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Judgment
Thomas P. Joseph, J.—The second appeal arises from the judgment and decree of the Munsiff''s court, Vadakara in O.S. No. 34 of 1998, confirmed by the Additional District Court, Vadakara in A.S. No. 7 of 2004. Appellants/plaintiffs sued the respondents 1 and 2/defendants 2 and 3 and the deceased first defendant for a decree for prohibitory and mandatory injunction. Prohibitory injunction was against the respondents 1 and 2 and the deceased first defendant trespassing into the suit property, cutting down trees therefrom or otherwise doing any act harmful to the said property. Mandatory injunction prayed for was to direct the deceased first defendant remove the structure put-up in the suit property in violation of the building rules, without the permit from the local authority and misusing the temple funds. It is the case of the appellants that the suit property, 1.52 acres in re-survey No. 48/8A belong in jenm to the Kolangatt Kalavankulavan Tarwad (for short, "the tarwad") of which the appellants claimed to be members. They claimed that towards the southern portion of the said property, the temple of the tarwad is situated. During 1976, a committee was formed and registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (for short ''the Act'') for the day-to-day administration and management of that temple. The said committee became defunct and then onwards the Karanavan of the tarwad used to manage the affairs of the temple. In connection with the job and for other reasons, members of the tarwad happened to be at different places. Misusing that and the incapacity of the Karnavan to administer and manage the temple, the deceased first defendant (himself a member of the tarwad) started misusing funds of the temple and under cover of construction of structures in the temple property, to cut down trees from the suit property. It is further alleged that the respondents 1 and 2 are assisting the deceased first defendant in the said acts which according to the appellants is harmful to the suit property. Hence the suit for relief as first above mentioned.
The respondents 1 and 2/defendants 2 and 3 contended that the appellants have no right, interest or possession of the suit property. The appellants are not members of the tarwad. They claimed that a committee was formed in the year, 1994 and registered under the Act for management and administration of the temple and since formation of the said committee, that committee is in possession and management of the temple property. The first respondent was the Vice President of the said committee. The second respondent is only a devotee of the temple. Respondents 1 and 2 denied that there was any act of waste committed by them or the deceased first defendant. They also denied that violating of building rules without plan and permit any structure was put-up in the temple property. The deceased first defendant also denied the allegations in the plaint.
In view of the contention raised by the respondents 1 and 2 as to the formation and registration of the committee in the year, 1994, the said committee was impleaded as additional 4th defendant (3rd respondent in this appeal). The 3rd respondent also has filed written statement raising various contentions but at the time of trial, the 3rd respondent/additional 4th defendant remained absent in the trial court.
On behalf of the appellants, PW.1 gave evidence claiming that he is the son of the appellant. He proved Exts. A1 to A16. Contesting respondents did not adduce oral evidence but were satisfied with proving Exts. B1 and B2. Ext. C1 is the report of the Advocate Commissioner. The trial court held that there is no evidence to show, either that the suit property belonged to the tarwad or that appellants are members of the said tarwad and hence, are not entitled to seek relief against the respondents. Consequently the suit was dismissed.
The appellants challenged that judgment and decree in the Additional District Court, Vadakara in A.S. No. 7 of 2004. The learned Additional District Judge found that appellants are members of the tarwad and that the suit property belonged to that tarwad but was of the view that evidence let in by the appellants do not justify their contention that they are in possession of the suit property and the temple situated thereon. Hence dismissal of the suit was confirmed. The second appeal arises from the judgment and decree of the first appellate court.
The following substantial questions of law are framed for a decision:
1) Are the courts below justified in ignoring the evidence of PW.1, Exts. A1 to A12 and absence of evidence from the side of the defendants which should have led to a different conclusion in the context of the judgment reported in Rohini Prasad and Others Vs. Kasturchand and Another, and 2000 (1) S.C.C. 4347?
2) Is the lower appellate court justified in finding that the plaintiffs re co-owners of the property ad then refusing to grant the relief based on Ext. B1, which did not indicate that the defendants had any right over the property on proof of plaintiffs'' possession, vitiating the ideal judgment situation, misreading the evidence causing miscarriage of justice in the context of the judgment reported in 2000 (1) Supreme Court Cases 434?
It is contended by the learned counsel for, the appellants that since the first appellate court has found that the suit property belong to tarwad and that appellants are members of that tarwad, it was not correct in holding that appellants as the members of the tarwad have no possession of the suit property. It is argued that documents relied on by the appellants were not properly considered by the first appellate court. According to the learned counsel, when the finding of fact regarding possession entered by the first appellate court is perverse and is against the evidence on record, it involves a substantial questions of law. The learned counsel argued that apart from proving Exts. B1 and B2, no evidence is let in by the contesting respondent to show that the committee is in possession of the suit property. It is pointed out that though a written statement was filed by the 3rd respondent, it remained absent at the time of trial. In the circumstances, it is prayed that a decree may be granted in favour of the appellants.
