Karumakankavu Devaswom Kshethram ... vs Venkitachalil Damodaran Nair on 29 January, 2008

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Kerala High Court

Karumakankavu Devaswom Kshethram ... vs Venkitachalil Damodaran Nair on 29 January, 2008

These two appeals arise from O.S. No. 4 of 1983 on the file of the Sub Court, Tirur. A.S. No.549 of 1991 is filed by the plaintiffs in the suit. A.S. No.557 of 1991 is filed by defendants 2 and 5 in the suit. Second defendant died subsequently and her legal representatives were impleaded.

2. Facts necessary for the disposal of the appeals are as follows: Plaintiffs, Trust Board Members of Karumankavu Devaswom Temple, had filed the suit for recovery of the suit properties on the following averments. Suit properties originally belonged to one Mongandampulath Tharawad. The Tharawad properties were partitioned as per document No.1347 of 1957. The suit properties were set apart to the Temple and included in A schedule item No.805. In the document it was provided that the seniormost male member of the family shall be Hereditary Trustee of the Temple. He was A.S. NOS. 549 & 557 OF 1991

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authorised to be in possession and management of the properties and he was directed to spent money for the affairs of the Temple. There was a specific provision in the deed prohibiting the Hereditary Trustee from alienating the properties of the Temple or handing over possession of the same to anybody so as to reduce the income. While third defendant was acting as the Trustee, the Hindu Religious and Charitable Endowment Board constituted under the Madras Hindu Religious and Charitable Endowment Act, 1951 (for short "the HR&CE Act") declared the Temple as a public Temple. The third defendant was allowed to continue as the Hereditary Trustee. He acted against the interest of the Temple. So the Deputy Commissioner, H.R. & C.E. Kozhikode, removed third defendant from Trusteeship and appointed first plaintiff as 'the fit person'. Third defendant was directed to hand over charge and properties and other assets of the Temple to the first plaintiff. Subsequently, as per order No.A2/1790/76 of the Deputy Commissioner, H.R. & C.E. dated

3.11.1976 all plaintiffs were appointed as members of Trust Board of Karumankavu Temple and they are continuing as A.S. NOS. 549 & 557 OF 1991

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such. Though third defendant was removed from trusteeship, he did not hand over the documents, properties, etc., to the members of the Trust Board. Third defendant in collusion with first defendant had obtained a purchase certificate in favour of first defendant in O.A. No.447 of 1973 from the Kondotty Land Tribunal. That certificate was fraudulently obtained and on the strength of the same, first defendant executed a sale deed in favour of second defendant. On the strength of that sale deed, second defendant and the fifth defendant, who is the husband of the second defendant, reduced the property into their possession. They sold a portion of the same to the 4th defendant. First defendant was never a tenant of the Temple properties. Third defendant, who was removed from the trusteeship, was creating documents for his personal gain. When the plaintiffs came to the know about the order of the Land Tribunal, they filed an appeal before the Appellate Authority (Land Reforms) and the same was pending. Certificate of purchase and the sale deed executed were fabricated without any legal effect and brought into existence by playing fraud on the Temple and A.S. NOS. 549 & 557 OF 1991

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hence those documents are not binding on the Temple or Temple properties. Defendants are not entitled to be in possession of the properties and the plaintiffs are entitled to get recovery of the same on the strength of title of the Temple for and on behalf of the Temple. Defendants 2 and 5 sold some portions of the suit properties to defendants 6, 7 and 8 and they are also claiming possession over some portions of the properties. Defendants 1, 4 and 5 were trying to alienate the properties to strangers and to commit waste in the properties. Hence the suit for recovery of the properties on the strength of the rights of the plaintiffs and for other reliefs.

3. Defendants 2 and 5 filed a joint written statement.

Following were the material contentions raised by them. Suit was not maintainable. Plaintiffs had no right to file the suit as framed. They were also not entitled to get the relief sought for in the plaint. Suit was filed on an experimental basis without any bona fides. Even assuming that the plaintiffs were trustees, the suit as framed is not maintainable. Suit was barred by law and the same was liable to be dismissed on A.S. NOS. 549 & 557 OF 1991

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that ground. Plaintiffs who claim to be non-hereditary trustees were seeking recovery of the suit properties on the strength of their right. Non-hereditary trustee will not acquire any right over the Temple properties. Properties originally belonged to the Mongandampulath Akathoot Thinayancheri Illam. The Illam executed a settlement deed by which the suit properties were set apart for the Temple. The income from the said properties should be spent for managing the affairs of the Temple. But the properties were never given possession to Temple and properties were actually in the possession of Illam itself. Senior most male member of Illam was the Trustee and he was looking after the affairs of the Temple. He had absolute right over the said properties. At that time there was no legal bar for assigning properties and the Temple was not a public Temple. Temple became public only on 14.7.1971. At that time third defendant was the Hereditary Trustee. Defendants 2 and 5 were unaware of the fact of removal of the third defendant and the appointment of the first plaintiff in his place as the fit person. They were also not aware of the fact that the other A.S. NOS. 549 & 557 OF 1991

