Kerala High Court
Thrikkulasekharapuram Kshethra ... vs Thrikkulasekharapuram Nss ... on 2 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
RSA NO. 129 OF 2021
[AGAINST THE DECREE AND JUDGMENT DTD:26.02.2020 OF THE
PRINCIPAL SUBORDINATE JUDGE, IRINJALAKUDA IN AS 159/2017
AGAINST THE DECREE AND JUDGMENT DTD.31.8.2017 IN OS 2389/2013
OF MUNSIFF COURT, KODUNGALLUR, THRISSUR]
APPELLANT/APPELLANT/PLAINTIFF:
THRIKKULASEKHARAPURAM KSHETHRA UPADESAKA SAMITHI
T.K.S PURAM DESOM, METHALA VILLAGE, KODUNGALLUR
TALUK, REP. BY IT'S PRESENT JOINT SECRETARY SUNI,
AGED 47 YEARS, KARAYATH, P.O. METHALA, KODUNGALLUR
TALUK, THRISSUR DISTRICT, PIN-680 669.
BY ADVS.
K.S.RAJESH
SRI.M.SHAJU PURUSHOTHAMAN
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 ANANDAVALLI
AGED 77 YEARS
W/O. KAVUNGAL ANADVEETTIL VIJAYAN MENON, T.K.S
PURAM DESOM, METHALA VILLAGE, KODUNGALLUR TALUK,
PIN-680 664.
2 VENUGOPALAN,
AGED 74 YEARS
S/O. CHITTADE DEVAKI, T.K.S PURAM DESOM, METHALA
VILLAGE, KODUNGALLUR TALUK, PIN-680664
3 RADHA POTHUVAL,
AGED 59 YEARS
W/O. KALACHIRATT ANADIYIL, DAMODHARA POTHUVAL,
T.K.S PURAM DESOM, METHALA VILLAGE, KODUNGALLUR
TALUK, PIN-680 664.
4 RADHA HEMACHANDRAN,
AGED 55, W/O. MUPPATHUTTYPARAMBIL, (PANJAJANYAM)
VEETTIL HEMACHANDRAN, T.K.S. PURAM DESOM, METHALA
VILLAGE, KODUNGALLUR TALUK, PIN-680 664
R.S.A.Nos. 129/2021 & 881/2020
:-2-:
5 MURALEEDHARAN,
AGED 64 YEARS
CHAKKUNGAIVEETTIL HOUSE, T.K.S. PURAM DESOM,
METHALA VILLAGE, KODUNGALLUR TALUK, PIN-680 664
6 JAYA MURALEEDHARAN,
AGED 49, W/O. ELEDATHPARAMBIL MURALEEDHARAN,
T.K.S. PURAM DESOM, METHALA VILLAGE,
KODUNGALLUR TALUK, PIN-680 664.
7 RAMADEVI @ JAYA,
AGED 50, D/O. THACHIL MARATH KOUMUDHI AMMA,
T.K.S. PURAM DESOM, METHALA VILLAGE,
KODUNGALLUR TALUK, PIN 680 664.
8 RADHA BALAN,
AGED 59 YEARS
W/O. MADHAVAMVEETTIL BALAN MENON, EAST OF CO-
OPERATIVE BANK, T.K.S PURAM DESOM, METHALA
VILLAGE, KODUGALLUR TALUK, PIN-680 664
9 NANDHAN,
AGED 64 YEARS
NADUVILAKATTIL HOUSE, ARAKKULAM KODER LANE
DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN-
680 664.
10 KANAKAM,
AGED 60 YEARS
NADUVILAKATTIL HOUSE, ARAKKULAM, KODER LANE
DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN-
680 664
11 AMBIKA,
AGED 64 YEARS
NADUVILAKATTIL HOUSE, ARAKKULAM KODER LANE
DESOM, METHALA VILLAGE, KODUNGALLUR TALUK, PIN-
680 664.
