Payappar Sree Dharmasastha Temple Advisory Committee vs A.K. Joseph & Ors.

Payappar Sree Dharmasastha Temple A. Com. ..Appellant

Versus

A.K. Josseph & Ors. .. Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. The present appeal is filed by the appellant herein challenging the

legality of the Judgment dated 18.05.2004 passed by the Division

Bench of the Kerala High Court dismissing not only the CMP No. 1118 of 2001 in T.D.B. No. 38 of 1996 but also the appeal registered as

A.S. No. 298 of 2002 arising out of O.S. No. 37 of 1998.

3. In T.D.B. No. 38 of 1996, the Travancore Devaswom Board

(hereinafter "the Board") alleged that the property, which was the plaint

schedule property in O.S. No. 37 of 1998, belong to Travancore

Devaswom Board and that said land had been illegally encroached upon

and was in occupation of the trespassers. The aforesaid suit was filed

for removing the trespassers.

4. Earlier, the Travancore Devaswom Board had filed a suit for

evicting the trespassers (the respondents), which was registered as

O.S. No. 37 of 1998. The said suit was contested by the respondents.

However, the aforesaid suit was finally dismissed.

5. Being aggrieved by the aforesaid order an appeal was filed by the

Board before the Kerala High Court contending, inter alia, that the

plaint scheduled property belongs to it and that the respondent no. 1

was in illegal occupation of the same and prayed for an eviction order

against respondent no. 1. As CMP No. 1118 of 2001 in T.D.B. No. 38 of

1996 was pending for consideration before the Munsiff Court, the High

Court on coming to know that another proceeding, namely, A.S. No.

298 of 2002 is pending for consideration for the same property in the

appellate court, High Court withdrew the said proceedings from the

2 appellate court and proceeded to decide both the matter together. The

High Court held that the trial court was justified in dismissing the suit

of the Board, particularly, in view of Exhibit B5. After recording that

the property did not belong to the Board and that it actually belong to

Respondent No. 1, it was held that the Respondent No. 1 was wrongly

dispossessed on the basis of the subsequent survey and therefore a

direction was issued to hand over the possession of the property to the

Respondent No. 1.

6. Being aggrieved by the said Judgment and Order a Special Leave

Petition No. 15250 of 2005 (CC No. 6642 of 2005) was filed before this

Court by the Board, which was, however, dismissed on the ground of

inordinate delay. The present appeal is filed by the Temple Advisory

Committee against the aforesaid Judgment of the High Court

contending, inter alia, that the Board is not interested in protecting its

property and therefore the aforesaid SLP was filed casually after expiry

of the limitation period thereby allowing a large part of immovable

property which belong to the temple to go to the third party which

would adversely affect the very functioning of the temple. This Court

issued notice in the SLP as also on the application seeking for

condonation of delay and also on the application for interim relief. The

matter was consequently listed before us for final hearing upon which

we heard the learned counsel appearing for the parties.

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7. However, before we advert to the submissions made by the

counsel appearing for the respective parties, we may record a few facts

leading to the filing of the present appeal so as to enable us to

effectively consider the contentions of the parties. Payappar Sree

Dharma Sastha Temple was settled with a large track of land, which

was necessary for the better management of the temple. A Board was

constituted to look after the management of the property of the Temple

- the appellant herein. The appellant is a Body duly constituted by the

Board as per the bylaws issued by the Board. Large extent of valuable

property adjoining the temple was trespassed by some people and from

that, an extent of 1.85 acres was allegedly encroached upon by the

predecessor of Respondent No. 1. When at the behest of the Temple,

orders were issued to evict the predecessor of Respondent No. 1, a suit

was filed by him before the Munsiff's court in the year 1958 praying for

a decree declaring the plaintiff's rights in the property and in the

alternative for a declaration that the State should pay the value of

improvements before the eviction of the plaintiff. In the said suit, the

Board was not impleaded as a party on the ground that the Board was

in unauthorized possession of the property. A decree came to be

passed in the said suit in favour of the plaintiff therein. The Board had

no knowledge about the said decree. Even the State did not file any

appeal against the aforesaid decree passed by the trial court.

