Payappar
Sree Dharmasastha Temple A. Com. Vs. A.K. Joseph & Ors. [2009] INSC 1173 (7
July 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2009
(Arising out of SLP (C) No. 4993 of 2006) Payappar Sree Dharmasastha Temple A.
Com. ..Appellant Versus A.K. Josseph & Ors. .. Respondents
Dr.
Mukundakam Sharma, J.
1.
Leave granted.
2.
The present appeal is filed by the appellant herein challenging
the legality of the Judgment dated 18.05.2004 passed by the Division Bench of
the Kerala High Court dismissing not only the CMP No. 1118 of 2001 in T.D.B.
No. 38 of 1996 but also the appeal registered as A.S. No. 298 of 2002 arising
out of O.S. No. 37 of 1998.
3.
In T.D.B. No. 38 of 1996, the Travancore Devaswom Board
(hereinafter "the Board") alleged that the property, which was the
plaint schedule property in O.S. No. 37 of 1998, belong to Travancore Devaswom
Board and that said land had been illegally encroached upon and was in
occupation of the trespassers. The aforesaid suit was filed for removing the
trespassers.
4.
Earlier, the Travancore Devaswom Board had filed a suit for
evicting the trespassers (the respondents), which was registered as O.S. No. 37
of 1998. The said suit was contested by the respondents.
However,
the aforesaid suit was finally dismissed.
5.
Being aggrieved by the aforesaid order an appeal was filed by the
Board before the Kerala High Court contending, inter alia, that the plaint
scheduled property belongs to it and that the respondent no. 1 was in illegal
occupation of the same and prayed for an eviction order against respondent no.
1. As CMP No. 1118 of 2001 in T.D.B. No. 38 of 1996 was pending for
consideration before the Munsiff Court, the High Court on coming to know that
another proceeding, namely, A.S. No. 298 of 2002 is pending for consideration
for the same property in the appellate court, High Court withdrew the said
proceedings from the 2 appellate court and proceeded to decide both the matter
together. The High Court held that the trial court was justified in dismissing
the suit of the Board, particularly, in view of Exhibit B5. After recording
that the property did not belong to the Board and that it actually belong to
Respondent No. 1, it was held that the Respondent No. 1 was wrongly
dispossessed on the basis of the subsequent survey and therefore a direction
was issued to hand over the possession of the property to the Respondent No. 1.
6.
Being aggrieved by the said Judgment and Order a Special Leave
Petition No. 15250 of 2005 (CC No. 6642 of 2005) was filed before this Court by
the Board, which was, however, dismissed on the ground of inordinate delay. The
present appeal is filed by the Temple Advisory Committee against the aforesaid
Judgment of the High Court contending, inter alia, that the Board is not
interested in protecting its property and therefore the aforesaid SLP was filed
casually after expiry of the limitation period thereby allowing a large part of
immovable property which belong to the temple to go to the third party which
would adversely affect the very functioning of the temple. This Court issued
notice in the SLP as also on the application seeking for condonation of delay
and also on the application for interim relief. The matter was consequently
listed before us for final hearing upon which we heard the learned counsel
appearing for the parties.
7.
However, before we advert to the submissions made by the counsel
appearing for the respective parties, we may record a few facts leading to the
filing of the present appeal so as to enable us to effectively consider the
contentions of the parties. Payappar Sree Dharma Sastha Temple was settled with
a large track of land, which was necessary for the better management of the
temple. A Board was constituted to look after the management of the property of
the Temple - the appellant herein. The appellant is a Body duly constituted by
the Board as per the bylaws issued by the Board. Large extent of valuable
property adjoining the temple was trespassed by some people and from that, an
extent of 1.85 acres was allegedly encroached upon by the predecessor of
Respondent No. 1. When at the behest of the Temple, orders were issued to evict
the predecessor of Respondent No. 1, a suit was filed by him before the
Munsiff's court in the year 1958 praying for a decree declaring the plaintiff's
rights in the property and in the alternative for a declaration that the State
should pay the value of improvements before the eviction of the plaintiff. In
the said suit, the Board was not impleaded as a party on the ground that the
Board was in unauthorized possession of the property. A decree came to be
passed in the said suit in favour of the plaintiff therein. The Board had no
knowledge about the said decree. Even the State did not file any appeal against
the aforesaid decree passed by the trial court.