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plaintiffs were declared as trust members. They had no knowledge whether third defendant had handed over the documents, properties, etc., to the Board of Trustees. Allegation that certificate of purchase in O.A. No.447 of 1983 was obtained fraudulently and collusively was denied. It was obtained validly. The averment that first defendant executed a sale deed in favour of second defendant was also denied. Fifth defendant did not get any right under the sale deed. Fourth defendant was in possession of some portion of the properties. On 10.11.1138 ME (corresponding to 24.6.1963) an oral lease was executed by the then Karanavan and Devaswom Ooralan Raman Moossad of the Illam in favour of one Kanakkazhi Vellayikkot Gopalan Nair. The rent agreed was Rs.12.50 per year. Raman Moossad had every right to create lease and nobody was entitled to question the same.

Gopalan Nair was in possession of the property as a lessee. He was in possession of other properties also under the lease deed. He assigned his leasehold right over a portion of the properties to the first defendant on 26.6.1970 for valid consideration. First defendant filed O.A. No.447 of 1973 for A.S. NOS. 549 & 557 OF 1991

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assignment of right, title and interest of the landlord in respect of the land and the same was allowed. First defendant became the absolute owner of the properties. Plaintiffs were fully aware that first defendant was absolute owner of suit properties. Original Application was allowed with due notice to all persons concerned. None of the plaintiffs entered appearance and filed objection to that application. So plaintiffs were estopped from disputing the validity of certificate of purchase. Thereafter first defendant let out a building situated in the property to 5th defendant in the year 1970 for a monthly rent of Rs.5/-. Fifth defendant and his family were residing in that building from that date onwards. On 3.8.1977, first defendant assigned his rights to second defendant for valid consideration. Thereafter she was in possession of the same as absolute owner. Raman Moossad entrusted three items of properties with Gopalan Nair. Gopalan Nair sold all the three items to first defendant. Plaintiffs did not challenge the oral lease or assignment of the lease in respect of other items. They are not entitled challenge the lease in respect of the suit properties alone. A.S. NOS. 549 & 557 OF 1991

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Second defendant sold a portion of the property to 4th defendant, 19< cents to 6th defendant, 10 cents to 7th defendant and 8 cents to 8th defendant. They were in possession of the respective plots and rest of the property was in the possession of second defendant as absolute owner. She had effected valuable improvements in the property and she had renovated the building spending more than Rs.10,000/-. She availed a loan from the Land Mortgage Bank, Kozhikode. Second defendant was unaware of the appeal filed by the plaintiffs against the order passed in O.A. No.447 of 1973. Properties were in the absolute possession of Gopalan Nair in 1963. Thereafter same was in the possession of first defendant who subsequently assigned the same in favour of second defendant. From the year 1963 onwards, second defendant and her vendors were in possession openly and without any objection from the members of the family. Even if the family had any right, the same was lost by adverse possession and limitation. If the certificate of purchase obtained was not valid then she became the lessee of the properties and plaintiffs are not entitled to evict her. She was A.S. NOS. 549 & 557 OF 1991

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a cultivating tenant entitled to fixity of tenure. If at all plaintiffs have any right, they have to approach the Land Tribunal for eviction of the tenant and they are not entitled to file a suit before a civil court for recovery of the same. Civil court has no jurisdiction to decide such an issue. So the matter should be referred to the Land Tribunal for considering the question of tenancy. The averment in the plaint that defendants tried to alienate properties to strangers was denied. The allegation that they committed waste in the properties was also denied. Plaintiffs had no right over the suit properties and they are not entitled to maintain an action. The court fee paid was insufficient. Valuation of the properties for the purpose of payment of court fee was not proper. The suit properties will fetch more than Rs.3 lakhs. Plaintiffs should be directed to take out a commission for valuing the property and they should also be directed to pay the court fee on the basis of such valuation. Plaintiffs were not entitled to get any reliefs sought for in the plaint. Initially the suit was filed before the Munsiff's court, Parappanangadi. Plaint was returned by the Munsiff finding that it had no A.S. NOS. 549 & 557 OF 1991

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jurisdiction to entertain the suit. Plaintiffs were directed to re-present the plaint within a particular time limit before the Sub Court, Tirur. But the plaint was not re-presented within the time granted by the Munsiff. Hence the suit was barred. Defendants 2 and 5 claimed that they were entitled to get the value of improvements effected by them.