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8. In the year 1998, the Board filed a suit against Respondent No. 1

in the Munsiff Court for eviction of Respondent No. 1 from the aforesaid

suit property. However, the aforesaid suit was dismissed by the Court

on the ground that the said suit was not maintainable in view of the

decree passed in the earlier suit, which was filed by Respondent No. 1.

An appeal was preferred by the Board from the aforesaid Judgment

contending inter-alia that the learned Munsiff failed to consider the

fraud and collusion with regard to the earlier suit filed in the year 1958

by Respondent No. 1 and that decree in the said suit was obtained

behind the back of the Board and that the Board was completely

unaware both about filing and disposal of the earlier suit. It was also

contended that the learned Munsiff failed to appreciate the purport of

Section 27 of the Travancore Cochin Hindu Religious Institutions Act,

1950 (hereinafter referred to as "1950 Act"). There was in fact a

complaint preferred by the Secretary of the Renovation Committee of

the appellant temple alleging trespass by Respondent No. 1, invoking

the supervisory powers of the High Court under the 1950 Act. The

same was numbered as TDB No. 38 of 1996. Since there were two

proceedings pending, namely, TDB No. 38 of 1996 before the High

Court seeking for exercise of supervisory powers and the appeal

pending before the appellate court filed by the Board against the

Judgment of the trial court dismissing the suit, the said appeal was

5 transferred to the High Court and same was ordered to be heard along

with TDB No. 38 of 1996. The aforesaid cases were taken up for

hearing by the Division Bench of the High Court. However, the

aforesaid appeal as also the TDB No. 38 of 1996 were dismissed by the

Division Bench of the High Court by passing a common order, which is

the subject matter of the present appeal.

9. The record placed before us disclose that the State Government

on 21.06.1929 passed an order transferring 1 acre 85 cents of land to

Thomman Kuruvilla. The said order was also placed on record as

Exhibit D-4. Subsequently, however, the State Government passed a

second order dated 11.05.1931 rectifying the position by setting aside

the previous order dated 21.06.1929 transferring 1 acre 85 cents of

land to Thomman Kuruvilla, which was Exhibit D-5. The second order

dated 11.05.1931 passed by the State Government was however

challenged by the plaintiff (Thomman Kuruvilla) in O.S. No. 53 of 1998

making only the State Government a party and without making the

temple authorities, namely, Payappar Sree Dharmasastha Temple a

party to the said suit. In the said suit the court granted an injunction

by which the State Government was prevented from dispossessing

predecessor of Respondent No. 1, namely, the plaintiff. The court of

Munsiff subsequently decreed the suit in favour of plaintiff i.e. the

predecessor of Respondent No. 1 on the ground that the Divan, who

6 passed order dated 11.05.1931, namely, Exhibit D-5, had no

jurisdiction to pass such an order. The High Court which exercised a

supervisory power under the 1950 Act directed that a report be given

by the Tahsildar, Meenachil Taluk, regarding the area and other details

of the property which was being held by Respondent No. 1. On

18.09.1997, the Tahsildar, Meenachil filed a detailed report with regard

to the property before the Kerala High Court. On 24.10.1997, the High

Court passed an order directing the State Government to evict the

illegal occupants in the property. On 13.11.1997, the property was

handed over the Board after evicting the Respondent No. 1, Joseph and

other trespassers and after such eviction the Assistant Devaswom

Commissioner has been in possession of the property. On 21.11.1997,

an order was passed by the Kerala High Court referring to the memo

filed by the government pleader to the effect that the trespassers over

the property in Survey No. 383/3 of Block 21 of Lalom village have

been evicted and it has been restored to Payappar Sree Dharmasastha

Temple on 13.11.1997 and that the Board will carry out the necessary

renovation work in the temple without delay. In the meantime, a suit

was filed by Respondent No. 1 as stated herein before the Court of

Munsiff, which was registered as Suit No. 37 of 1998.