8.
In the year 1998, the Board filed a suit against Respondent No. 1
in the Munsiff Court for eviction of Respondent No. 1 from the aforesaid suit
property. However, the aforesaid suit was dismissed by the Court on the ground
that the said suit was not maintainable in view of the decree passed in the
earlier suit, which was filed by Respondent No. 1.
An appeal
was preferred by the Board from the aforesaid Judgment contending inter-alia
that the learned Munsiff failed to consider the fraud and collusion with regard
to the earlier suit filed in the year 1958 by Respondent No. 1 and that decree
in the said suit was obtained behind the back of the Board and that the Board
was completely unaware both about filing and disposal of the earlier suit. It
was also contended that the learned Munsiff failed to appreciate the purport of
Section 27 of the Travancore Cochin Hindu Religious Institutions Act, 1950
(hereinafter referred to as "1950 Act"). There was in fact a
complaint preferred by the Secretary of the Renovation Committee of the
appellant temple alleging trespass by Respondent No. 1, invoking the
supervisory powers of the High Court under the 1950 Act. The same was numbered
as TDB No. 38 of 1996. Since there were two proceedings pending, namely, TDB
No. 38 of 1996 before the High Court seeking for exercise of supervisory powers
and the appeal pending before the appellate court filed by the Board against
the Judgment of the trial court dismissing the suit, the said appeal was 5
transferred to the High Court and same was ordered to be heard along with TDB No.
38 of 1996. The aforesaid cases were taken up for hearing by the Division Bench
of the High Court. However, the aforesaid appeal as also the TDB No. 38 of 1996
were dismissed by the Division Bench of the High Court by passing a common
order, which is the subject matter of the present appeal.
9.
The record placed before us disclose that the State Government on
21.06.1929 passed an order transferring 1 acre 85 cents of land to Thomman
Kuruvilla. The said order was also placed on record as Exhibit D-4. Subsequently,
however, the State Government passed a second order dated 11.05.1931 rectifying
the position by setting aside the previous order dated 21.06.1929 transferring
1 acre 85 cents of land to Thomman Kuruvilla, which was Exhibit D-5. The second
order dated 11.05.1931 passed by the State Government was however challenged by
the plaintiff (Thomman Kuruvilla) in O.S. No. 53 of 1998 making only the State
Government a party and without making the temple authorities, namely, Payappar
Sree Dharmasastha Temple a party to the said suit. In the said suit the court
granted an injunction by which the State Government was prevented from
dispossessing predecessor of Respondent No. 1, namely, the plaintiff. The court
of Munsiff subsequently decreed the suit in favour of plaintiff i.e. the
predecessor of Respondent No. 1 on the ground that the Divan, who 6 passed
order dated 11.05.1931, namely, Exhibit D-5, had no jurisdiction to pass such
an order. The High Court which exercised a supervisory power under the 1950 Act
directed that a report be given by the Tahsildar, Meenachil Taluk, regarding
the area and other details of the property which was being held by Respondent
No. 1. On 18.09.1997, the Tahsildar, Meenachil filed a detailed report with
regard to the property before the Kerala High Court. On 24.10.1997, the High
Court passed an order directing the State Government to evict the illegal
occupants in the property. On 13.11.1997, the property was handed over the
Board after evicting the Respondent No. 1, Joseph and other trespassers and
after such eviction the Assistant Devaswom Commissioner has been in possession
of the property. On 21.11.1997, an order was passed by the Kerala High Court
referring to the memo filed by the government pleader to the effect that the trespassers
over the property in Survey No. 383/3 of Block 21 of Lalom village have been
evicted and it has been restored to Payappar Sree Dharmasastha Temple on
13.11.1997 and that the Board will carry out the necessary renovation work in
the temple without delay. In the meantime, a suit was filed by Respondent No. 1
as stated herein before the Court of Munsiff, which was registered as Suit No.