The learned counsel for the 3rd respondent contended that there is no averment in the plaint that, the appellants are in possession of the suit property. It is also argued that the averments in the plaint would show that the tarwad was out of possession of the said property. In the above circumstances, claim of the appellants that they are in possession of the suit property cannot be accepted. The learned counsel argued that it is an admitted fact that the committee was formed in the year, 1976 for administration of the temple and that the possession of the property was passed on to that committee but evidence of PW.1 would show that there is no record to show that the said committee had passed on possession of the suit property to the appellants or other members of the tarwad. In that view of the matter, finding of the courts below that appellants have not proved possession of the property of the tarwad does not require interference, it is argued.
Though the trial court found that there is no evidence to show that the suit property belong to the tarwad and that appellants are the members of that tarwad, that finding has been reversed by the first appellate court. Exts. A12 is the extract of adangal register concerning the suit property. It is seen that the suit property is registered in the name of the tarwad. Exts. A1 to A11 are produced by the appellants to show that the tarwad was paying revenue for the suit property. The first appellate court in paragraph 12 of its judgment, referring to Exts. A1 to A11 observed that the said recitals are concerning the property comprised in survey No. 12/28 of Cherod village while the suit property is 1.54 acres in survey No. 46/10, 11 and 12A (re-survey No. 48/8A). However, it is based on Ext. A12 that the first appellate court found that the suit property belongs to the tarwad.
I have gone through Exts. A1 to A12. In Ext. A12., the extract of adangal register, patta number of the property comprised in re-survey No. 48/8A is given as 28. On the top of Ext. A12, the number ''12'' is also given. It is seen from Exts. A1 to A.11 that the survey or re-survey number of the property referred to therein is not mentioned but the number ''12/28'' is given. From Exts. A3, A4, A5, A7 and A8, it is clear that the number ''12/28'' refer to the patta. The patta number given in Exts. A1 to A11 (12/28) corresponds to the patta number given in Ext. A12 for the property comprised in re-survey No. 48/8A. Therefore, the first appellate court was not right in observing that Exts. A1 to A11 do not pertain to the suit property.
So far as the contention that appellants are not the members of the tarwad is concerned, PW.1 has given evidence on behalf of the appellants. PW.1 claimed (it is seen that the said claim also was disputed) that he is the son of the first appellant. It has come in evidence that PW.1 had filed O.S. No. 49 of 1989 against the deceased first defendant and certain other members of the tarwad claiming that he has got tenancy right over a portion of the suit property. That suit was dismissed. Ext. A15 (Ext. B2) judgment was confirmed by the appellate court by Ext. A16, judgment. In Ext. A15, the trial court found that PW.1 (son of the fist appellant) along with the defendants in O.S. No. 49 of 1989 (the first defendant in the present suit was also a defendant in O.S. No. 49 of 1989) are members of the tarwad and hence co-owners of the property referred to in O.S. No. 49 of 1989. In view of that finding, the claim of tenancy urged by PW.1 over a portion of the suit property was rejected. It is based on Exts. A15 and A.16, judgments also that the first appellate court found that appellants are members of the tarwad and that the said appellants belong to the said tarwad which does not call for any interference.
Now that it is proved that the suit property belong to the tarwad and that appellants are the members of the tarwad, the question is whether the appellants are entitled to the reliefs prayed for? It is argued by the learned counsel that the tarwad continues to be in possession of the suit property and hence appellants are entitled to seek prohibitory/mandatory injunction on behalf of themselves and on behalf of the tarwad. On the other hand the learned counsel for the 3rd respondent would contend that there is no evidence to show that the possession of the temple property given to the committee which was formed in the year 1976 reverted to the tarwad. In support of that contention, learned counsel has placed reliance on the statement of PW.1 that the committee of 1976 had not released the suit property either to himself or to the appellants.
Ext. A13 is the bye-law of the committee which was formed and registered in the year, 1976. It is revealed from Ext. A13 that the said committee was formed by members of the tarwad and that members of the tarwad on attaining the age of 18 years and their relatives were to be members of the committee. It is further stated that the committee was to make use of the property comprised in survey No. 48/84 (obviously a mistake for survey No. 48/8A) for day-to-day administration and management of the temple. It is not disputed by either side that the committee formed in the year 1976 (of which Ext. A13 as the bye-law) became defunct.
The 3rd respondent committee, it is claimed came into existence in the year, 1994. Ext. B1 is only a certificate of registration issued by the Registrar showing that the said committee was registered as provided under the Act in the year 1994. There is no case for the contesting respondents that the 3rd respondent-committee is formed in continuation of the committee which was formed in the year 1976 and which became defunct. The 3rd respondent committee has nothing to do with the committee of 1976. I must also notice that existence of a committee like the 3rd respondent is not admitted by the appellants. PW.1 giving evidence on behalf of appellants claimed ignorance about the said committee or that the said committee was registered with the Registrar. It is not the case of the contesting respondent that the 3rd respondent-committee is formed by the members of the tarwad. In that view of the matter, I cannot say that the 3rd respondent-committee formed in the year 1994 would in any way bind the appellants or other members of the tarwad.