10. The present appellant has filed the present appeal before this

Court contending that the trial court as also the High Court failed to

7 consider the documents on record and decreed the suit filed by

Respondent No. 1 only on the ground that the earlier suit filed by

predecessor of Respondent No. 1 was decreed in his favour but totally

ignoring the fact that in the said suit even the appellant herein or the

Board were not made party, and therefore, the said decree was neither

binding nor effective against the Board and the temple authority or

property. It was also contended in the present appeal by the appellant

that the High Court has gone wrong in not adverting to crucial

documents like Exhibit A-6 and Exhibit A-7 - Revenue Register for the

period from 17.08.1949 as also other relevant documents like Exhibit A-

10, which was the Kuthakapattom Register.

11. The Respondent No. 1, however, contested the aforesaid appeal

contending, inter alia, that the present appeal is not even maintainable

as the earlier Special Leave Petition No. 15250 of 2005 (CC No. 6642 of

2005) filed by Board was dismissed on 20.07.2005. It was also

submitted on behalf of Respondent No. 1 that the appellant has no

locus standi to prefer the present appeal, as it is only the Advisory

Committee of Payappar Sree Dharmasastha Temple constituted by the

Board as per byelaws issued by the Board. Since the earlier SLP filed

by the Board has been already dismissed therefore a body constituted

by the Board cannot maintain a separate proceeding of its own. It was

also submitted by the Respondents that the Board was plaintiff in O.S.

8 No. 37 of 1998 and also the owner, and therefore, there was no need

for the Board to implead the appellant herein as additional plaintiff. It

was also submitted that if the present appeal is entertained and allowed

the effect would be that the decree passed by the court in between the

Board and the Respondent No. 1, which has attained finality, would be

nullified and the appellant herein, who is neither an original plaintiff, nor

a person impleaded as additional plaintiff at any stage of the suit before

the decree became final, would be bestowed with a decree. It was also

denied that the Respondent No. 1 was a trespasser and that the

aforesaid property was assigned in his favour by Augustly Mathai on

21.06.1929.

12. The said order, however, came to be superceded by a subsequent

order dated 11.05.1931. In the meantime, one Varkey Varkey

purchased the said land from the aforesaid Augusthy Mathai. The

predecessor of Respondent No. 1, namely, Thomman Kuruvilla,

purchased the aforesaid property from Varkey Varkey. It is alleged that

Thomman Kuruvilla, the father of Respondent No. 1, was in continuous

occupation and possession of the land as if he was the owner. It is only

in 1957 that the State Government initiated proceedings under the Land

Conservancy Act, as LC 65 and 66 of 1957 to evict Thomman Kuruvilla

from the property. The Board never came forward with any claim at

any point of time, till 1998 when they filed O.S. No. 37 of 1998. Since

9 it was the State who initiated eviction proceedings in LC 65 and 66 of

1957 that Thomman Kuruvilla, father of Respondent No. 1 herein, filed

the O.S. No. 53 of 1958, before the Additional Munsiff Court, Meenachil

against the action of the State, seeking a declaration of his title over

the aforementioned 1.85 acres of property and a perpetual injunction.

It was also contended that failure to implead the Board in that suit was

under such circumstances, as the State alone was projected as the

owner and believed to be the owner. The suit - O.S. 53 of 1958 filed by

the predecessor of Respondent No. 1 was decreed on 30.10.1959

holding that the Divan had no power to cancel the assignment. It was

also alleged that Thiruvithamkur Devaswom is a statutory body which

came into being only by Act of 1950 and before that the Government

and Devaswom was one and the same and there was no separate

existence, and therefore, whatever order was passed by the

Government prior to 1950 regarding the land in question was also

binding upon the Board. It was also contended that Section 27 of the

1950 Act does not nullify any assignment by the Government before the

Devaswom came into existence.

13. In order to appreciate the aforesaid contentions we have also

perused the provisions of the aforesaid 1950 Act to which reference was

made by the counsel appearing for the parties before us. After coming

into the force of 1950 Act the administration of temples and all their

10 properties and funds, except the Sree Padmanabhaswami Temple got

vested in the Travancore Board.