12 KANAKAMANI,
AGED 60 YEARS
NADUVILAKATTIL HOUSE, ARAKKULAM, WEST DESOM,
PADINJATT (SREEVALSAM), METHALA VILLAGE,
KODUNGALLUR TALUK, PIN-680 664
R.S.A.Nos. 129/2021 & 881/2020
:-3-:
13 GANGADEVI (BHAGYAM),
AGED 45, W/O. THACHIL MARATH VIDHYADHARAN,
CHALAKULAM DESOM, METHALA VILLAGE, KODUNGALLUR
TALUK, PIN-680 664.
14 USHA MOHAN,
AGED 49, W/O. KILIKKOTTVEETTIL MOHANAN,
KANDAMKULAM DESOM, METHALA VILLAGE, KODUNGALLUR
TALUK, PIN-680 669
15 VALSAKUMARI,
AGED 49 YEARS
W/O. VIYYATH SASI, KADUKKACHUVAD DESOM, METHALA
VILLAGE, KODUNGALLUR TALUK, PIN-680 669
BY ADVS.
SMT.N.SHOBHA
SRI.K.SHRIHARI RAO [FOR R2 & R3]
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 30.06.2021, ALONG WITH RSA.881/2020, THE
COURT ON 02.07.2021 DELIVERED THE FOLLOWING:
R.S.A.Nos. 129/2021 & 881/2020
:-4-:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 2ND DAY OF JULY, 2021 / 11TH ASHADHA, 1943
RSA NO. 881 OF 2020
[AGAINST THE DECREE AND JUDGMENT DTD:26.02.2020 OF THE
PRINCIPAL SUBORDINATE JUDGE, IRINJALAKUDA IN AS 161/2017
AGAINST THE DECREE AND JUDGMENT DTD.31.8.2017 IN OS
858/2014 OF MUNSIFF COURT, KODUNGALLUR, THRISSUR]
APPELLANTS/APPELLANTS/DEFENDANTS:
1 THRIKKULASEKHARAPURAM KSHETHRA UPADESHAKA
SAMITHI
T.K.S.PURAM DESOM,METHALA VILLAGE,
KODUNGALLUR TALUK,REPRESENTED BY ITS PRESENT
PRESIDENT SULEKHA ANIRUDHAN,
AGED 72 YEARS,W/O.ANIRUDHAN,KOTTAPPURAM.P.O,
KODUNGALLUR,THRISSUR DISTRICT,PIN-680667.
2 THRIKKKULASEKHARAPURAM KSHETHRA UPADESAKA
SAMITHI,
T.K.S.PURAM DESOM,METHALA VILLAGE,
KODUNGALLUR TALUK,REPRESENTED BY ITS
SECRETARY,M.C.GIREESH,AGED 44 YEARS,S/O
MANALLIKATTIL CHANDRAN,KADUKKACHUVAD
DESOM,METHALA VILLAGE,KODUNGALLUR TALUK,
PIN-680669.
BY ADVS.
K.S.RAJESH
SRI.M.SHAJU PURUSHOTHAMAN
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 THRIKKULASEKHARAPURAM NSS KARAYOGAM NO 2657
T.K.S.PURAM DESOM,METHALA VILLAGE,
KODUNGALLUR TALUK,REPRESENTED BY ITS PRESIDENT
ANANDHAVALLY,AGED 82,
R.S.A.Nos. 129/2021 & 881/2020
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W/O KAVUNGAL ANATT VIJAYAN MENON,
METHALA VILLAGE,KODUNGALLUR TALUK.
2 THRIKKULASEKHARAPURAM NSS KARAYOGAM NO.2657,
T.K.S.PURAM DESOM,METHALA VILLAGE,
KODUNGALLUR TALUK,REPRESENTED BY ITS SECRETARY
VENUGOPALAN,AGED 77,
S/O CHITTATT DEVAKI AMMA,
METHALA VILLAGE,KODUNGALLUR TALUK.
3 THRIKKULASEKHARAPURAM NSS KARAYOGAM NO.2657,
T.K.S.PURAM DESOM,METHALA VILLAGE,
KODUNGALLUR TALUK,REPRESENTED BY ITS
TREASURER,VENUGOPAL,AGED 59,S/O.ETTUVEEETTIL
KARTHIKEYA MENON,METHALA VILLAGE,KODUNGALLUR
TALUK,PIN-680669.
BY ADVS.