4. Fourth defendant filed a separate written statement supporting the case of defendants 2 and 5. The right claimed by the plaintiffs was denied. It was contended that one acre of property lying on the western side of the suit properties were in her possession. She purchased the same on 18.8.1980 for a consideration of Rs.20,000/- from second defendant. She had effected valuable improvements in the said property. Second defendant was fully competent to alienate the properties. After purchasing the property she availed a loan from the Pulickal Zadu Unit and effected improvements. She had planted coconut saplings and other yielding trees in the properties. A pump set was also installed. There was no cause of action for filing the suit. Court fee paid on the plaint was insufficient. The plaint filed A.S. NOS. 549 & 557 OF 1991

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before the Munsiff's court, Parappanangadi by the plaintiffs was returned for re-presentation before a proper court. Plaintiffs did not re-present the plaint within the time fixed by the court and hence the suit was barred. She claimed the value of improvements effected by her.

5. Defendants 6 and 7 filed a joint written statement supporting the claim of defendants 2 and 5. Sixth defendant claimed title over 19< cents of land and 7th defendant claimed title over 10 cents of land. They purchased the property on 12.11.1980 and 12.1.1981 respectively. It was contended that they were entitled to get all legal benefits.

They had effected valuable improvements. Assignment in their favour was valid and legal. Since plaint was not re- presented within the time allowed, the suit was barred. They were entitled to get value of improvements.

6. Trial court found that defendants were not entitled to claim fixity of tenure. It found that the plaintiffs were entitled to recovery of suit properties on the strength of title from the defendants on behalf of Karumankavu Temple. It was also found that defendants 2 and 4 to 8 were in possession A.S. NOS. 549 & 557 OF 1991

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of properties for a long time and they had effected improvements. It was held that they were entitled to get the value of improvements. Challenging that part of the decree by which the plaintiffs were allowed to recover the suit properties, defendants have filed A.S. No.557 of 1991. Aggrieved by that part of the decree by which the court below allowed defendants 2 and 4 to 8 to recover value of improvements and value of the building constructed, plaintiffs have filed A.S. No.549 of 1991. Since both the appeals arise from the same decree and judgment, these appeals were consolidated and are disposed of by this common judgment. The parties will be referred to as arrayed in the court below for the sake of convenience.

7. Learned counsel appearing for the plaintiffs argued that the trial court granted recovery of the properties as it found that the defendants are rank trespassers. It is argued that possession of trespasser, however long it be, will not cloth him a right to claim value of improvements. Learned counsel appearing for defendants 2 and 5, who are the appellants in A.S.No.557 of 1991, has raised the following A.S. NOS. 549 & 557 OF 1991

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arguments: Even if the court finds that the certificate of purchase issued in O.A.No.447 of 1973 was not valid, tenancy right of the second defendant will revive and she is a cultivating tenant entitled to fixity of tenure. The suit as framed was not maintainable. Plaintiffs ought to have filed the suit under Section 92 of the Code of Civil Procedure. The suit was bared under Sections 35, 87 and 93 of the HR &CE Act. The suit was originally filed before the Munsiff's court, Parappanangadi. The plaint was returned for re-presentation before the Sub Court, Tirur finding that Munsiff's court had no jurisdiction to try the suit. But suit was not re-presented within the time granted by the Munsiff's court and as such the suit was barred. Plaintiffs admitted that properties belonged to Deity and a Trust was created for looking after the affairs of the Temple and managing the properties. No Manager was elected and the members of the Trust Board as such have no right to maintain an action for recovery. There is an unequivocal admission by the plaintiffs that suit properties belonged to Deity, but Deity was not impleaded as a plaintiff. Plaintiffs sought relief of recovery on the strength of their A.S. NOS. 549 & 557 OF 1991

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title and not on the ground that Deity was the owner of the property. If properties are delivered to plaintiffs they will mismanage the same. The very same plaintiffs had filed suits against others alleging that they had trespassed upon properties belonging to the Temple. Subsequently, they colluded with those persons and compromised the suits.