Section 27 of the Act reads as under:

"Devaswom properties: Immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswom mentioned in Schedule 1 after the 30th Meenam 1097 corresponding to the 12th April, 1922 shall be dealt with as Devaswom Properties. The provisions of the Land Conservancy Act of 1091 (IV of 1091) shall be applicable to Devaswom lands as in the case of Government lands"

14. It is clearly mentioned in the aforesaid provision that the

immovable properties entered or classed in the revenue records as

Devaswom property, which is in the possession or enjoyment of the

Devaswom effective from 12th April, 1922 shall be dealt with as

Devaswom Properties. In the suit filed by the Board a number of

documents were placed on record, namely, Exhibit A-6 and Exhibit A-7

- Revenue Register for the period from 17.08.1949 as also other

relevant documents like Exhibit A-10, which was the Kuthakapattom

Register, relating to the land in question but it appears from the

Judgment passed by the High Court that the High Court came to the

conclusion that the Board could not produce any document which shows

that the schedule property belong to the Board.

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15. On consideration of the contentions raised before us, we find that

the trial court as also the High Court were persuaded to dismiss the suit

filed by the Board, mainly, on the ground that the Respondent No. 1

obtained a decree in his favour by filing a suit in 1980. But it appears

to us that the said suit was filed in the year 1958 by the Respondent

No. 1 only against the State Government. Board claims to be the owner

of the suit property which was the subject matter of the suit, and

therefore, the Board was a necessary party. Since the Board was not

arrayed as a party to the suit and decree was obtained only against the

State Government, so, the said decree at the most be binding only

against the State and not against the Board. The High Court without

even considering the contentions that the Judgment in O.S. 53 of 1958

is not binding on the Board confirmed the said Judgment of the trial

court only on the ground that there is already a decree passed in favour

of Respondent No. 1 in O.S. No. 53 of 1958. But while doing so, the

High Court totally ignored the earlier Judgment passed by the same

High Court and also the report of the Tahsildar with regard to the

encroachment of the temple land by the Respondent No. 1. We do not

find any discussion of the material on record regarding proceeding in

the Kerala High Court initiated in exercise of supervisory power and the

report obtained by the High Court from the Tehsildar in that regard.

12 There is also no discussion with regard to effect and implication of the

orders of the High Court dated 24.10.1997 and dated 21.11.1997.

16. The interpretation sought to be given by the High Court so far as

Section 27 of the 1950 Act is concerned, in our considered opinion was

incorrect and the High Court was not justified to come to the same as it

totally overlooked the fact that Section 27 stipulates immovable

properties entered or classed in the revenue records as Devaswom Vaga

or Devaswom Poramboke after 12th April 1922 would be dealt with as

Devaswom Properties whether or not the same Devaswom properties

was the issue which was sought to be resolved and adjudicated by the

High Court by looking into various documents which were placed on

record. On going through the records, we find that the High Court

upheld the order of the trial court dismissing the suit filed by the Board,

mainly, on two grounds, namely, the decree passed in suit no. 53 of

1958, which according to the High Court was final and binding and on

interpretation of Section 27 of the Travancore Cochin Hindu Religious

Institution Act, 1950, which according to us was an incorrect

interpretation, particularly, in view of the fact that the findings arrived

at by the High Court that the Board could not produce evidence that it

was in possession of the property on the date in question.

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17. At this stage, we are required to deal with and also to answer the

contentions raised by the counsel appearing for Respondent No. 1 that

the present appeal itself is not maintainable as the earlier SLP filed by

the Board was dismissed on the ground of limitation and the body

created by the Board cannot maintain this appeal. It is indeed true that

the Board had filed Special Leave Petition No. 15250 of 2005 (CC No.

6642 of 2005) but the said SLP was dismissed on the ground of

limitation as the said SLP was filed by the Board beyond the period of

limitation. The appellant herein is a legal entity in view of the fact that

it was constituted by the Board as per the byelaws issued by the Board.