37 of 1998.
10.
The present appellant has filed the present appeal before this
Court contending that the trial court as also the High Court failed to 7
consider the documents on record and decreed the suit filed by Respondent No. 1
only on the ground that the earlier suit filed by predecessor of Respondent No.
1 was decreed in his favour but totally ignoring the fact that in the said suit
even the appellant herein or the Board were not made party, and therefore, the
said decree was neither binding nor effective against the Board and the temple
authority or property. It was also contended in the present appeal by the appellant
that the High Court has gone wrong in not adverting to crucial documents like
Exhibit A-6 and Exhibit A-7 - Revenue Register for the period from 17.08.1949
as also other relevant documents like Exhibit A- 10, which was the
Kuthakapattom Register.
11.
The Respondent No. 1, however, contested the aforesaid appeal
contending, inter alia, that the present appeal is not even maintainable as the
earlier Special Leave Petition No. 15250 of 2005 (CC No. 6642 of 2005) filed by
Board was dismissed on 20.07.2005. It was also submitted on behalf of
Respondent No. 1 that the appellant has no locus standi to prefer the present
appeal, as it is only the Advisory Committee of Payappar Sree Dharmasastha
Temple constituted by the Board as per byelaws issued by the Board. Since the
earlier SLP filed by the Board has been already dismissed therefore a body
constituted by the Board cannot maintain a separate proceeding of its own. It
was also submitted by the Respondents that the Board was plaintiff in O.S. 8
No. 37 of 1998 and also the owner, and therefore, there was no need for the
Board to implead the appellant herein as additional plaintiff. It was also
submitted that if the present appeal is entertained and allowed the effect
would be that the decree passed by the court in between the Board and the
Respondent No. 1, which has attained finality, would be nullified and the
appellant herein, who is neither an original plaintiff, nor a person impleaded
as additional plaintiff at any stage of the suit before the decree became
final, would be bestowed with a decree. It was also denied that the Respondent
No. 1 was a trespasser and that the aforesaid property was assigned in his
favour by Augustly Mathai on 21.06.1929.
12.
The said order, however, came to be superceded by a subsequent
order dated 11.05.1931. In the meantime, one Varkey Varkey purchased the said
land from the aforesaid Augusthy Mathai. The predecessor of Respondent No. 1,
namely, Thomman Kuruvilla, purchased the aforesaid property from Varkey Varkey.
It is alleged that Thomman Kuruvilla, the father of Respondent No. 1, was in
continuous occupation and possession of the land as if he was the owner. It is
only in 1957 that the State Government initiated proceedings under the Land
Conservancy Act, as LC 65 and 66 of 1957 to evict Thomman Kuruvilla from the
property. The Board never came forward with any claim at any point of time,
till 1998 when they filed O.S. No. 37 of 1998. Since 9 it was the State who
initiated eviction proceedings in LC 65 and 66 of 1957 that Thomman Kuruvilla,
father of Respondent No. 1 herein, filed the O.S. No. 53 of 1958, before the
Additional Munsiff Court, Meenachil against the action of the State, seeking a
declaration of his title over the aforementioned 1.85 acres of property and a perpetual
injunction.
It was
also contended that failure to implead the Board in that suit was under such
circumstances, as the State alone was projected as the owner and believed to be
the owner. The suit - O.S. 53 of 1958 filed by the predecessor of Respondent
No. 1 was decreed on 30.10.1959 holding that the Divan had no power to cancel
the assignment. It was also alleged that Thiruvithamkur Devaswom is a statutory
body which came into being only by Act of 1950 and before that the Government
and Devaswom was one and the same and there was no separate existence, and
therefore, whatever order was passed by the Government prior to 1950 regarding
the land in question was also binding upon the Board. It was also contended
that Section 27 of the 1950 Act does not nullify any assignment by the
Government before the Devaswom came into existence.
13.
In order to appreciate the aforesaid contentions we have also
perused the provisions of the aforesaid 1950 Act to which reference was made by
the counsel appearing for the parties before us. After coming into the force of
1950 Act the administration of temples and all their 10 properties and funds,
except the Sree Padmanabhaswami Temple got vested in the Travancore Board.
