Mattathibhagom Nss Karayogam ... vs C.B.Sasidharan Nair
2021 Latest Caselaw 1207 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

          THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

WEDNESDAY, THE 13TH DAY OF JANUARY 2021/23TH POUSHA, 1942

                    RSA.No.925 OF 2020

AGAINST THE JUDGMENT IN AS.No.36/2015 DATED 28-01-2020 OF
                  SUB COURT, CHERTHALA

    OS 298/2012 DATED 28-02-2015 OF ADDITIONAL MUNSIFF
                    COURT, CHERTHALA

APPELLANTS/APPELLANTS/PLAINTIFFS:
      1    MATTATHIBHAGOM NSS KARAYOGAM No.758,
           REPRESENTED BY ITS PRESIDENT,
           GOPINATHAN NAIR, AGED 70 YEARS,
           SON OF SIVARAMAN NAIR,
           USHAS, AROOKUTTY.P.O, CHERTHALA-688535,
           MATTATHIBHAGOM MURI, AROOKUTTY VILLAGE,
           CHERTHALA TALUK, ALAPPUZHA DISTRICT.

     2     THE SECRETARY,
           S.N.SUNIL,
           AGED 53 YEARS,
           SON OF LATE R.NARAYANAN NAIR,
           SREEVILASOM, VADUTHALA JETTY.P.O.,
           AROOKUTTY, CHERTHALA 688 535,
           MATTATHIBHAGOM MURI, AROOKUTTY VILLAGE,
           CHERTHALA TALUK, ALAPPUZHA DISTRICT.

     3     THE TREASURER,
           N.K.UNNIKRISHNAN NAIR,
           AGED 70 YEARS,
           SON OF LATE K.SIVARAMAN NAIR,
           UMA MANDIRAM,
           AROOKUTTY.P.O,CHERTHALA-688 535,
           MATTATHIBHAGOM MURI, AROOKUTTY VILLAGE,
           CHERTHALA TALUK, ALAPPUZHA DISTRICT.

           BY ADVS.
           SRI.B.ASHOK SHENOY
           SMT.C.G.PREETHA
           SRI.P.S.GIREESH
           SRI.RIYAL DEVASSY
 R.S.A.No.925 of 2020


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RESPONDENT/RESPONDENT/DEFENDANT:

              C.B.SASIDHARAN NAIR,
              AGED 60 YEARS,
              SON OF BHASKARAN NAIR,
              SARATH VIHAR(THEKKE CHERICHANATT),
              AROOKUTTY.P.O, CHERTHALA-688 535,
              MATTATHIBHAGOM MURI, AROOKUTTY VILLAGE,
              CHERTHALA TALUK, ALAPPUZHA DISTRICT.



     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 11-01-2021, THE COURT ON 13-01-2021 DELIVERED THE
FOLLOWING:
 R.S.A.No.925 of 2020


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                             JUDGMENT

The appellants are the plaintiffs in O.S.No.298/2012

on the file of the Additional Munsiff's Court, Cherthala

(hereinafter referred to as 'the trial court') and the

respondent in the appeal is the sole defendant in the

aforesaid suit before the trial court. The parties are

hereinafter referred to as 'plaintiffs' and 'defendant'

according to their status in the trial court unless otherwise

stated.

2. The suit is for recovery of possession of a bronze

vessel (8 idangazhi) described in the plaint schedule or

enabling the plaintiffs to recover its value thereof to the

tune of Rs.50,000/- with interest at the rate of 18% per

annum from the defendant.

3. The case of the plaintiffs in brief is that the

defendant was the treasurer of the 1 st plaintiff, namely,

Mattathibhagom NSS karayogam No.758 in its R.S.A.No.925 of 2020

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three previous Managing Committee during the tenure from

1996 to November, 2006. The defendant when took charge

of the post of Treasurer from N.K.Unnikrishnan Nair who

was the Treasurer until 1996, had taken possession of all

the movables as per the stock register. However, the

defendant did not hand over charge to Chakkittezath

Vijayan Panicker who was elected as the new Treasurer in

2006. Sri.Vijayan Panicker resigned on 31.5.2008 and the

defendant did not ready to transfer the charge to the newly

appointed Treasurer. The present office bearers took charge

on 11.10.2009 and it was found that the defendant

delivered all the properties in the stock register except the

vessel referred to above worth approximately Rs.50,000/-.

Even though the plaintiff association had demanded several

times to the defendant to give back the vessel, he did not

ready to do so. Registered notice was issued calling upon

him to return the vessel or equivalent amount of the same R.S.A.No.925 of 2020

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to the plaintiff association. However, the defendant did not

return the utensils nor did he pay the amount. Hence the

suit.