8. I shall first deal with the appeal filed by the defendants. Plaintiffs are members of the Trust Board of Karumankavu Temple appointed by the Deputy Commissioner, H.R. & C.E., Kozhikode as per his order dated 3.11.1976. Evidence adduced in this case shows that suit properties originally belonged to Mongandampulath Akathoot Thinayancheri Illam, a Namboodiri Family. Senior most male member of the family was the Karanavan. The suit properties were set apart for the Karumankavu Temple by the family in the year 1957 under Exhibit A1 document. Exhibit A1 provides that the senior most male member of the family should manage the properties. He had no right to alienate the properties. He was given power to take income from the properties and manage the affairs of the Temple. According A.S. NOS. 549 & 557 OF 1991

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to the defendants the senior most male member had every right to alienate the properties because at that time it was a private Temple. The Temple was declared as public Temple with effect from 14.7.1971 and third defendant was appointed as the Hereditary Trustee. Exhibit A3 is the order dated 14.7.1971 passed by the Deputy Commissioner, H.R. & C.E., Kozhikode, declaring the Temple as a public Temple. The Deputy Commissioner as per Exhibit A5 order dated 14.2.1972 removed the third respondent from the post of Hereditary Trustee and appointed the first plaintiff as the fit person. The third defendant was directed to hand over charge of the Temple, documents, properties, etc., to the first plaintiff.

The Assistant Commissioner, H.R. & C.E., by order dated 3.11.1976 appointed the plaintiffs as members of the Trust with effect from 3.11.1976. They were directed to elect a Chairman, as per Exhibit A14. Exhibit A16 is the Scheme framed by the Deputy Commissioner, H.R. & C.E. (Admn), Kozhikode. Clause No.3 of the Scheme provides that within three months from the date of framing of the Scheme the members should elect one among them as the Chairman. A.S. NOS. 549 & 557 OF 1991

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Clause 4 of the Scheme provides that the Managing Trustee shall appoint a Manager. That clause was subsequently deleted and Chairman of the trust board was directed to perform the office of the Manager as could be seen from Exhibit A17. In this case plaintiffs did not elect one among them as Chairman. The mere fact that the plaintiffs did not elect one among them as Managing Trustee or Chairman is not a ground to dismiss the suit. All the members of the Committee had joined as plaintiffs and filed the suit. So there is no merit in the contention that since the Chairman/Managing Trustee has not joined as a plaintiff, the suit is not maintainable.

9. Learned counsel for the defendants has strenuously argued before me that plaintiffs had admitted that the properties belonged to a public Trust and as such the suit ought to have been filed as contemplated under Section 92 CPC. It is argued that plaintiffs had admitted that suit properties were in the possession of the third defendant, who was the Hereditary Trustee.

10. Section 92(1) CPC provides that a suit can be A.S. NOS. 549 & 557 OF 1991

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instituted for directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property either by the Advocate General or by two or more persons having an interest in the trust only after obtaining leave from the court. Going by the pleadings and reliefs sought for in the pliant, this is a case instituted by the trust for recovery of the trust properties from the possession of trespassers. It is to be noted that the case put forward by the defendants was that one Gopalan Nair was put in possession of the suit properties under a lease in the year 1963, long prior to the declaration of the Temple as public Temple. He assigned the same in favour of the first defendant, who in turn assigned the same to second defendant. The first defendant filed O.A. No.447 of 1973 before the Kondotty Land Tribunal and the Land Tribunal found that he was a cultivating tenant entitled to fixity of tenure. A certificate of purchase was issued. First defendant, claiming to be the absolute owner, sold the properties to the second defendant. Second defendant sold A.S. NOS. 549 & 557 OF 1991

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one acre to the 4th defendant, 19< cents to the 6th defendant, 10 cents to the 7th defendant and 8 cents to the 8th defendant.

Defendants 1, 2, 4 and 6 to 8 did not claim any right under the third defendant, who was the removed Hereditary Trustee. On the other hand, they set up independent title. So this is not a case in which recovery is to be effected from a removed trustee or persons claiming under him. It is true that the second defendant is the daughter of the third defendant and the 5th respondent is her husband. But, that will not make the suit one under Section 92 CPC. So there is no merit in the contention raised by the defendants that the suit ought to have been filed under Section 92 CPC.

11. The next contention raised is that the suit is barred under Section 87 of the HR&CE Act. It is argued that plaintiffs seek recovery of properties from the third defendant who was also a trustee. It is argued that the averments in the plaint will show that the case of the plaintiffs was that the third defendant had created some documents fraudulently in favour of first defendant in order to prevent handing over of possession of the properties to the A.S. NOS. 549 & 557 OF 1991

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trustee board and as such the suit ought to have been filed after obtaining permission from the H.R. & C.E. Board. Section 87 under Chapter X of the HR&CE Act deals with putting a trustee or Executive Officer in possession of the property. Section 93 of the HR&CE Act expressly bars a civil suit when there is specific provision. Section 35 of the HR&CE Act also contain specific provisions to that effect.

