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CASE NO.:

Appeal (civil) 3135 of 2007

PETITIONER:

A.A. GOPALAKRISHNAN

RESPONDENT:

COCHIN DEVASWOM BOARD & ORS

DATE OF JUDGMENT: 19/07/2007

BENCH:

K. G. Balakrishnan & R V Raveendran & Dalveer Bhandari

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO 3135 OF 2007

[@ SPECIAL LEAVE PETITION (CIVIL) NO. 26712 OF 2005)]

K.G. BALAKRISHNAN, CJI

Leave granted. Application for exemption from filing O.T. is

granted.

2. An extent of 21 cents of land in Survey No.1042/2 of

Mulanthuruthy village, Kanayannur Taluk, Ernakulam District, belonged

to Karikkode Sastha and Maha Vishnu temple under the management of

Cochin Devaswom Board (’Board’ for short).

3. One T.K.Asokan filed a complaint before the High Court of Kerala

alleging that respondents 3 and 4 had encroached upon the said land, and

were in illegal possession. The complaint was registered as CDB

No.3/1996. The High Court by order dated 12.6.1997 held that the said

Sy No.1042/2 (21 cents) was part of the property of Karikkode Sastha

and Vishnu Temple and gave a direction to the Board to take possession

of the said land without delay. Respondents 3 and 4 challenged the said

order before this Court in SLP (C) No.12985/1997 contending that they

had acquired title over the said land by their long possession. This Court

disposed of the said petition by the following order dated 30.3.1998:

"In the facts and circumstances of this case, having heard learned

counsel for the parties, we do not think it is a fit case for our

interference against the impugned direction of the High Court.

The property in question should be delivered to the Devasthanam,

if has not been delivered in the meantime. But since the High

Court has given a declaration in respect of the property in a

summary proceedings, it would be open for the petitioners to

establish its title in a regularly instituted civil suit, if so advised

and in the event of such a suit is filed, the finding the High Court

will not be a bar for the civil court."

In view of the said order of this Court, the High Court closed the

complaint (CDB No.3/1996) by order dated 9.9.1998, with a direction to

the Devaswom Board to take possession of the said land, by taking police

help, if necessary.

4. Respondents 3 to 5 thereafter filed O.S.No.399/1998 on the file of

the Sub-Court, Ernakulam, against the Devaswom Board seeking

declaration of title in respect of Sy.No.1042/2 and consequential

injunction. During the pendency of the suit, they submitted a

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representation dated 6.7.2000 to the Board requesting for a settlement.

They proposed an exchange of Sy. No.1042/2 (21 cents of land which

belonged to Karikkode Devaswom) with Sy. No.1043 (30 cents of land

which was in the possession of Karikkode Devaswom, but title to which

was claimed by respondent No. 3).

5. Without even waiting for a reply for the letter proposing

settlement, respondents 3 to 5 filed a writ petition (OP No.20251/2000)

before the High Court and secured an ex parte order dated 27.7.2000

directing the Board to consider their representation and pass an order

thereon. In view of the said direction, the Board considered the

representation and passed a resolution dated 29.8.2000 agreeing to the

proposal and entered into a compromise with respondents 3 to 5 on

30.8.2000. The said compromise petition recorded a settlement that the

parties will enter into a Deed of Exchange, by which plaintiffs

(respondents 3 to 5 herein) would surrender their title and interest in

respect of 30 cents in Survey No.1043 (Resurvey No.175/5) of

Mulanthuruthy village, Kanayannur Taluk, Ernakulam District (which

was the subject matter of the Purchase Certificate No.581/76 and 586/76

dated 21.2.1976 issued by the Deputy Collector (LT) No.IV, Ernakulam)

where the three idols/vigrahas of Upadevanmar (Sri Malikappuram, Sri

Malanada and an