEEDU, CHATHAMANGALAM, NENMARA VILLAGE, PALAKKAD DISTRICT. 3. APPUNNI, VICE-PRESIDENT OF THE ABOVE SANGHAM, S/O.RAMAN, RESIDING AT CHATHAMANGALAM, NENMARA VILLAGE, PALAKKAD DISTRICT. 4. BALAN, EXECUTIVE MEMBER OF THE ABOVE SANGHAM, S/O.DHARMAN, RESIDING AT -DO- 5. AARU, S/O.KUNCHU, RESIDING AT KOLLAYANGADU, NENMARA VILLAGE, CHITTUR TALUK. 6. CHANDRAN, S/O.THEETAN, RESIDING AT -DO- -DO- R1, R3 & R4 BY ADV. SRI.JACOB SEBASTIAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------R.S.A. No.199 of 2005** **-------------------------------------Dated this the 9[th] day of August, 2016** ## **JUDGMENT** Appellants are the contesting defendants in O.S.No.505 of 1997 on the file of the Munsiff's Court, Chittur. Plaintiffs are the contesting respondents. 2. Heard the learned counsel for the appellants and the respondents. 3. Relevant facts for disposal of the case are as follows: O.S.No.505 of 1997 was tried along with O.S.No.55 of 1998 by the trial court. According to the plaint averments in O.S.No.505 of 1997, the plaintiffs/respondents are the office bearers of Chathamangalam Ezhava Samudaya Sangham registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (in short, “Act of 1955”). 1[st] plaintiff society is represented by its president and 2[nd] plaintiff is the secretary of the society. Other plaintiffs are the office bearers of managing committee of the society. It is submitted by the plaintiffs that as per a decision in the general body meeting dated 31.08.1997, the plaintiffs are authorised to file the suit. 4. Plaint schedule property originally belonged to one Velukutty. 2 RSA No.199/2005 He agreed to sell the property to the 1[st] plaintiff society. Agreement to assign is Ext.A3. That is dated 04.02.1995. Subsequent to that the society was registered on 23.07.1997. The property agreed to be assigned as per Ext.A3 was later assigned in favour of the 1[st] plaintiff society as per Ext.A4 dated 02.09.1997. It is the case of the plaintiffs that subsequent to the assignment, the society owns the plaint schedule property and is in possession of the same. Defendants/appellants are the members of Chathamangalam Ezhava Community. They have right only as members of the Community. They have no other right over the plaint schedule property. Plaintiffs contended that the society constructed a building in the plaint schedule property. Defendants along with some other members of the Community formed a SNDP Branch and requested the 1[st] plaintiff society to handover possession of the plaint schedule property to them. Plaintiffs did not do that. Therefore, ill-will occured for the defendants against the plaintiffs. On 30.08.1997, the defendants along with others made an attempt to trespass into the plaint schedule property. In connection with the immovable property dispute, the Sub Divisional Magistrate passed orders under Section 145 of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”) for maintaining law and order in the locality. Therefore, it has become essential for the plaintiffs to get the relief of prohibitory injunction through a suit. 3 RSA No.199/2005 5. The contesting defendants disputed the plaintiffs' exclusive right to claim title and possession. Defendants are the office bearers of Chathamangalam Ezhava Community which consists of 127 families. It is evident from the pleadings that there is a division among the members in the Ezhava Community of that locality. It is contended that the plaintiffs along with some other members formed an association with some ulterior motives. Subsequently they tried to trespass into the property which is in the possession and enjoyment of the defendants. They approached the Sub Divisional Magistrate with unjustifiable claims and an order was passed under Section 145 Cr.P.C. directing that both the groups should not enter the property. Suppressing all these facts, the suit is filed. It is liable to be dismissed. 6. It is relevant to note that the suit was tried along with O.S.No.55 of 1998. That was a suit filed by the defendants describing themselves as Chathamangalam Ezhava Samudhayam, Nenmara Village, Chittur Taluk. Defendants in the suit were the respondents and others. It was sought in O.S.No.55 of 1998 that Ext.A4 in O.S.No.505 of 1997 executed in favour of the respondent society was null and void and also for a permanent prohibitory injunction that the respondents or their men should not interfere with the day today affairs of the Chathamangalam Ezhava Samudhayam. It is seen from the common judgment of the trial court that 4 RSA No.199/2005 O.S.No.505 of 1997 was taken as the leading case. Before