12. I shall first consider the argument based on Section

35. Section 35 deals with resumption and re-grant of inam granted for the performance of any charity or service. It comes under Chapter III, which deals with the general provisions in respect of Religious Institutions. Section 29 deals with alienation of immovable trust property. It prohibits exchange, sale or mortgage and any lease of any immovable property. Section 35 of the HR&CE Act reads as follows:

"35. Resumption and Re-grant of inam granted for the performance of any charity or service.- (1) Any exchange, gift, sale or mortgage and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the support of maintenance of a religious institution or for the performance of a A.S. NOS. 549 & 557 OF 1991

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charity or service connected therewith or of any other religious charity and made, confirmed or recognised by the State Government shall be null and void:

Provided that any transaction of the nature aforesaid not being a gift may be sanctioned by the State Government as being necessary or beneficial to the institution.

Explanation:- Nothing contained in this sub-section shall affect or derogate from the rights and obligations of the landholder and tenant in respect of any land which is ryoti land as defined in the Madras Estates Land Act, 1908.

(2) ......................................

...................................... ......................................"

13. Properties originally belonged to Mongandampulath Akathoot Thinayancheri Illam. In the year 1957, the members of the Illam executed a settlement deed setting apart the suit properties to the Temple. It is trite law that when properties are dedicated to a Temple, it become trust properties. In Narayana Pillai & Another v. Kesava Pillai (1962 KLJ A.S. NOS. 549 & 557 OF 1991

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389) it was held that if a Tharawad set apart certain properties for the performance of certain religious services and dedicates all the future income thereof for such religious purposes, a valid trust is created thereby even though the right of management of the property be retained with the Tharawad itself. In Rajasekharan Naicker v.

Govindankutty (1983 KLJ 506) it was held as follows:

"Properties once dedicated and a private trust created cannot be put an end to or set aside even with the consent of all parties interested in the endowment. If there was a valid dedication in favour of the devaswom concerned, even a unanimous decision among the members of the tarwad whether before or after a severance of status for the termination of the private trust will be of no avail".

So by Exhibit A1 settlement deed, a private trust was created. The seniormost male member of the Tharawad was directed to to manage the properties. The temple became a public Temple only on 14.7.1971. So the provisions of the HR &CE Act is not applicable to the Temple till 14.7.1971. According A.S. NOS. 549 & 557 OF 1991

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to the defendants one Raman Moossad, who was in management of the properties, orally leased out the properties to one Gopalan Nair on 24.6.1963. He sold the same to the first defendant under Exhibit B1 assignment deed on 26.6.1970. The case put forward by contesting defendants was that till the Temple was declared as a public Temple, the Karanavan was fully competent to transfer the properties and certificate of purchase was obtained by the first defendant with due notice to the plaintiff also. The Temple was not declared as a public Temple on the date of alleged oral lease by Raman Moossad to Gopalan Nair. Sections 29 and 35 of the HR&CE Act applies only to alienation of immovable properties of a Trust governed by the provisions of that Act. Section 35 provides that any exchange, gift, sale or mortgage and any lease for a term exceeding five years of the whole or any portion of any inam granted for the support or maintenance of the Temple are null and void. So Section 35 of the Act can have no application.

14. Section 87 of the Act reads as follows:

A.S. NOS. 549 & 557 OF 1991

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"87. Putting trustee or Executive Officer in possession.- Where a person has been appointed-

                      (a)    as   trustee   or   executive

         officer of a religious institution or,


                      (b)    to discharge the functions

of a trustee of a religious institution in accordance with the provisions of this Act, or

(c) in any scheme framed by the Board before the commencement of this Act.

and such person is resisted, or prevented from, obtaining possession of the religious institution or the records,m account and properties thereof, by a trustee, office-holder or servant of the religious institution who has been dismissed or suspended from his office or is otherwise not entitled to be in possession or by any person claiming or deriving title from such trustee, office- holder or servant,, not being a person claiming in good faith to be in possession on his own account or any account of some person not being such trustee, office holder or servant, or any Magistrate or the first class in whose jurisdiction such institution or property is situated shall, on application by the person so appointed, and on the production of the order of appointment, and where the application is for possession of property, of a certificate by the Commissioner in the prescribed form setting forth that the property in A.S. NOS. 549 & 557 OF 1991

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question belongs to the religious institution, direct delivery to the person appointed as aforesaid of the possession of such religious institution, or the records accounts and properties thereof, as the case may be:

Provided however that before issuing any such certificate in respect of any property, the Commissioner shall give notice to the trustee, office holder or servant of the religious institution, as the case may be, of his intention to issue the certificate and consider the objections; if any, of such trustee, office holder or servant:

Provided also that for the purpose of proceedings under this section, the certificate aforesaid shall be conclusive evidence that the properties to which it relates belong to the religious institution:

Provided further that nothing contained in this section shall bar the institution of a suit by any person aggrieved by an order under this section for establishing his title to the said property.

Explanation.- A person claiming under an alienation contrary to the provisions of section 29 or 35 shall not be regarded as a person claiming in good faith withing the meaning of this section".

