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2022 Supreme(Online)(KER) 33092
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943 RSA NO. 434 OF 2005 AGAINST THE JUDGMENT AND DECREE IN AS 194/2003 OF V ADDITIONAL DISTRICT COURT, ERNAKULAM AGAINST THE JUDGMENT AND DECREE IN OS 630/2000 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM SECOND APPELLANT/APPELLANTS/PLAINTIIFS:
1 SUNDARAN, AGED 71 YEARS, (DIED) LHS IMPLEADED S/O.LATE KANDUNNI, KALLUMADATHIL HOUSE,, RESIDING AT MARIYATHU HOUSE, THRIKKANARVATTOM DESOM, KANAYANNUR TALUK, PACHALAM, PIN-682 012.
2 RATHNAMMA, AGED 61 YEARS,(DIED)LHS IMPLEADED D/O.LATE KANDUNNI, KALLUMADATHIL HOUSE, RESIDING AT MARIYATHU HOUSE, THRIKKANARVATTOM DESOM, KANAYANNUR TALUK, PACHALAM PIN-682 012.
3 SEKHARAN, AGED 59 YEARS,(DIED)LHS IMPLEADED S/O.LATE KANDUNNI, KALLUMADATHIL HOUSE, RESIDING, AT MARIYATHU HOUSE, THRIKKANARVATTOM DESOM, KANAYANUR TALUK, PACHALAM, PIN-682 012.
4 SUSHAMA, AGED 49 YEARS W/O.LATE CHANDRA BOSE, KALLUMADATHIL HOUSE, RESIDING AT MARIYATHU HOUSE, THRIKKANARVATTOM DESOM, KANAYANNUR TALUK, PACHALAM, PIN 682 012.
5 DANISH, AGED 26 YEARS S/O.LATE CHANDRA BOSE, KALLUMADATHIL HOUSE, RESIDING AT MARIYATHU HOUSE, THRIKKANARVATTOM DESOM, KANAYANNUR TALUK, PACHALAM, PIN 682 012.
6 ASHA BOSE, AGED 23 YEARS, D/O.LATE CHANDRA BOSE, KALLUMADATHIL HOUSE,, RESIDING AT MARIYATHU HOUSE,, THRIKKANARVATTOM DESOM, KANAYANUR TALUK, PACHALAM, PIN-682 012.
7 M.V.JAYESAN, AGED 44 YEARS, S/O.LATE M.K.VELAYUDHAN, MUTHIRAPARAMBIL, KANAYANNUR TALUK, CHOTTANIKKARA P.O.
8 (ADDL.A8) M.S.SUNIL, AGED 59 YEARS, S/O.LATE M.K.SUNDARAM, KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD, PACHALAM.
9 (ADDL.A9) M.S.SANTHOSH LAL, AGED 57 YEARS, S/O.LATE M.K.SUNDARAM, KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD, PACHALAM.
10 (ADDL.A10) M.S.HARISH LAL, AGED 53 YEARS, S/O.LATE M.K.SUNDARAM, KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD, PACHALAM.
11 (ADDL.A11) M.S.RAJESH, AGED 51 YEARS, S/O.LATE M.K.SUNDARAM, KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD, PACHALAM.
12 (ADDL.A12) M.S.JEEVA, AGED 50 YEARS, D/O.LATE M.K.SUNDARAM, KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD, PACHALAM.
13 (ADDL.A13) M.S.SURESH, AGED 46 YEARS, S/O.LATE M.K.SUNDARAM, KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD, PACHALAM.
14 (ADDL.A14) M.S.GANESH AGED 59 YEARS, S/O.LATE M.K.SUNDARAM, KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD, PACHALAM.
15 (ADDL.A15) GIRIJA ROSHAN LAL, AGED 56 YEARS, W/O.LATE ROSHAN LAL, KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD, PACHALAM.