the trial court three witnesses were examined on the side of the plaintiffs and six witnesses on the side of the defendants. Exts.A1 to A8 and B1 to B5 series are the documents marked on the side of the plaintiffs and defendants respectively. The trial court after considering the matters, dismissed O.S.No.55 of 1998 holding that the suit was not properly framed. O.S.No.505 of 1997 was also dismissed after considering merits of the case. 7. Thereafter the plaintiffs in O.S.No.505 of 1997, viz., the respondents herein, filed an appeal before the District Court, Palakkad. Learned Additional District Judge allowed the appeal and partly decreed O.S.No.505 of 1997. Feeling aggrieved, the defendants in that suit have preferred this second appeal. 8. Learned counsel for the appellants mainly raised two substantial questions of law. Firstly, the lower appellate court failed to take note of the fact that the plaintiffs' claim is based on a falsehood and they have not approached the court with clean hands. Therefore the discretionary relief should have been disallowed. Secondly, it is contended that the suit is hit by Section 92 of the Code of Civil Procedure, 1908 (in short, “CPC”) as no leave was obtained before institution of the suit. We shall examine these contentions separately. 5 RSA No.199/2005 9. Learned counsel for the appellants contended that the respondents have no legal reason to claim any right over the plaint schedule property. Ext.A3 is an agreement to assign executed between Velukutty on one hand and N.Ramachandran and Kesavan on the other hand. Said Ramachandran and Kesavan are described in Ext.A3 as the secretary and president of Chathamangalam Ezhava Samudhayam. According to the learned counsel for the appellants, Chathamangalam Ezhava Samudhayam acquired properties by obtaining contribution from Ezhavas residing in that locality and it partakes the character of a public charitable trust. It is further contended that Ext.A3 was executed in favour of a public charitable trust by Velukutty. The agreement was executed on 04.02.1995. My attention is drawn to the recitals in Ext.A3. It is contended by the learned counsel that the vendor received `4,500/-, which was the price fixed for the property. It is also recited in Ext.A3 that the entire consideration was received by the vendor and the office bearers of Chathamangalam Ezhava Samudhayam were put in possession of the property. Subsequently the 1[st] plaintiff society was registered and thereafter within two months, Ext.A4 sale deed was obtained in the name of the registered society. It is beyond any pale of dispute that the society formed under the Act of 1955 is a juristic person. In otherwords, the purchaser in Ext.A4 is a juristic person. Ext.A4 is dated 02.09.1997. The 6 RSA No.199/2005 executant in Ext.A3, viz., Velukutty, assigned the property in favour of the 1[st] plaintiff society for a valuable consideration. It is mentioned that the property was put in possession of the society by virtue of Ext.A3 agreement to assign. According to the learned counsel for the appellants, the property never came into the possession of the society or its office bearers as society is a distinct entity from the charitable trust to which possession had earlier handed over. Learned counsel therefore would contend that Ext.A4 does not confer any title or possession on the 1[st] plaintiff society. 10. It is an undisputed case that when there arose a breach of peace in the locality in connection with disputes relating to immovable property, the Sub Divisional Magistrate concerned took possession of the property on 30.08.1997. The respondents would contend that possession was taken from them. To establish this contention, learned counsel for the respondents relied on the testimony of DW2. Fact remains that both the parties were not in possession of the property at the time when the suits were instituted. The lower appellate court taking into consideration all these aspects moulded the decree and granted a declaration in favour of the 1[st] plaintiff society that it has title by virtue of Ext.A4. 