4. The defendant filed written statement inter alia

contending that the suit is barred by limitation and the

president of the association is not competent to maintain

the suit. According to the defendant, the unused utensils

have been kept in the building of NSS Karayogam situated

at the Thrichattukulam Mahadeva Temple. He contended

that no bronze vessel was transferred to the defendant

from the prior treasurer N.K.Unnikrishanan Nair and the

lock and key of the building, where utensils were kept, are

always under the custody of the secretary. The defendant

did not give charge to the subsequent treasurer Vijayan

Panicker. The subsequent treasurer elected in the general

body meeting resigned since he could not execute bond in

favour of the plaintiff Karayogam as per the law. However, R.S.A.No.925 of 2020

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during his tenure, he put signature as treasurer in the

office records of the defendant. Later, Sri.Gopinathan Nair

was appointed as the treasurer who is at present the

president of the plaintiff Karayogam. When new treasurer

was appointed, the defendant transferred charge to the

new one. It is further stated that the defendant has not

been holding charge until the present office bearers took

charge on 11.10.2009. The defendant denied that he was

in possession of the utensil at any point of time. He also

denied the alleged value of the utensil.

5. The trial court by its judgment and decree dated

28.2.2015 dismissed the suit holding that PW1, the

secretary of the plaintiff Karayogam admitted that there is

a document with respect to the taking charge from the

prior committees and the said document has not been

produced before the trial court. The trial court further held

that in the plaint the plaintiff pleaded that until 2006, the R.S.A.No.925 of 2020

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defendant was the treasurer of the plaintiff Karayogam. On

an examination of Ext.A1 copy of the stock register

(original not produced) the trial court further held that the

documents and the utensils of the plaintiff Karayogam were

kept in the building of Thrichattukulam Mahadeva Temple

whereas PW1 testified that all the utensils of the plaintiff

Karayogam were kept at the residence of the treasurer. On

analysis of the evidence, the trial court formed an opinion

that missing of so-called bronze vessel was known when

they took charge on 11.10.2009 and they could not prove

that prior to the taking of charge by the new treasurer, all

the properties including bronze vessel was in the

possession of the defendant or it was found missing during

his tenure.

6. Assailing the judgment and decree passed by the

trial court, the plaintiffs preferred A.S.No.36/2015 before

the Sub Court, Cherthala. The Sub Court after re- R.S.A.No.925 of 2020

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appreciating the pleadings and materials on record,

dismissed the appeal confirming the judgment and decree

of the trial court.

7. The concurrent findings of facts are challenged

before this Court in Second Appeal.

8. Heard Smt.C.G.Preetha, the learned counsel

appearing for the appellants.

9. The learned counsel for the appellants contended

that the plaintiffs discharged the burden of proving

defendant to have taken possession of the plaint schedule

bronze vessel through endorsement in page No.19 of

Ext.A1 register and the defendant has not discharged his

burden of proving return and hand over of the plaint

schedule vessel on cessation of office held by him to his

successor in office. The learned counsel for the appellants

further submitted that the trial court non-suited the

plaintiffs without the defendant stepping into the witness R.S.A.No.925 of 2020

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box or tendering evidence. It is further submitted that the

inaction on the part of the plaintiffs to set the law in motion

to initiate action against the defendant is not applicable in

a case where the bronze vessel was entrusted to the

defendant as a trustee for the first plaintiff Karayogam.

10. It is settled principle of law that the plaintiffs

have to succeed in the lis based on the strength of their

case and weakness of the defendant is not a ground to get

a decree in favour of the plaintiffs. Both the trial court and

the appellate court analysed the entire facts in detail and

entered a finding that the utensils of the plaintiffs were

kept in the building of Thrichattukulam Mahadeva Temple

and not at the residence of the Treasurer based on the

evidence of PW1 and Ext.A1 document. It was also

concurrently found that Ext.A2 minutes book produced

contained alterations without proper authentication. In the

evidence it was brought out that one Vijayan Panicker was R.S.A.No.925 of 2020

..10..

the treasurer during 2006-2008. After his period one

Gopinathan Nair was co-opted as treasurer of the plaintiff.

The present Managing Committee, which took charge in the

year 2009, did not take any action against the defendant.

Both the trial court and the appellate court concurrently

held that there was no evidence to prove that the plaintiff

was the treasurer from 2008 till 11.10.2009. Further, the

failure of the defendant to hand over the charge has not

been proved through documentary evidence.

11. The two courts below have concurrently arrived

at the conclusion that there is no evidence to prove that

the defendant failed to hand over possession of the subject

matter to his successor-in-office. On an appreciation of the

impugned judgments and materials on record, this Court is

of the view that there is no question of law involved in the

appeal, much less any substantial question of law. R.S.A.No.925 of 2020

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Resultantly, this R.S.A is dismissed. There will be no

order as to costs.

Sd/-

N.ANIL KUMAR, JUDGE skj