As aforesaid, it is not a case where the 3rd respondent-committee is formed in continuation of the committee of 1976 which became defunct. There is also no case or evidence that the 3rd respondent has taken over administration and management of the temple and its properties from the committee of 1976 which became defunct so that, it could be said that possession of the suit property, with the committee of 1976 passed on to the 3rd respondent-committee allegedly formed in the year 1994.
I must also notice that so far as the committee of 1976 is concerned, it was formed by the members of the tarwad. Therefore, possession of property if any with the committee of 1976 was by and for on behalf of members of the tarwad the committee of 1976 cannot therefore be said to have had any independent right or possession over the suit property.
In the above circumstances, evidence of PW.1 that neither he nor any of the appellants got release of the suit property from the committee of 1976 is of no consequence.
In the plaint it is averred that the suit property belong to the tarwad to which the appellants belong and that the committee was formed in the year 1976 for the day-to-day administration and management of the temple. I also referred to Ext. A13 to say that it was provided in the bye-law of the said committee that the suit property was to be used for the day-today administration and management of the temple. According to the appellants, the suit property remained with the tarwad though it was to be used for administration and management of the temple. In such a case, a further recital that the appellants are in possession of the suit property is not required. I must also notice that the prohibitory injunction prayed for by the appellants is to retrain the respondents and the deceased first defendant from trespassing into the property. Unless the appellants are the members of the tarwad in possession of the suit property, such a relief could not have been claimed. Therefore, I do not find merit in the contention that there is no specific averment in the plaint that the suit property is in the possession of the appellants.
I must also notice the further averment in the plaint that the deceased first defendant, making use of his position as a member of the governing body of the committee of 1976 which later became defunct and capitalising incapacity of the karanavan of the tarwad and the fact that the other members of the tarwad are elsewhere in connection with their job, the deceased first defendant, with the assistance of respondents 1 and 2/defendants 2 and 3 attempted to cut down trees under cover of construction of structures in the suit property. That also indicates that according the appellants, none of the respondents or the deceased first defendant had possession of the suit property.
Though the 3rd respondent claimed that it is in possession of the suit property, absolutely no evidence, either documentary or oral is adduced. I stated that Ext. B1 is only the certificate of registration which does not take the contesting respondent anywhere. Ext. B2 is the copy of judgment in O.S. No. 49 of 1989 (which is Ext. A15). There is no evidence to show that any of the respondents, not to say about the 3rd respondent is in enjoyment of the suit property.
The learned counsel for the 3rd respondent argued when it is alleged by the appellants in the plaint that respondents have made unauthorised constructions in the suit property making use of the funds of the temple, it meant that the respondents are in management and administration of the temple and in possession of its properties I find myself unable to accept that argument as well. Reason is that averments in the plaint is not as regards respondents 1 to 3 but only as against the deceased first defendant who admittedly was a member of the tarwad and hence a co-owner the suit property. The averments in the plaint are all directed against the alleged highhanded acts of the deceased first defendant, of course assisted by the respondents 1 and 2/defendants 2 and 3. That averment would not mean that the respondents and much lesser, the 3rd respondent is in possession and enjoyment of the suit property. In that view of the matter, the courts below were not right in holding that appellants as members of the tarwad have no possession of the suit property. Having regard to the evidence on record, I should find that the appellants as members of the tarwad are in possession of the suit property.
So far as the prayer for mandatory injunction is concerned, there is no evidence to show that the construction is either unauthorised or made misusing the funds of the temple. Hence the prayer for mandatory injunction cannot be allowed.
I make it clear that I have not pronounced verdict on the legality of (alleged) constitution of the 3rd respondent. The substantial questions of law framed are answered as above.
In view of my above finding, appellants are entitled to a decree for prohibitory injunction.
Resultantly,
The second appeal is allowed in part as under:
1) Judgment and decree of the Additional District Court, Vadakara in A.S. No. 7 of 2004 and of the Munsiff Court, Vadakara in O.S. No. 34 of 1998 are set aside in part to the extent it related to the decree for prohibitory injunction.
2) O.S. No. 34 of 1998 of the Munsiff''s Court, Vadakara is decreed in part as under:
a) Respondents are restrained by a decree for prohibitory injunction from trespassing into the suit property, cutting down trees, removing earth therefrom or doing any other act harmful to the said property.
b) The dismissal of the suit to the extent concerned mandatory injunction is confirmed.
3) Parties are directed to suffer their cost through out.
All pending interlocutory applications will stand dismissed.