SRI.K.SHRIHARI RAO
SMT.N.SHOBHA
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 30.06.2021, ALONG WITH RSA.129/2021, THE
COURT ON 02.07.2021 DELIVERED THE FOLLOWING:
R.S.A.Nos. 129/2021 & 881/2020
:-6-:
JUDGMENT
[RSA Nos.129/2021 & 881/2020]
Common judgment and decree dated 31.8.2017 in
OS Nos.2389/2013 and 858/2014 of the Munsiff's court,
Kodungallur (hereinafter referred to for short as 'the trial court'),
which is confirmed by the Principal Subordinate Judge's Court,
Irinjalakuda (hereinafter referred to for short as 'the first
appellate court') by judgment and decree dated 26.02.2020 in
A.S.Nos.159/2017 and 161/2017 are under challenge before
this Court in the second appeal. The trial court dismissed
O.S.No. 2389/2013 and decreed O.S.No.858/2014. In OS
No.858/2014, the trial court granted a decree for recovery of
possession of the plaint schedule properties to the plaintiffs.
Further, the trial court granted a decree for permanent
prohibitory injunction restraining the defendants from
obstructing the plaintiffs in convening their meetings in the
building in the plaint schedule property and also from
obstructing the day-to-day affairs of the first plaintiff therein.
R.S.A.Nos. 129/2021 & 881/2020
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The first plaintiff in OS 858/2014 is Thrikkulasekharapuram
NSS Karayogam No.2657 (herineafter referred to as 'the
Karayogam') represented by its President. The plaintiffs 2 and
3 are its President, its Secretary and its Treasurer respectively.
The first defendant in OS No.858/2014 is
Thrikkulaskharapuram Kshethra Upadesaka Samithi
(hereinafter referred to as 'the Samithi') represented by its
President and the second defendant is its Secretary
respectively. In OS 2389/2013, the plaintiff is the Samithi,
represented by its Joint Secretary. The plaintiffs 1 and 2 in
O.S.No.858/2014 are the defendants 1 and 2 in
O.S.No.2389/2013 in their personal capacity along with
defendants 3 to 15. The said suit was filed by the Samithi for
permanent prohibitory injunction restraining the defendants
(defendants 1 and 2 are the plaintiffs in OS 858/2014) from
causing obstruction to the activities of the samithi in the plaint
schedule property or committing waste therein by way of a
decree for permanent prohibitory injunction.
R.S.A.Nos. 129/2021 & 881/2020
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2. Both suits were tried jointly by the trial court,
treating OS 858/2014 as the leading case. The entire evidence
was adduced in O.S.No.858/2014. The parties are hereinafter
referred to as plaintiffs and defendants according to their status
in OS 858/2014 unless otherwise stated.
3. During the trial of the case, PWs.1 and 2 were
examined and marked as Exts.A1 to A7 on the side of the
plaintiffs. The Commission report and rough sketch were
marked as Exts.C1 to C2(a). No oral or documentary evidence
was adduced by the defendants.
4. Challenging the judgment and decree, two first
appeals were filed before the Principal Subordinate Judge's
Court, Irinjalakuda as AS No.159/2017 and AS No.161/2017
respectively. The first appellate court dismissed both the
appeals confirming the common judgment dated 31.8.2017 of
the trial court. Feeling aggrieved, the Samithi preferred the
above Regular Second Appeals.
R.S.A.Nos. 129/2021 & 881/2020
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5. The plaint averments in OS 858/2014(lead case)
are as follows:-
The first plaintiff is the karayogam, an organisation
for the social advancement and welfare of the Nair community.
The plaint schedule property originally belonged to
Kodungallur Kovilakam. Late Rama Varma @ Godavaram
Valiyaraja of the Kodungallur Kovilakam handed over
possession of the plaint schedule property to Adv.Gangadhara
Menon, the then President of the Karayogam to commence
social activities of the karayogam and thereafter, the
Karayogam started functioning therein. An old building in the
plaint schedule property was reconstructed by the plaintiffs.
After taking possession of the plaint schedule property, the
karayogam has been in possession of the plaint schedule
property more than 50 years. The defendants unauthorisedly
encroached into the plaint schedule property under the colour
of an advisory committee and forcibly possessed the same.
