The central legal point established in the judgment is the requirement to prove ownership through kuthakapattam or the existence of a private trust in order to claim relief in a temple ownership dispute.

M.N. Krishnan, J.

This appeal is preferred against the judgment and decree of the Additional District Judge, Kottayam in A.S. No. 259/2003. The said appeal was preferred against the judgment and decree in O.S. No. 618/1995 of the Subordinate Judge's Court, Kottayam. The plaintiffs moved a suit for declaration, framing of a scheme and for permanent injunction. It is the definite case of the plaintiffs that Kalakkal temple is a private temple owned and managed by the members of the plaintiffs' family known as Kalakkal. The temple is situated in an extent of 70 cents comprised in Sy. No. 206/3 of Vaikom taluk. Since there was difficulty for the lower class of the Hindu community to visit and offer their worships to Vaikom Mahadeva Temple, it is their contention that the property described in the plaint schedule was taken on kuthakapattam by Kochupennu Karumba and thereafter it has been managed by Kochupennu Karumba and on her death, her legal representatives, who constituted, according to them, the Kalakkal family.

2. On the other hand, the defendants would contend that this temple is a subsidiary of Lord Mahadeva Temple at Vaikom and it has been under the management of Kalakkal family which is a particular unit and aid etc were given by the Devaswom and therefore neither Kochupennu Karumba nor the members of the family as alleged in the plaint are entitled to get any relief.

3. The trial court, on appreciation of the materials available before it, came to the conclusion that case of kuthakapattam is not established but granted a declaration for framing of a scheme for the future management of the temple. But it is interesting to note that such a direction was given after finding that it was a public temple.

4. In appeal the learned appellate judge reappraised the entire materials and came to the conclusion that kuthakapattam is not proved and the trust is not a private trust as contended by the plaintiffs and therefore dismissed the whole suit. It is against that decision, the plaintiffs have come up in appeal.

5. When the matter came up for admission, a learned Judge of this Court formulated questions of law as shown as D to J in the Memorandum of Appeal and gave a further direction to implead the Travancore Devaswom Board as the additional respondent. They are:

D. "Whether the Lower Appellate Court erred in finding in connection with a matter in the suit which is not considered in detail by the lower trial court?

E. Whether the Lower Appellate Court Decree is maintainable in connection with an issue which was not a subject matter in the suit before the trial court ?

F. Whether the Lower Appellate Court has any right to answer a question which was not adjudicated by the Lower Trial Court and not even framed any issue in relation with the matter in question?

G. Whether the Decree of Lower Appellate Court is applicable or maintainable to a stranger who was not a party to the suit at any point of time?

H. Whether the Lower Appellate Court can given any direction in favour of anybody to do or not to do a thing who was not a party in a suit or without hearing the other party at any state of the suit?"

6. Points:

At the outset I may like to state that it may not be possible for a civil court exercising jurisdiction under the second appellate stage to adjudicate the right of a party impleaded at the stage of the second appeal. It is true that there is a contention that the property belongs to the Travancore Devaswom. But I think for the determination of this case a finding as to whether it belongs to the Devaswom or not, really relevant for the reason that unless the plaintiffs established that they have got the property by virtue of kuthakapattam or there is a private trust in their favour as alleged, the plaintiffs are not entitled to get any relief in the suit. So, it is only on that angle the matter requires determination. It is true that question of considering the applicability of Section 92 will arise when it is found to be a pub