If a trustee appointed is resisted or prevented from obtaining A.S. NOS. 549 & 557 OF 1991

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possession of the religious institution or of the records, accounts and properties thereof, by the person referred to in Section 87, the Commissioner is competent to take action. But in this case defendants 2 and 4 to 8 claim absolute title. They are not claiming any right under the third defendant, who was removed from the trusteeship. Section 93 of the HR&CE Act bars a suit in respect of administration or management of religious institution, if provision is made in the Act. Section 93 reads as follows:

"93. Bar of suits in respect of Administration or Management of Religious institutions, etc.- No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act".

15. A combined reading of Section 87 and 93 of the Act shows that Section 87 of the Act deals with the summary procedure to put the trustee in possession of the A.S. NOS. 549 & 557 OF 1991

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administration or management of the trust from the removed trustee or a person claiming under him. In Vedagiri lakshmi Narasimhaswami Temple v. Induru Pattabhirami Reddi (AIR 1967 SC 781) it was held as follows:

"Section 93 of the Act does not impose a total bar on the maintainability of a suit in a civil court. It states that a suit of the nature mentioned therein can be instituted only in conformity with the provisions of the Act: that is to say, a suit or other legal proceeding in respect of matters no covered buy the section can be instituted in the ordinary way. ....................................................... ............................................................... To state it differently, the said phrase does not impose a total bar on a suit in a civil court but only imposes a restriction on suits or other legal proceedings in respect of matters for which a provisions is made in the Act......".

16. In S.N.P. Nadar v. T.P.T. Charity (AIR 1971 Madras 253) it was held as follows:

"The short answer to this argument is that the present suit is not exclusively for a declaration that the plaint schedule properties are vested in trust. The main relief is recovery of possession of the A.S. NOS. 549 & 557 OF 1991

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properties of the trust from the alienee who is a stranger to the trust. The investigation of the trust character of the properties is only incidental to the main relief of recovery of possession. There is ample authority for the view that is a suit for relief of such a kind is not barred".

So the argument of the learned counsel for the defendants that the suit is barred under Sections 87 and 93 of the HR&CE Act is also without any merit.

17. The second defendant claimed that she is a cultivating tenant entitled to fixity of tenure and not liable to be evicted from the suit properties. That issue was referred to the Land Tribunal, Malappuram for a decision. The Land Tribunal found that the defendants are not cultivating tenants entitled to fixity of tenure. That finding was challenged in the appeal. The case of the contesting defendants was that in the year 1963 the Karanavan of the Illam orally leased the suit properties to one Gopalan Nair who in turn assigned that right to the first defendant under Exhibit B1 in the year 1970. First defendant filed O.A. No.447 of 1973 and obtained a certificate of purchase. It is admitted that the plaintiffs filed appeal A.S. NOS. 549 & 557 OF 1991

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before the Appellate Authority challenging the order passed in the O.A. The Appellate Authority allowed the appeal. The order of the Land Tribunal was set aside and the O.A. was dismissed. Challenging the order of the Appellate Authority, the applicant filed a Civil Revision Petition before this Court. That Civil Revision Petition was also dismissed. So the plea of fixity of tenure is barred by res judicata.

18. The Land Tribunal considered the issue on its merits also. On the side of the applicants one K.V. Gopalan Nair, who according to the defendants was the original lessee, was examined. Though he produced rent receipts from 1139 to 1143 ME., the Land Tribunal did not accept those receipts. He deposed that he does not know who wrote Exhibits A1 to A5 receipts. He had different versions regarding the entrustment. Land Tribunal found that Gopalan Nair did not get possession of the property.

19. There is nothing on record to show that there was an oral lease. A reading of Exhibit A1 shows that the suit properties were dedicated to the Temple. The Karanavan was given a limited right to take income and manage the affairs of A.S. NOS. 549 & 557 OF 1991

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the Temple. There is an express provision prohibiting the Karanavan from alienating the properties and from giving possession to others. Even if a lease was created it is exempted under Section 3 of the KLR Act. So the finding of the Land Tribunal that the defendants are not entitled to get fixity of tenure is perfectly correct and does not call for any interference. I confirm that finding.