Section
27 of the Act reads as under:
"Devaswom
properties: Immovable properties entered or classed in the revenue records as
Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in
the possession or enjoyment of the Devaswom mentioned in Schedule 1 after the
30th Meenam 1097 corresponding to the 12th April, 1922 shall be dealt with as
Devaswom Properties. The provisions of the Land Conservancy Act of 1091 (IV of
1091) shall be applicable to Devaswom lands as in the case of Government
lands"
14.
It is clearly mentioned in the aforesaid provision that the
immovable properties entered or classed in the revenue records as Devaswom
property, which is in the possession or enjoyment of the Devaswom effective
from 12th April, 1922 shall be dealt with as Devaswom Properties. In the suit
filed by the Board a number of documents were placed on record, namely, Exhibit
A-6 and Exhibit A-7 - Revenue Register for the period from 17.08.1949 as also
other relevant documents like Exhibit A-10, which was the Kuthakapattom
Register, relating to the land in question but it appears from the Judgment
passed by the High Court that the High Court came to the conclusion that the
Board could not produce any document which shows that the schedule property
belong to the Board.
15.
On consideration of the contentions raised before us, we find that
the trial court as also the High Court were persuaded to dismiss the suit filed
by the Board, mainly, on the ground that the Respondent No. 1 obtained a decree
in his favour by filing a suit in 1980. But it appears to us that the said suit
was filed in the year 1958 by the Respondent No. 1 only against the State
Government. Board claims to be the owner of the suit property which was the
subject matter of the suit, and therefore, the Board was a necessary party.
Since the Board was not arrayed as a party to the suit and decree was obtained
only against the State Government, so, the said decree at the most be binding
only against the State and not against the Board. The High Court without even
considering the contentions that the Judgment in O.S. 53 of 1958 is not binding
on the Board confirmed the said Judgment of the trial court only on the ground
that there is already a decree passed in favour of Respondent No. 1 in O.S. No.
53 of 1958. But while doing so, the High Court totally ignored the earlier
Judgment passed by the same High Court and also the report of the Tahsildar
with regard to the encroachment of the temple land by the Respondent No. 1. We
do not find any discussion of the material on record regarding proceeding in
the Kerala High Court initiated in exercise of supervisory power and the report
obtained by the High Court from the Tehsildar in that regard.
12 There
is also no discussion with regard to effect and implication of the orders of
the High Court dated 24.10.1997 and dated 21.11.1997.
16.
The interpretation sought to be given by the High Court so far as
Section 27 of the 1950 Act is concerned, in our considered opinion was
incorrect and the High Court was not justified to come to the same as it
totally overlooked the fact that Section 27 stipulates immovable properties
entered or classed in the revenue records as Devaswom Vaga or Devaswom
Poramboke after 12th April 1922 would be dealt with as Devaswom Properties
whether or not the same Devaswom properties was the issue which was sought to
be resolved and adjudicated by the High Court by looking into various documents
which were placed on record. On going through the records, we find that the
High Court upheld the order of the trial court dismissing the suit filed by the
Board, mainly, on two grounds, namely, the decree passed in suit no. 53 of
1958, which according to the High Court was final and binding and on
interpretation of Section 27 of the Travancore Cochin Hindu Religious
Institution Act, 1950, which according to us was an incorrect interpretation,
particularly, in view of the fact that the findings arrived at by the High
Court that the Board could not produce evidence that it was in possession of
the property on the date in question.
17.
At this stage, we are required to deal with and also to answer the
contentions raised by the counsel appearing for Respondent No. 1 that the
present appeal itself is not maintainable as the earlier SLP filed by the Board
was dismissed on the ground of limitation and the body created by the Board
cannot maintain this appeal. It is indeed true that the Board had filed Special
Leave Petition No. 15250 of 2005 (CC No. 6642 of 2005) but the said SLP was
dismissed on the ground of limitation as the said SLP was filed by the Board
beyond the period of limitation. The appellant herein is a legal entity in view
of the fact that it was constituted by the Board as per the byelaws issued by
the Board.