16 (ADDL.A16) KRISHNA LAL M.R., AGED 32 YEARS, S/O.LATE ROSHAN LAL, KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD, PACHALAM.
17 (ADDL.A17) KRISHNENDHU, AGED 28 YEARS, D/O.LATE ROSHAN LAL, KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD, PACHALAM (THE LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDITIONAL A8 TO 17 AS PER ORDER DATED 28.09.2021 IN IA.1/2018.)
18 (ADDL.A18) K.A.DIVAKARAN, AGED 83 YEARS, S/O.AYYAPPAN, MARIATH HOUSE, M.M.ROAD, PACHALAM.
19 (ADDL.A19) MINI DIVAKARAN, AGED 50 YEARS, D/O.K.A.DIVAKARAN, MARIATH HOUSE, M.M.ROAD, PACHALAM.
20 (ADDL.A20) BYJU DIVAKARAN, AGED 49 YEARS, S/O.K.A.DIVAKARAN, MARIATH HOUSE, M.M.ROAD, PACHALAM.
21 (ADDL.A21) MANJUNATH DIVAKARAN, AGED 46 YEARS, S/O.K.A.DIVAKARAN, MARIATH HOUSE, M.M.ROAD, PACHALAM.(THE LEGAL HEIRS OF DECEASED
2ND APPELLANT ARE IMPLEADED AS ADDITIONAL A18 TO
21 AS PER ORDER DATED 28.09.2021 IN IA.4/2018.)
22 (ADDL.A22) M.S.SAJEEV, AGED 46 YEARS, S/O.K.K.SEKHARAN, KALLUMADATHIL HOUSE, MARIATH PARAMBU, M.M.ROAD, PACHALAM (THE LEGAL HEIR OF DECEASED 3RD APPELLANT IS IMPLEADED AS ADDITIONAL APPELLANT NO.22 AS PER ORDER DATED 28.09.2021 IN IA.7/2018.)
BY ADVS.
S.SREEKUMAR (SR.)
P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA RESPONDENTS/RESPONDENTS/DEFENDANTS & 9TH PLAINTIFF:
1 kOCHI DEVASWOM BOARD (THRIPUNITHURA GROUP) NEAR POORNATHREYASAN TEMPLE, THRIPUNITHURA, REPRESENTED BY THE ASSISTANT COMMISSIONER, (TRIPUNITHURA GROUP)
TRIPUNITHURA, KANAYANNUR TALUK.
2 COCHIN DEVASOM BOARD REP. BY ITS SECRETARY.
**3 M.V.SATHEESAN SO.LATE M.K.VELAYUDHAN MUTHIRAPARAMBIL HOUSE, KANAYANNUR TALUK, CHOTTANIKKARA P.O. (DIED. LEGAL HEIRS IMPLEADED)
4 LIGY W/O.AJAYADAS AGED ABOUT 32, RESIDING AT MANIBEN, CHERTHALA.
5 (ADDL. R5) SATHYABHAMA.C, AGED 55 YEARS, W/O LATE MV SATHEESAN RESIDING AT LAKSHMI, MUTHIRAPARAMBIL (H), VATTUKUNNU, CHOTTANIKKARA P.O., ERNAKULAM
6 (ADDL.R6) SANJANA M.S, AGED 25 YEARS, D/O LATE M.V. SATHEESAN, RESIDING AT LAKSHMI, MUTHIRAPARAMBIL(H)
VATTUKUNNU, CHOTTANIKKARA P.O., ERNAKULAM
7 (ADDL.R7) SANJIN M.S. AGED 22 YEARS S/O LATE M.V.SATHEESAN RESIDING AT LAKSHMI MUTHIRAPARAMBIL(H), VATTUKUNNU, CHOTTANIKKARA P.O., ERNAKULAM (THE LEGAL HEIRS OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDITIONAL R5 TO R7 AS PER ORDER DATED 28.09.2021 IN IA NO.1/19)
BY ADVS.
