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Judgment
Justice Thomas P. Joseph
This Second Appeal arises from the judgment and decree of learned Sub Judge, Neyyattinkara in A.S. No. 51 of 1995 reversing the decree granted by the learned First Additional Munsiff, Neyyattinkara in O.S. No. 719 of 1990. Appellant-plaintiff as referred to in the plaint is the Bible Faith Mission (for short, "the BFM") represented by its Secretary and as authorized by Ext.A2, resolution. According to the appellant, the building scheduled in the plaint bearing door No. PP7/381 situated in eight cents in Sy. No. 106/1 originally belonged to P.W. 2 and while so, as per an agreement for sale in June, 1982 appellant got possession of the said eight cents where it constructed the building. It claimed to be in possession and alleging that the original defendant attempted to trespass, filed the suit for a decree for prohibitory injunction.
Original defendant denied the allegation that there was any agreement between P.W. 2 and the appellant and that appellant constructed the building. Original defendant also denied that appellant has possession of the building. He claimed that on 23.02.1983, P.W. 2 executed Ext.B1, assignment deed in favour of Rev. P.V. Jacob who then was the President of the Church of God.
The Church of God being the owner in possession of the eight cents constructed the building. Later, the Church of God represented by Rev. P.V. Jacob executed Ext.B2, assignment deed dated 25.05.1990 in favour of the original defendant. Thus the original defendant claimed to be the owner in possession of the suit property. It is the further contention of the original defendant that there is no such institution as the BFM as it had merged with the Church of God way back in 1958.
The trial court based on the evidence concluded that appellant is in possession of the building referred to in the property and granted a decree. In appeal the original defendant produced Ext.B14, copy of judgment of this Court in A.S. No. 102 of 1984 arising from the judgment and decree in O.S. No. 356 of 1980. Based on that judgment the first appellate court accepted plea of the original defendant that the BFM has merged with the Church of God in the year 1958 and as such there is no such institution as the appellant. First appellate court also entered a finding that title over the eight cents and building belonged to the original defendant by virtue of Exts.B1 and B2. The appeal was allowed and suit was dismissed. Hence this Second Appeal. 4. The following substantial questions of law are raised for a decision.
(i) Whether the document in the nature of payment of consideration is registerable u/s 17(1)(c) of the Indian Registration Act and whether this document is covered by the principles laid down in AIR 1978 SC 147?
(ii) Whether the person in possession of the property has to prove his possession as against the defendant and whether he can file a suit for injunction restraining the strangers on the basis of his possession alone and whether the court was justified in considering the title of the property in considering the maintainability of the suit for injunction?
(iii) Whether the court is justified in holding that there is a merger of two organizations without any documents on record and if there is a merger of two organizations, whether the defendant who raised the question of merger can prove the merger of the two organizations without any documents on record?
It is contended by the Learned Counsel for the appellant that finding of the first appellate court that the BFM has merged with the Church of God is erroneous. According to the Learned Counsel Ext.B14, judgment is not sufficient to hold so. It is also argued by the Learned Counsel that at any rate, appellant is entitled to sustain the suit for injunction on the strength of its possession of the building referred to in the plaint schedule. It is argued that the first appellate court has not given proper consideration of Ext.A1 series and the documents obtained from the local Panchayath showing assessment of the building in the name of the appellant. It is further argued that the evidence of P.W. 2 is sufficient to show that there was an agreement for sale in favour of the appellant as revealed from Ext.A1 series and that Ext.B1 was got executed by fraud and misrepresentation and hence not binding on the appellant.
The Learned Counsel for the additional respondents (legal representatives of the deceased original defendant) has contended that in view of Ext.B14, judgment, conclusion irresistible is that there is no such institution as the appellant so that it could sustain the suit. It is argued by the Learned Counsel that Ext.A1 series are fabricated after amendment of the plaint referring to the alleged agreement for sale in June, 1982. It is contended that the said documents were not produced along with the plaint. Evidence of P.W. 2 in the light of Ext.B1, cannot be accepted. Appellant has no title or possession of the building referred to in the plaint schedule. It is pointed out by Learned Counsel that the original defendant has produced documents to show that the building was assessed in the name of the original defendant.
I am inclined to think that this appeal could be disposed of by answering substantial question of law (iii) raised above as it relates to the maintainability of the suit.
The original defendant has a contention that the appellant (the BFM) has merged with the Church of God and as such no such institution is in existence even as on the date of suit. It has come in evidence that there were several rounds of litigations between the appellant and the Church of God and one such litigation resulted in S.A. No. 221 of 1979. The said appeal was dismissed by this Court by Ext.B13, judgment marked in Ext.B14, judgment. In Ext.B14, in paragraph 27 referring to the previous litigation leading to the dismissal of S.A. No. 221 of 1979 it is held that even in S.A. No. 221 of 1979 this Court took the view that the BFM has merged with the Church of God. Referring to the decision in S.A. No. 221 of 1979 this Court in Ext.B14, judgment observed in paragraph 26 that, we therefore come to the conclusion that after the merger evidenced by Exts.B1, B2 and B12 and the transfer of properties under Exts.B5 and B6, the BFM does not exist as such.
Thus, it is clear from Ext.B14 that the BFM has merged with the Church of God and as claimed by the original defendant, in the year 1958. At any rate there was no such institution as the BFM (appellant) in existence at the time the suit was instituted. Needless to say that the suit is instituted by a non-existent institution. Hence for that reason the suit is to be dismissed as not maintainable.
It is seen that the first appellate court while taking the above view entered certain other findings as to title and possession claimed by the parties as regards the building in question. The first appellate court also went into the question whether Ext.A1 series could be accepted or not. I am inclined to think that in the light of the finding the first appellate court has entered that there is no properly instituted suit in that appellant- plaintiff is a non-existent institution, those findings were unnecessary. Hence those findings are vacated and left open.
Substantial question of law (iii) referred above is answered accordingly. Other questions of law raised are left open.
Resultantly Second Appeal is disposed of as under:
(i) The judgment and decree of the learned Sub Judge, Neyyattinkara in A.S. No. 51 of 1995 reversing the decree passed by the learned First Additional Munsiff, Neyyattinkara in O.S. No. 719 of 1990 and dismissing that suit is confirmed.
(ii) All findings other than existence of the appellant-plaintiff entered by the courts below are vacated.
(iii) Parties shall suffer their costs.
All pending Interlocutory Applications will stand dismissed.