While
filing the present appeal, the appellant has stated that its interest in filing
this appeal is only to protect the Board properties from the encroachers and to
see that the lands belonging to temples and religious worships are not tampered
with and also to give effective implementation to the provisions of the
Travancore Cochin Hindu Religious Institution Act, 1950, interest and purpose
of which is to protect Devaswom properties. The contention of Respondent No. 1
that the appellant has no locus standi to file the present petition also cannot
be raised and canvass at this stage in view of the decision of the Supreme
Court in Gurpreet Singh Bhullar vs. Union of India (2006) 3 SCC 758, wherein it
was held that:
"18.
This contention need not detain us any longer, because permission to file SLP
has 14 already been granted by this Court on 6-1- 2006".
18.
In the present case also we find that an order was passed by this
Court on 27.02.2006 when permission to file the SLP was granted, and therefore,
the said question of locus standi cannot be re-agitated before this Court. We
may also refer to another decision of this Court in Jasbir Singh vs. Vipin
Kumar Jaggi (2001) 8 SCC 289, wherein it was held that:
"11.
At the outset, a preliminary objection raised by Respondent 1 is dealt with.
According to Respondent 1 this appeal has been preferred from an order passed
in proceedings to which the appellant was not a party and the appellant has not
challenged the order by which his application for intervention was rejected. It
is contended that in the circumstances, the appeal preferred before us is not
maintainable. The objection, assuming that it had some force, does not survive
the order passed by this Court on 3-11-2000 granting permission to the
appellant to file the special leave petition."
19.
In Raju Ramsingh Vasave vs. Mahesh Deorao Bhivapurkr, (2008) 9 SCC
54, this Court has held as under:
"46.
We could have dismissed this application on the simple ground that the
appellant has no locus standi. We did not do so because as a constitutional
court we felt it to be our duty to lay down the law correctly so that similar
mistakes are not committed in future. Apart from the general power of the
superior courts vested in it under Article 226 or Article 32 of 15 the
Constitution of India, this Court is bestowed with a greater responsibility by
the makers of the Constitution in terms of Articles 141 and 142 of the
Constitution. Decisions are galore wherein this Court unhesitatingly exercised
such jurisdiction to resort to the creative interpretation to arrive at a just
result in regard to the societal and/or public interest.
We
thought that it is a case of that nature. We may notice that recently such a
legal principle has been considered by this Court in Indian Bank v. Godhara
Nagrik Coop. Credit Society Ltd.22 This Court, however, while laying down the
law suitably moulded the relief so as to do complete justice between the
parties."
20.
In view of the aforesaid settled legal position and also in view
of the fact that permission to file special leave petition was granted by this
Court, if we find that the order of the High Court cannot be maintained and is
required to be set aside, we would not hesitate to do so because of the locus
of the appellant to file the present appeal in this Court.
The High
Court had passed the impugned order only on the basis of the fact that earlier
decree would be binding on the appellant as also the Board and also on
interpretation given to Section 27 of the Travancore Cochin Hindu Religious
Institution Act, 1950. We have already held and recorded a finding that both
the aforesaid views taken by the High Court are incorrect and required to be
re-considered by the High Court.
21.
After considering all the relevant documents including the revenue
record we find that the High Court could not appreciated the evidence 16 on
record and those records would not be ignored by the High Court as the High
Court was exercising the jurisdiction of the 1st Appellate Court and therefore
the High Court has committed a manifest error of law apparent on the face of the
record.
22.
Therefore, we set aside the impugned Judgment and Order passed by
the High Court and remit back the matter to the High Court for fresh
consideration of all the aspects, particularly, all the evidence that exist on
the record. Since the matter is old, the High Court is requested to dispose of
the proceedings as expeditiously as possible. The impugned Judgment and order
of the High Court is set aside. Accordingly, the appeal is allowed to the
aforesaid extent.
..............................................J. (S.B. Sinha)
...............................................J.
Back
Pages: 1 2 3