SRI.KRISHNA MENON, SC, COCHIN DEVASWOM BOARD K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD N.RAGHURAJ, SC, COCHIN DEVASWOM BOARD M.RAMESH CHANDER (SR.)
SACHIN JACON AMBAT – R5 TO R7 K.GOPALAKRISHNA KURUP, SC, COCHIN DEVASWOM BOARD THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Plaintiffs 1 and 3 to 8 in O.S.No.630/2000 on the file of the II-Additional Munsiff’s Court, Ernakulam are the appellants. Defendants 1 and 2, the Cochin Devaswom Board (‘the CDB’ for short), plaintiff No.9, and the legal representatives of plaintiff No.2 are the respondents . 2. During the course of proceedings appellant Nos. 1 to 3 and respondent No.3 died. Their legal representatives were impleaded as additional appellants
8 to 22 and additional respondents 5 to 7respectively.
3. The plaintiffs instituted a suit for permanent prohibitory injunction against the CDB to restrain it and its officials from trespassing into the plaint schedule property. The plaintiffs described the plaint schedule property as 7 cents of land comprised in Sy.No.1250/7 of Nadama Village. According to the plaintiffs, they acquired title and possession over the plaint schedule property on the strength of Ext.A1 partition deed No.2653/96 of the Sub Registrar Office, Tripunithura, wherein the property was described as F Schedule.
4. The defendants resisted the suit contending that description of the plaint schedule property is incorrect and the allegations of trespass and encroachment are false. The defendant CDB further contended that the plaintiffs are attempting to trespass upon the property in the possession of the CDB. It is also contended that the suit was barred under Section 124 of the Travancore Cochin Hindu Religious Institutions Act (for short ‘ TCHRI Act’).
5. The parties went to trial. PWs 1 and 2 were examined and Exts.A1 and A2 were marked on the side of the plaintiffs. Ext.C1 was marked as court exhibit.
6. The Trial Court dismissed the suit holding that the plaintiffs failed to establish the identity of the plaint schedule property and that the suit is not maintainable in view of non-compliance of Section 124 of the TCHRI Act.
7. The plaintiffs challenged the judgment and decree of the Trial Court before the District Court, Ernakulam in A.S.No.194/2003. The First Appellate Court confirmed the judgment and decree passed by the Trial Court.
8. The plaintiffs are in appeal before this Court invoking Section 100 of the Code of Civil Procedure.
9. After hearing both sides, this Court reformulated the substantial questions of law as follows:
1. Whether the Courts below were justified in holding that the plaint schedule property is not identifiable ignoring the fact that plaint schedule property has clear and distinct boundaries as reported by the Commissioner and as per the title deed.
2. Have the courts below drawn the necessary inferences and presumptions that would apply on the facts and circumstances of the case?
3. Whether the Lower Appellate Court is justified in not exercising the jurisdiction under Order 41 Rule 27 CPC especially when ends of justice could be met by allowing commission application.
4.Whether the courts below were justified in holding that the suit is bad for want of notice under Section 124 of the Travancore-Cochin Hindu Religious Institutions Act.
10. Heard Shri. Prajith P., the learned counsel appearing for the appellants/plaintiffs and Shri. K.P.
Sudheer, the learned Standing Counsel for the CDB.
11. The case of the plaintiffs is that they are the titleholders in possession of the plaint schedule property, which they acquired by way of Ext.A1 partition deed dated 16.08.1996. The plaint schedule property is the F schedule in the partition deed. The boundaries of the plaint schedule property are described in the plaint as follows:-
“East: Property of Mundoorkottu family South: Thodu West:Public Road North: Public Road”
According to the plaintiffs, the defendant and its officials are attempting to trespass upon the plaint schedule property.
12. The challenge of the defendant CDB is that the description of the plaint schedule property is incorrect and the plaintiffs are not the owners in possession of the plaint schedule property as described in the plaint. And the property is not identifiable. The defendants specifically cont
