The Executive Officer, Payyanur ... vs Rajeev Gandhi Memorial Cultural ...
2021 Latest Caselaw 21183 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     WEDNESDAY, THE 20th DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
                        FAO (RO) NO. 4 OF 2021
AGAINST THE JUDGMENT DATED 21.08.2018 IN AS No.167/2013 OF ADDITIONAL
                   DISTRICT COURT - II, THALASSERY
AGAINST THE JUDGMENT AND DECREE DATED 30.11.2011 IN OS No.61/2005 OF
                         SUB COURT, PAYYANNUR
APPELLANTS/RESPONDENTS No.1, 11, 12 & 13/DEFENDANTS No.1, 11,12 & 13:

     1     THE EXECUTIVE OFFICER, PAYYANUR SREE SUBRAHMANYA SWAMI
           TEMPLE, PAYYANNUR, P.O.PAYYANNUR, KANNUR-670 307.

     2     T.M.RADHAKRISHNAN THIRUMUMBU, AGED 65 YEARS,
           S/o BALAKRISHNAN THIRUMUMBU, MAHADEVAGRAMAM,
           P.O.PAYYANNUR, KANNUR-670 307.

     3     GIREESHAN THIRUMUMBU, AGED 59 YEARS,
           S/o BALAKRISHNAN THIRUMUMBU, KANDANGALI,
           P.O.PAYYANNUR, KANNUR-670 307.

     4     SANKARA NARAYANAN THIRUMUMBU, AGED 62 YEARS,
           MAHADEVA GRAMAM, P.O. PAYYANNUR, KANNUR-670 307.

           BY ADV MAHESH V RAMAKRISHNAN



RESPONDENTS/APPELLANT & RESPONDENTS 2 TO 6 & 8 TO 10/PLAINTIFF &
DEFENDANTS 2 TO 6 & 8 TO 10 (7th RESPONDENT/7th DEFENDANT DIED) :

     1     RAJEEV GANDHI MEMORIAL CULTURAL CENTRE,
           KELOTH, PAYYANNUR, REPRESENTED BY ITS PRESIDENT,
           KANNOTH KUNHIKRISHNAN NAIR @ K.N.KANNOTH,
           AGED 83 YEARS, S/o LATE T.V.RAMAN NAIR,
           RESIDING AT KELOTH, P.O.PAYYANNUR, KANNUR-670 307.

     2     K.K.RAJEEVAN, AGED 51 YEARS,
           S/o V.M.K.K.PODUVAL, RESIDING AT VELLUR,
           P.O.VELLUR, KANNUR-670 307.
 FAO (RO) No.4 of 2021                   2

      3         KARIPATH MADHAVAN, AGED 77 YEARS,
                S/o APPU PODUVAL KELOTH, P.O.PAYYANNUR, KANNUR-670 307.

      4         C.V.RAMAKRISHNAN, AGED 70 YEARS,
                ADVOCATE, P.O.PAYYANNUR, KANNUR-670 307.

      5         EDICHERRY RAMACHANDRA PODUVAL, AGED 70 YEARS,
                MAHADEVA GRAMAM, P.O.PAYYANNUR, KANNUR-670 307.

      6         P.PURUSHOTHAMAN, AGED 57 YEARS,
                S/o APPU PODUVAL, MAHADEVA GRAMAM,
                P.O.PAYYANNUR, KANNUR-670 307.

      7         ACHAMVEETTIL NARAYANA PODUVAL, AGED 65 YEARS,
                KOKKANISSERY, P.O.PAYYANNUR, KANNUR-670 307.

      8         T.K.NARAYANAN MASTER, AGED 59 YEARS,
                MAHADEVA GRAMAM, P.O.PAYYANNUR, KANNUR-670 307.

      9         K.KARUNAKARAN, AGED 65 YEARS,
                MAHADEVA GRAMAM, P.O.PAYYANNUR, KANNUR-670 307.

                BY ADV SHERLY MOL THOMAS




      THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR
HEARING    ON    20.10.2021,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 FAO (RO) No.4 of 2021                3




                                   JUDGMENT

The suit is one for injunction simplicitor without a

substantial prayer for declaration of disputed title. The

plaintiffs claim title over the property from a purchase

certificate of the year 1976 and a subsequent document

executed. It is submitted that though Devaswom property is

exempted under Section 3 of KLR Act, since the tenancy was

commenced prior to the commencement of the said Act, it is

well within the jurisdiction of Land Tribunal to issue

purchase certificate. It really requires adjudication, for

which there should be a substantial prayer in the suit for

declaration of disputed title. In the proceedings for

issuance of purchase certificate, the defendant Devaswom

was made as a respondent, which would clearly admit their

prior title and interest over the property. The competency

of the person, who represented the Devaswom in the

abovesaid proceedings, is also under challenge, for which a

simple suit for injunction cannot be maintained without a

substantial prayer for adjudicating the disputed title. The

first appellate court went wrong in going into the disputed

title in a suit for injunction simplicitor and the same

would constitute a substantial question of law. The first

appellate court is not justified in adjudicating the

disputed title in a suit for injunction simplicitor and it

would cause prejudice to the parties. But there can be an

open remand to the trial court so as to enable the parties

to amend the plaint since the litigation was started in the

year 2005, rather than referring the parties for a fresh

suit. For that purpose, the order of remand of the first

appellate court will stand set aside.

2. Yet another substantial question also came up for

consideration as to whether this court can decide the

disputed title over immovable property in a writ petition,

without the recourse of the civil court. It was submitted

that earlier in a writ O.P., this court has decided the

title of plaintiff over the property. A seven Judge Bench

of Apex Court in L. Chandra Kumar v. Union of India and

Others [1997 KHC 503 : 1997 (3) SCC 261 : 1997 (2) KLT SN

11] laid down the legal position that it is not permissible

to bypass the jurisdiction of the trial court in the matter

of adjudication of disputed title.

The appeal will stand disposed of accordingly. The

parties shall appear before the first appellate court on

10/11/2021.

Sd/-

P.SOMARAJAN JUDGE DMR/-