20. Now I shall consider the contention of the defendants 2 and 5 that the right, if any, of the plaintiffs had lost by adverse possession and limitation. Learned counsel for defendants 2 and 5 argued that this is a case in which Tharawad lost possession of the properties and alienee was put in possession of the properties and as such the suit ought to have been filed within 12 years from the date of the lease. According to the defendants without setting aside the lease, plaintiffs are not entitled to get any relief. As I have already stated the claim of the second defendant was that there was an oral lease by Raman Moossad in favour of Gopalan Nair, who in turn assigned the same to the first defendant under Exhibit B1. Exhibit B1 is not a document executed by the A.S. NOS. 549 & 557 OF 1991

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Karanavan of the Illam either in his capacity as the trustee or Manager. It is a document executed by a stranger to Illam. There is an assertion by Gopalan Nair in that document to the effect that there was an oral lease. There is nothing on record to show that from 1963 onwards Gopalan Nair was in possession. The Temple became a public Temple only in the year 1971 and at that time the third defendant was the hereditary trustee. Exhibit A2 produced by the plaintiffs shows that a compliant was filed before the Commissioner in the year 1970, alleging mismanagement. It is very pertinent to note that Exhibit B1 is dated 26.6.1970. So there is much force in the argument of the counsel for the plaintiffs that Exhibit B1 was brought into existence after filing the complaint by the worshipers. There is absolutely nothing on record to show that until 1970 any stranger was in possession of the properties. Suit was originally filed before the Munsiff's court, Parappanangadi on 20.6.1981. It was returned and re- presented before the Sub Court, Triur on 22.12.1982. Properties belonged to a private trust. Learned counsel for the defendants relied on the decision reported in Mathew v. A.S. NOS. 549 & 557 OF 1991

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Ayyappankuty (1962 KLT 61 (F.B.) and argued that if a party wants the aid of a court, he must necessarily comes within the period prescribed by the law of limitation for action. Counsel also relied on a decision reported in Sarangadeva v. Ramaswami (AIR 1966 SC 1603) and argued that even as to the properties which belong to a Deity, the plea of adverse possession and limitation is maintainable. It is trite law that time will began to run only when the possession becomes adverse. According to defendants the second defendant is a tenant. The admitted case was that Raman Moossad in his capacity as a Manager gave the properties to Gopalan Nair under an oral lease. The first defendant claims title under Gopalan Nair. He filed the Original Application for assignment of the right, title and interest of the land owner admitting the title of the Illam. That application was filed in the year 1973. So he admitted that his possession was under the landlord as a tenant. A person who admits that he came into possession as a lessee necessarily will have to admit the title of the land owner. So he cannot be allowed to contend that his possession prior to that date was adverse to that of the true A.S. NOS. 549 & 557 OF 1991

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owner. The suit is filed within 12 years from the date of filing of the original Application. So there is absolutely no merit in the contention of the defendants that they have perfected title by adverse possession.

21. Suit was originally filed before the Munsiff's court, Parappanangadi. It was returned with endorsement to re- present the same before the Sub Court, Tirur, on or before 25.11.1982. It is argued that the suit was re-presented before the Sub Court, Tirur only on 22.12.1982 and as such the suit was barred. Though defendants 2 and 5 contended that the suit was barred, it was not explained under what provision of law the same was barred. If the suit was dismissed on merits, it will be barred by res judicata. Even if the plaint is rejected, that may not preclude the plaintiffs from filing a fresh suit in view of the provisions contained in Order VII Rule

13. Suit was originally filed before the Munsiff's court, Parappanangadi on 20.6.1981. Defendants raised a contention that the valuation of the subject matter was not correct. Learned Munsiff after considering that contention found that that the Munsiff's court had no jurisdiction to entertain the A.S. NOS. 549 & 557 OF 1991

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suit and passed an order to return the plaint to be presented before the Subordinate Judge's Court, Tirur. While returning the plaint the court directed the parties to appear before the Sub Court on 25.11.1982. Order VII Rule 10 CPC only provides that subject to the provisions of rule 10A the court may return the plaint to be presented to the court in which the suit should have been instituted. Sub-rule (2) of Rule 10 provides that on returning the plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it and a brief statement of the reasons for returning it. Rule 10A does not fix any time for re- presentation. But it only gives power to the court to fix a date of appearance in the court where plaint is to be filed after its return. Rule 10A of Order VII reads as follows:

"10A. Power of Court to fix a date of appearance in the Court where plaint is too be filed after its return.-

(1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff".

A.S. NOS. 549 & 557 OF 1991

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Neither Rule 10 nor Rule 10A fix any time limit within which the returned plaint is to be presented before the court in which the suit should have been instituted. In fact the court which returning the plaint has no power to fix a time limit within which it is to be refiled. The time taken for re- presentation of the suit cannot be counted to save the period of limitation. The plaintiff can claim exclusion of the time from the date of presentation of the plaint in wrong court till the date of return. There is no provision in the Code of Civil Procedure which bars the suit on the ground that the plaintiff failed to re-present the plaint within a time limit. Even if he is precluded from re-presenting the plaint he can very well file a fresh suit subject to the law of limitation. So there is no merit in the contention raised by the defendants that since there is failure on the part of the plaintiffs to re-present the plaint within the time fixed by the Munsiff's court, the suit was barred.