11. Learned counsel for the appellants contended that the lower appellate court lost sight of the fact that the respondents are precluded from claiming any right in respect of the plaint schedule property as Ext.A4 7 RSA No.199/2005 was executed in collusion with the vendor therein. Whatever that be, the court below rightly observed that no challenge was made against Ext.A4 by the appellants at any point of time. It is also important to note that their suit for declaration that Ext.A4 was a null and void document was dismissed by the trial court, against which no appeal was preferred, virtually allowing the decree to become final. Applying the principles in **Premier Tyres Ltd. v. Kerala State Road Transport Corporation (1993(2) KLT 130)** it can only be held that the appellants' claim is barred by res judicata as they allowed the decree in O.S.No.55 of 1997 to become final. The ratio in the decision reads as follows: _“Where an appeal arising out of connected suit is dismissed on merits the other cannot be heard, and has to be dismissed. Where no appeal is filed, as in this case from the decree in connected suit it has the same effect of non filing of appeal against a judgment or decree. Thus the finality of finding recorded in the connected suit, due to non filing appeal precludes the Court from proceeding with appeal in other suit.”_ 12. There is no material to find that the respondents herein have waived the plea of res judicata before the lower appellate court, Therefore, the contention raised by the appellants are barred by res judicata in view of the judgment in O.S.No.55 of 1998. 8 RSA No.199/2005 13. Without taking recourse against Ext.A4 document, the appellants cannot be heard to say that it does not confer title on the respondents. It may be the case of the appellants that after agreeing to assign the property to an unregistered Sangham or rather a charitable trust, the vendor in violation of the terms in Ext.A3 assigned the same in favour of a registered society. Even if that contention of the appellants is accepted, they cannot wish away a registered document without challenging it in a manner known to law. This observation of the lower appellate court is legally sound and therefore acceptable. In the above said circumstances, I do not find any reason to hold that the plaintiffs' claim is based on inequity or on falsehood. Therefore, that contention of the appellants is rejected. 14. Learned counsel for the appellants relying on various decisions of this Court and the Supreme Court contended that the suit is hit by Section 92 CPC. Section 92 CPC reads as follows: _“_ _**Public charities.-** (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may_ 9 RSA No.199/2005 _institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subjectmatter of the trust is situate, to obtain a decree-_ _(a) removing any trustee;_ _(b) appointing a new trustee;_ _(c) vesting any property in a trustee;_ _(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;_ _(d) directing accounts and inquiries;_ _(e) declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust._ _(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;_ _(g) setling a scheme; or_ _(h) granting such further or other relief as the nature of the case may require._ _(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863) or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no suit_ 10 RSA No.199/2005 _claiming any of the reliefs specified in subsection (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section._ _(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied Cypres in one or more of the following circumstances, namely:-_ _(a) where the original purposes of the trust, in whole or in part,-_ _(i) have been, as far as may be, fulfilled; or_ _(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or_ _(b) where the original purpose of the trust provide a use for a part only of the property available by virtue of the trust; or_ _(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or_ 11 RSA No.199/2005 _(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or_ - _(e) where the original purposes, in whole or in part, have, since they were laid down,-_ _(i) been adequately provided for by other means, or_ _(ii) ceased, as being useless or harmful to the community, or_ _(iii) ceased to be, in law, charitable, or_ _(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.”_ A case which is required to be instituted under Section 92 CPC can only be instituted before a principal civil court of original jurisdiction. If this is a case which ought to have been instituted under Section 92 CPC, certainly it is not maintainable before the Court of Munsiff for the reason that it is not a principal civil court of original jurisdiction. So the question to be decided is whether the averments in the plaint and the reliefs claimed therein make it essential to institute the suit by invoking the provisions under Section 92 CPC. 15. Learned counsel for the appellants relying on the decision of 12 RSA No.199/2005 the Supreme Court in **Swami Parmatmanand Saraswati and another v. Ramji Tripathi and another (AIR 1974 SC 2141)** contended that whether a suit is to be instituted under Section 92 CPC or not shall not be decided merely looking at the prayers. The law laid down in the decision is extracted hereunder for profit: _“10. A suit under Section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92, (see Shanmukham v. Govinda, AIR 1938 Mad. 92;_ 13 RSA No.199/2005 _Tirumalai Devesthanams v Krishnayya, AIR 1943 Mad. 466 (FB); Sugra Bibi v. Hazi Kummu Mia, ((1969) 3 SCR 83 : AIR 1969 SC 884) and Mulla; Civil Procedure Code, (13th ed.) Vol. I, p. 400). A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within section 92 the court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside S. 92.”_ 16. Learned counsel for the appellants relying on the decision in **Charan Singh v. Darshan Singh (AIR 1975 SC 371)** contended that even 14 RSA No.199/2005 if the reliefs claimed in the plaint do not fall within Clauses (a) to (g) of Section 92(1) CPC, if it squarely falls within the residuary Clause (h) of the said provision, leave under Section 92 CPC should have been obtained before institution of the suit. It is true that merely the prayer in the suit is for a declaratory and other consequential reliefs, it cannot be said that it will not fall within the mischief of Section 92 CPC. It is well settled that the entire averments in the plaint and the rights alleged in the plaint will have to be considered along with the reliefs claimed in the plaint to determine that whether the suit should have been instituted under Section 92 CPC or not. In this particular case, the plaintiffs claimed as members of a society. They do not have a claim that they are members of a charitable trust propounded by the appellants. Ext.A9 is the bye-law of the 1[st] plaintiff society. Clause (v) in Ext.A9 shows the qualification for becoming a member in the society. It says that the right to get admission as a member is within the discretion of the governing body. Every person, being a member in Hindu Ezhava Community in the locality, can aspire to become a member provided his entry is approved by the general body of the society and further he pays the requisite fees. In the light of these conditions, learned counsel for the appellants contended that merely for the reason that a person belonging to the Community resides within the area of operation of the society, automatically he will not become a member of the society. It is therefore 15 RSA No.199/2005 contended that the rights of the Chathamangalam Ezhava Samudhayam have been infringed by the society and the persons in management thereof. The cardinal issue is whether the appellants/defendants could contend that the suit is hit by Section 92 CPC in the light of the fact that the respondents/plaintiffs do not claim to be members of a charitable or religious trust. According to them, they are members of a registered society, which is having a separate legal entity. Stated differently, a juristic person, called a society, is distinct from a charitable trust envisaged under Section 92 CPC, even though a same person can be a member in both. Legally speaking, they are two different entities. Case of the respondents is that the appellants are trying to meddle with the administration of the society and especially in the management of property shown in the plaint schedule. They do not deny the right of the appellants as members of Ezhava Community. Reckoning all these aspects, lower appellate court moulded the reliefs that the society is entitled to get a declaration so long as Ext.A4 document holds the field. In the absence of any challenge by the appellants against Ext.A4, the court below is legally justified in granting such a declaratory relief. Even though the respondents claimed an injunction against the appellants, it was rightly disallowed by the lower appellate court thinking that as members of the Community they have every right to get into the registered society. Viewing from any angle, I am 16 RSA No.199/2005 unable to agree with the contention of the learned counsel that the suit is hit by Section 92 CPC. Going by the averments in the plaint and reliefs claimed, coupled with the difference in the entities which the appellants and the respondents represent, I am of the view that Section 92 CPC is not applicable to this case. The lower appellate court has considered all the aspects correctly. There is no error or illegality in its judgment. Therefore, I find no reason to interfere. Substantial questions of law are decided against the appellants. Appeal is dismissed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**