Thereafter, the Samithy filed OS No.2389/2013 before the
R.S.A.Nos. 129/2021 & 881/2020
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Munsiff's Court, Kodungallur against the members of the
institution seeking permanent prohibitory injunction restraining
the members of the karayogam from entering into the building.
Hence the plaintiffs filed O.S.No.858/2014 for recovery of the
building from the defendants and also for consequential
permanent prohibitory injunction. The plaintiffs, who are
defendants 1 and 2 in O.S.No. 2389/2018, filed written
statement in the said suit raising the very same contentions as
stated above.
6. The defendants filed written statement
contending that the Karayogam has not obtained any right over
the plaint schedule property. According to them,
Thrikkulasekharapuram Sree Krishna temple is an ancient
temple having a vast extent of property of around 4 acres. The
plaint schedule property is situated on north eastern corner of
the temple property. There was a committee for looking after
the day to day affairs of the temple. The property was never
obtained by the plaintiffs as per the licence or in any other way.
R.S.A.Nos. 129/2021 & 881/2020
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The plaintiffs are trying to grab the plaint schedule property
from the defendants. There are a lot of movables used for the
temple purpose in the plaint schedule building. Some
members of the plaintiff- institution, who were members of the
temple advisory committee, encroached into the plaint schedule
property and uttered abusive words towards the members of the
committee. When the members of the plaintiff institution made
a request for allowing them to use the building in the plaint
schedule property for conducting their meetings, the defendants
raised dispute touching the powers of the temple advisory
committee. Thereupon, the temple advisory
committee(Samithi) filed OS 2389/2013 before the trial court.
Karayogam has not obtained any right over the plaint schedule
property and the building therein. Late Gangadhara Menon
was not the president of Karayogam and it was contended that
Gangadhara Menon did not get possession of the property for
and on behalf of the Karayogam. The defendants maintained
that they have been in possession of the plaint schedule
R.S.A.Nos. 129/2021 & 881/2020
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property for and on behalf of the Temple Advisory Committee.
Hence, the plaintiffs are not entitled to get any relief in the suit.
Since the plaintiffs (Karayogam) have been obstructing the
activities of the Temple Advisory Committee, the defendants
(Samithi) are entitled to get a decree for permanent injunction
restraining the plaintiffs from interfering with their possession
for which they have filed OS NO.2389/2013 before the trial
court.
7. In considering the above facts, it is evident that
the suits are in between the Karayogam and Samithi (the
Temple Advisory Committee). The plaintiffs have produced
Ext.A1 licence agreement dated 18.12.1964. Ext.A1 licence
agreement was executed by Godavarma Valiyaraja in favour of
late Gangadhara Menon. Admittedly, the plaint schedule
property originally belonged to Kodungallur Kovilakam.
Ext.A1 is dated 18.12.1964. It is an original document, more
than 30 years old. It is clear from Ext.A1 that Godavarma
Valiyaraja of Kodungallur Kovilakam handed over possession
R.S.A.Nos. 129/2021 & 881/2020
:-13-:
of the plaint schedule property to late Gangadhara Menon in
respect of the plaint schedule property. The defendants have no
case that the property was given to them by the Kodungallur
Kovilakam. Since the derivation of title was admitted by the
defendants, they had contended that the property was given to
late Gangadhara Menon by the Kovilakam. According to the
defendants, the karayogam had no right or interest in the
property. However, the defendants has no case that late
Gangadhara Menon was using the plaint schedule property for
his personal use. The plaintiffs would contend that
Gangadhara Menon was the President of the first plaintiff
institution when Ext.A1 was executed. PWs.1 and 2 adduced
evidence before this Court that Gangadhara Menon was the
President of the Karayogam on the date of execution of Ext.A1.
However, the defendants have not denied the fact that late
Gangadhara Menon was the president of first plaintiff-
Institution when Ext.A1 was executed. The defendants did not
adduce any oral or documentary evidence before the trial court.