22. Learned counsel for defendants 2 and 5 has argued that plaintiffs have no right and title over the properties. It is A.S. NOS. 549 & 557 OF 1991

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argued that they were appointed for a specific period only and that too for the purpose of management of the Temple. It is argued that if the plaintiffs are allowed to recover the properties by executing the decree, they will misuse the same. It is argued that the defendants have adduced evidence to show that the very same plaintiffs have filed suit, O.S. Nos.54 of 1972 and 86 of 1982 against other persons. They colluded with the defendants in those suits and after accepting huge amounts, they had settled those cases and the properties were not recovered. It is argued that plaintiffs were acting against the interest of the Temple. It is argued that the specific prayer in the plaint was that plaintiffs are entitled to recover the properties on the strength of their title, but the trial court has not raised any proper issue on this point. It is argued that the trial court did not consider whether the plaintiffs are entitled to get recovery of the properties on the strength of their title. Learned counsel for the plaintiffs has argued that the Deity is not a necessary party in all suits relating to Debutter. He relied on a passage in the Book written by B.K.Mukherjea on the Hindu Law of Religious and A.S. NOS. 549 & 557 OF 1991

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Charitable Trust, 5th Edn. by A.C. Sen. In page 269 at paragraph 6.28 the learned author has opined that it is not necessary to implead the Idol in every case.

23. It is trite law that an Idol is a juristic person in whom the title to the properties of the endowment vests, but it is only in an ideal sense the Idol is the owner. It has to act through human agency. But in this case the learned Sub Judge has not considered whether the plaintiffs are entitled to get a relief without impleading the Deity in the party array. Learned counsel for defendants 2 and 5 relied on a decision in Sankaranarayan v. S.P. Temple (AIR 1949 Madras 721) and argued that since the claim of defendants 2 and 5 was that the lessee had effected alienation, the suit ought to have been filed on behalf of the Deity. Since the court below has not considered this issue at all, I am of the view that it is not just and proper to enter any finding on merit on this point.

Proper issue is to be raised and considered by the trial court.

24. Now I shall consider the appeal filed by the plaintiffs. According to the plaintiffs the finding of the trial court that defendants 2 and 5 are entitled to get value of A.S. NOS. 549 & 557 OF 1991

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improvements and value of building is totally illegal. It is argued that they are rank trespassers and are not entitled to get the value of improvements. The Kerala Compensation of Tenants Improvements Act, 1958 enjoins that when a tenant is liable to be evicted, he is entitled to get value of improvements. The words 'improvement' and 'tenant' are defined in this Act. Section 4 provides that every tenant shall on eviction be entitled to compensation for improvements which were made by him, his predecessor-in- interest or by any person not in occupation at the time of the eviction who derived title from either of them and for which compensation had not already been paid. Learned Sub Judge has not considered whether the defendants in this case are tenants entitled to get value of improvements. There is yet another illegality committed by him. Section 5(1) of the Act provides that the decree in eviction shall be conditional on payment of compensation. Section 5(2) provides that if the defendant establishes a claim for compensation due under Section 4 for improvements, the court shall pass a decree declaring the amount so found due and ordering that on A.S. NOS. 549 & 557 OF 1991

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payment by the plaintiff into the court of the amount so found due, the defendant shall put the plaintiff into possession of land. So if a person makes a claim for value of improvements, a duty is cast upon him to establish that he is a tenant entitled to get compensation. The court below can only pass a conditional decree and plaintiff can recover the property only on deposit of the amount. So deferring the question of value of improvements at the time of execution is illegal. The defendants ought to have adduced evidence to fix the quantum of compensation and decree ought to have been a conditional one. So that finding is liable to be set aside. I do so.

25. In the result, A.S. No.549 of 1991 is allowed. A.S.No.557 of 1991 is partly allowed. The suit is remanded to the court below for the limited purpose of considering the question of rights of the plaintiffs to maintain an action for recovery without impleading the Deity and also the issue regarding value of improvements in accordance with law after giving both sides opportunity to amend the pleadings and adduce further evidence, if so advised. A.S. NOS. 549 & 557 OF 1991

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26. Parties are directed to appear before the Sub Court, Tirur, on 18.2.2008.

Civil Miscellaneous Petition Nos.5702 and 6728 of 1991 shall stand dismissed.

K. PADMANABHAN NAIR, JUDGE.

vsv K. PADMANABHAN NAIR, J.

===================== A.S. NO. 549 OF 1991 AND A.S. NO. 557 OF 1991 ===================== J U D G M E N T

------------------------------------------- 29TH JANUARY, 2008

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