Gopalakrishnan Vs. Cochin Devaswom Board & Ors  Insc 747 (19 July 2007)
K. G. Balakrishnan & R V Raveendran & Dalveer Bhandari
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
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 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
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 another) were situated in
favour of the defendant (Board) and in exchange the Defendant (Board) would
surrender the right, title and interest in respect of Sy. No.1042/2 (measuring
21 cents) in favour of the plaintiffs. The Sub-court, Ernakulam decreed O.S.
No.399/1998 on 18.9.2000 in terms of the said compromise.
6. The appellant herein challenged the said compromise in writ petition
(O.P.No.19728/2001) before the High Court alleging that the settlement of the
suit was collusive and the land which was agreed to be transferred by
respondent Nos.3 to 5 by way of exchange in favour of the Devaswom Board was
the property of the Karikkode temple itself; and that to defeat the directions
by this Court and the High Court, requiring surrender of possession of Sy.
No.1042/2, the officers of Devaswom Board had colluded with respondent Nos.3 to
5 and permitted them to retain Sy. No.1042/2 illegally. The writ petition was
dismissed by holding that the Devaswom Board got possession of 30 cents of land
in exchange for 21 cents in pursuance of a settlement between the parties, and
therefore there was no case for interference. The said judgment of the High
Court is under challenge in this appeal.
7. We have heard learned counsel for the appellant and learned counsel for
the respondents. We find considerable force in the contention of the appellant
that the Devaswom Board really got nothing out of the settlement and it gave to
respondents 3 to 5 a property (Sy. No.1042/2) which belonged to the Karikkode
Temple in regard to which this Court and High Court had specifically directed
the Board to take immediate possession. Survey No.1042/2 adjoins the temple.
Survey No.1043, it is seen, is the land in front of the temple and is a part of
the temple where there are three structures housing idols/vigrahas of
Upadevadas. The fact that the said Sy.No.1043 had always been in the possession
and enjoyment of the temple, is not in dispute. The fact that Sy. No. 1043 was
never under cultivation of respondents 3 to 5 at any time, is also not
8. During the hearing the learned counsel for respondents 3 to 5 made
available a copy of an order dated 21.2.1976 passed by the Special Tehsildar,
LR No.II, Ernakulam in SMP 3458/75 to establish the alleged title to Sy.
No.1043. After perusing the said order, learned counsel for the appellant
pointed out that the said order did not refer to Sy.No.1043. He submitted that
even if it related to Sy. No.1043, it was evident that the third respondent, an
employee of the Board had apparently in collusion with some revenue officials,
got a suo motu proceedings initiated under section 72 of the Kerala Land Reforms
Act, 1963 showing third respondent as a 'cultivating tenant' under Karikkode
Devaswom, and secured an ex parte order dated 21.2.1976, sanctioning the
assignment of the land under sub-section (5) of section 72F of the said Act.
The learned counsel for appellant further submitted that the very fact that the
third respondent, an employee of the temple, has been shown to be the
'cultivating tenant' of the land in front of the temple, containing the
structures where Upadevadas are installed, in a suo moto proceedings, clearly
demonstrated collusion/fraud in securing the order dated 21.2.1976. Be that as
9. What is surprising is that when respondents 3 to 5 claimed ownership of
Survey No.1043, which was the front portion of the temple premises in the
possession of the temple (in the proposal for settlement dated 6.7.2000), the
Devaswom Board, instead of investigating and verifying as to how they could
claim ownership over temple property, strangely agreed for a settlement under
which the temple was to get Sy.No.1043 (which was a temple land already in its
possession), in exchange for giving away another temple land (Sy.No.1042/2) to
respondents 3 to 5. It is significant that the Board resolution dated 29.8.2000
agreeing for the settlement proposal clearly records that Sy.No.1043 is already
in the possession of the temple.
10. The properties of deities, temples and Devaswom Boards, require to be
protected and safeguarded by their Trustees/Archaks/ Sebaits/employees.
Instances are many where persons entrusted with the duty of managing and
safeguarding the properties of temples, deities and Devaswom Boards have
usurped and misappropriated such properties by setting up false claims of
ownership or tenancy, or adverse possession.
This is possible only with the passive or active collusion of the concerned
authorities. Such acts of 'fences eating the crops' should be dealt with
sternly. The Government, members or trustees of Boards/Trusts, and devotees
should be vigilant to prevent any such usurpation or encroachment. It is also
the duty of courts to protect and safeguard the properties of religious and
charitable institutions from wrongful claims or misappropriation.
11. Learned counsel for respondents 3 and 4 submitted that the settlement in
the suit (OS No.399/1998) was validly arrived at between them (Plaintiffs) and
the Devaswom Board (defendant), that the Devaswom Board had considered the
proposal after taking legal advice and had duly passed a resolution to settle
the suit. It is further submitted that a decree having been made in terms of
the compromise and such decree having attained finality, it cannot be
questioned, interfered or set aside at the instance of a third party in a writ
proceeding. Order 23 Rule 3 of CPC deals with compromise of suits. Rule 3A
provides that no suit shall lie to set aside a decree on the ground that the
compromise on which the decree is based was not lawful. We are of the
considered view that the bar contained in Rule 3A will not come in the way of
the High Court examining the validity of a compromise decree, when allegations
of fraud/collusion are made against a statutory authority which entered into
such compromise. While, it is true that decrees of civil courts which have
attained finality should not be interfered lightly, challenge to such
compromise decrees by an aggrieved devotee, who was not a party to the suit,
cannot be rejected, where fraud/collusion on the part of officers of a
statutory board is made out. Further, when the High Court by order dated
9.9.1998 had directed the Board to take possession of Sy. No.1042/2 immediately
from respondents 3 and 4 in CDB No.3/1996, in a complaint by another devotee,
it was improper for the Board to enter into a settlement with respondents No.2
and 3, giving up the right, title and interest in Sy. No.1042/2, without the
permission of the court which passed such order. Viewed from any angle, the
compromise decree cannot be sustained and is liable to be set aside.
12. In view of the above, we allow this appeal as follows :
(i) The compromise dated 30.8.2000 and compromise decree dated 18.9.2000 in
O.S. No.399/1998 on the file of the Sub-court, Ernakulam, are set aside.
(ii) The first respondent Board is directed to take possession of Sy.
No.1042/2 as already directed by this Court and High Court.
(iii) It is open to respondents 3 to 5 to pursue OS No.399 of 1998, if they
so desire, in which event, the Sub-Court, Ernakulam, shall dispose it in
accordance with law.
(iv) The Collector, Ernakulam is directed to hold an enquiry as to the
circumstances in which the order dated 21.2.1976 in SMP No.3458 of 1975 was
passed on the file of the Special Tahsildar, LR No.II, Ernakulam, and take
consequential remedial action.
(v) The first respondent-Board is at liberty to take action in accordance
with law in regard to Survey No.1043.
(vi) Parties to bear their respective costs.