R.S.A.Nos. 129/2021 & 881/2020
:-14-:
In the absence of reliable evidence on the part of the
defendants, both the trial court and the appellate court
considered the surrounding circumstances to ascertain the
possession of Gangadhara Menon over the plaint schedule
property. Significantly, at present, the building in the plaint
schedule property is assessed in the name of karayogam by the
local authority. Ext.A6 building tax receipt issued in the name
of the first plaintiff institution is dated 21.7.2016. The
Kodungallur Municipality issued Ext.A5 certificate on
4.6.2012 stating that the building in the plaint schedule
property was assessed in the name of karayogam from the year
1987 onwards. The Kerala State Electricity Board has issued a
certificate stating that electrical connection in the building of
the plaint schedule property is in the name of Karayogam from
1991 onwards. Plaintiffs have produced Ext.A2 registration
certificate issued by the Nair Service Society in the name of
karayogam dated 20.10.1964. Ext.A3 is the by-law of the first
plaintiff Karayogam. Based on the above evidence, both the
R.S.A.Nos. 129/2021 & 881/2020
:-15-:
trial court and the first appellate court entered into a finding
that late Gangadhara Menon obtained plaint schedule property
and the building therein for and on behalf of the Karayogam
pursuant to Ext.A1. The defendants have no case that the
licence agreement in between Kodungallur Kovilakam and
Late Gangadhara Menon was terminated and they obtained
possession of the property thereafter.
8. During the trial of the case, the plaintiffs have
filed an application to appoint a commission to ascertain the
nature, lie and boundaries of the plaint schedule property. The
commissioner filed Exts.C1 commission report and C1(a)
rough sketch. The commissioner had reported that there is an
arch in front of the building in the plaint schedule property and
in the same, there is an inscription under the name and style
'T.K.S. Puram NSS Karayogam'. The commissioner further
reported that there is a schedule on the inner wall of the plaint
schedule property stating the names of persons, who
contributed for the construction of the building. According to
R.S.A.Nos. 129/2021 & 881/2020
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the Commissioner, the photo of Mannath Padmanabhan, the
founder of NSS is found a place in the inner wall of the
aforesaid building. In considering the aforesaid facts and
circumstances, the trial court and the appellate court
concurrently held that there is merit in the allegation of the
plaintiff that the defendants encroached into the plaint schedule
property, took illegal possession of the same and instituted OS
No.2389/2013 against the members of the Karayogam on
insufficient grounds.
9. It is settled principle of law that the possession is
a good title of right against any one, who cannot show a better
title. A wrongful possessor has the right of an owner with
respect to all persons except earlier possessors and except the
true owner himself. It cannot be disputed that a person in
possession of land in the assumed character of owner and
exercising peaceably the ordinary rights of ownership has a
perfectly good title against all the world but the rightful owner.
The rightful owner does not come forward so far and assert his
R.S.A.Nos. 129/2021 & 881/2020
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title by the process of law. It has come out in evidence that the
plaint schedule property has been in the possession of
karayogam prior to the alleged trespass made by the
defendants. In Ramesh Chand Ardawatiya v. Anil Panjwani
[AIR 2003 SC 2508] the Apex Court held in paragraph 36 of
judgment as under:-
"36. So, the person in possession may not have title to the
property yet if he has been inducted into possession by the
rightful owner and is in peaceful and settled possession of such
property he is entitled in law to protect the possession until
dispossessed by due process of law by a person having a title
better than what he has. A person in possession of the property
cannot be forcibly dispossessed by another rank trespasser and
even if the latter does so, the former may be entitled to
restoration of possession, because the law respects peaceful
possession and frowns upon the person who takes the law in his
own hands."
10. In view of the legal principles cited above, the
suit for recovery of possession and consequential injunction
filed by the plaintiffs is perfectly maintainable before a civil
court. The trial court and appellate court concurrently held that
the plaintiffs are entitled to a decree seeking recovery of
possession and consequential injunction as prayed for. No
substantial questions of law are involved in this appeal. Hence,
R.S.A.Nos. 129/2021 & 881/2020
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the appeals are liable to be dismissed in limine.
Resultantly, the appeals are dismissed. No costs.
Pending applications, if any, stand disposed of.
Sd/-
N.ANIL KUMAR,
JUDGE
MBS/