While filing the present appeal, the appellant has stated that its interest

in filing this appeal is only to protect the Board properties from the

encroachers and to see that the lands belonging to temples and

religious worships are not tampered with and also to give effective

implementation to the provisions of the Travancore Cochin Hindu

Religious Institution Act, 1950, interest and purpose of which is to

protect Devaswom properties. The contention of Respondent No. 1

that the appellant has no locus standi to file the present petition also

cannot be raised and canvass at this stage in view of the decision of the

Supreme Court in Gurpreet Singh Bhullar vs. Union of India

(2006) 3 SCC 758, wherein it was held that:

"18. This contention need not detain us any longer, because permission to file SLP has

14 already been granted by this Court on 6-1- 2006".

18. In the present case also we find that an order was passed by this

Court on 27.02.2006 when permission to file the SLP was granted, and

therefore, the said question of locus standi cannot be re-agitated before

this Court. We may also refer to another decision of this Court in

Jasbir Singh vs. Vipin Kumar Jaggi (2001) 8 SCC 289, wherein it

was held that:

"11. At the outset, a preliminary objection raised by Respondent 1 is dealt with. According to Respondent 1 this appeal has been preferred from an order passed in proceedings to which the appellant was not a party and the appellant has not challenged the order by which his application for intervention was rejected. It is contended that in the circumstances, the appeal preferred before us is not maintainable. The objection, assuming that it had some force, does not survive the order passed by this Court on 3-11-2000 granting permission to the appellant to file the special leave petition."

19. In Raju Ramsingh Vasave vs. Mahesh Deorao Bhivapurkr,

(2008) 9 SCC 54, this Court has held as under:

"46. We could have dismissed this application on the simple ground that the appellant has no locus standi. We did not do so because as a constitutional court we felt it to be our duty to lay down the law correctly so that similar mistakes are not committed in future. Apart from the general power of the superior courts vested in it under Article 226 or Article 32 of

15 the Constitution of India, this Court is bestowed with a greater responsibility by the makers of the Constitution in terms of Articles 141 and 142 of the Constitution. Decisions are galore wherein this Court unhesitatingly exercised such jurisdiction to resort to the creative interpretation to arrive at a just result in regard to the societal and/or public interest. We thought that it is a case of that nature. We may notice that recently such a legal principle has been considered by this Court in Indian Bank v. Godhara Nagrik Coop. Credit Society Ltd.22 This Court, however, while laying down the law suitably moulded the relief so as to do complete justice between the parties."

20. In view of the aforesaid settled legal position and also in view of

the fact that permission to file special leave petition was granted by this

Court, if we find that the order of the High Court cannot be maintained

and is required to be set aside, we would not hesitate to do so because

of the locus of the appellant to file the present appeal in this Court.

The High Court had passed the impugned order only on the basis of the

fact that earlier decree would be binding on the appellant as also the

Board and also on interpretation given to Section 27 of the Travancore

Cochin Hindu Religious Institution Act, 1950. We have already held and

recorded a finding that both the aforesaid views taken by the High Court

are incorrect and required to be re-considered by the High Court.

21. After considering all the relevant documents including the revenue

record we find that the High Court could not appreciated the evidence

16 on record and those records would not be ignored by the High Court as

the High Court was exercising the jurisdiction of the 1st Appellate Court

and therefore the High Court has committed a manifest error of law

apparent on the face of the record.

22. Therefore, we set aside the impugned Judgment and Order passed

by the High Court and remit back the matter to the High Court for fresh

consideration of all the aspects, particularly, all the evidence that exist

on the record. Since the matter is old, the High Court is requested to

dispose of the proceedings as expeditiously as possible. The impugned

Judgment and order of the High Court is set aside. Accordingly, the

appeal is allowed to the aforesaid extent.

..............................................J. (S.B. Sinha)

...............................................J. (Dr. Mukundakam Sharma)

New Delhi, July 7, 2009

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