Kerala High Court
St.George Gracy Memorial vs Defendants & L.Rs Of Deceased
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
THURSDAY,THE 27TH DAY OF JULY 2017/5TH SRAVANA, 1939
RSA.No. 330 of 2008 (E)
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AGAINST THE JUDGMENT AND DECREE DATED 18.8.2007 IN AS NO.13/2005 of
ADDITIONAL DISTRICT COURT,KOTTAYAM
AGAINST THE JUDGMENT AND DECREE DATED 30.09.2004 IN OS NO. 427/1996 of
PRINCIPAL SUB COURT,KOTTAYAM
APPELLANT:RESPONDENT:PLAINTIFF.:
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ST.GEORGE GRACY MEMORIAL
CHURCH,PARATHODU,
(*) REPRESENTED BY ELIZABETH JACOB, (DIED.ADDL.APPELLANTS 2 TO 5
W/O. JACOB ILLICKAN, RESIDING AT ARE IMPLEADED)
ILLICKAL HOUSE, THRIPPUNITHURA,
ERNAKULAM, KOCHI - 16.
APPELLANT DIED. ADDL.APPELLANTS 2 TO 5 ARE IMPLEADED:
ADDL.A2. SHEELA MERIN JACOB, @ SHEELA PHILIP
W/O.PHILIP MATHEW, THAZHEKKATTUHOUSE,
EDAPALLY-P.O., THRIKKAKKARA NORTH VILLAGE.
ADDL.A3. JOHN.J.ILLICKAL, ILLICKAL HOUSE,
SAHODHARAN AYYAPPAN ROAD, ERNAKULAM.
ADDL.A4. REBECCAABRAHAM, PEEDIKAYIL, PATHANAMTHITTA.
ADDL.A5. SUJA SAJAN, THADATHIL, KANJIKUZHY, KOTTAYAM.
ADDL.APPELLANTS 2 TO 5 ARE IMPLEADED AS LR'S OF DECEASED SOLE APPELLANT AS
PER ORDER DT.12/8/09 ON IA.1089/08.
BYADVS.SRI.A.ANTONY
SMT.LEELAMMAANTONY
RESPONDENTS:APPELLNATS, RESPONDENTS 2&3 : DEFENDANTS & L.RS OF DECEASED
1ST RESPONDENT:
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1. ANNAMMA JOHN, W/O. JOHN,
WAS RESIDED AT ERIKATTUHOUSE,
THAZHATHANGADY KOTTAYAM,
(THE 1ST RESPONDENT DIED ON 28-8-2007,
HER L.R.S ARE RESPONDENTS 2,3 & 6 TO 9,
THE RESPONDENTS 2 AND 3 WERE APPELLANTS
2 AND 3 IN THE COURT BELOW AND DEFENDANTS
2 AND 3 IN THE TRIAL COURT.)
RSA NO.330/2008 2
2. E.J.JOHN, S/O. JOSEPH,
RESIDING ATERIKATTU HOUSE, THAZHATHANGADY, KOTTAYAM.
3. JIKKU JOHN, S/O. JOHN,
RESIDING ATERIKATTU HOUSE, THAZHATHANGADY, KOTTAYAM.
4. ANNAMMA VARGHESE, W/O. VARGHESE,
CHERUMALATHEKKETHIL, RESIDING ATAYAVAN
VAZHIKIZHAKETHIL, MANGARAM KARA, PANTHALAM VILLAGE
5. VIJI VARGHESE,
S/O. VARGHESE, CHERUMALATHEKKETHIL, RESIDING ATAYAVAN
VAZHIKIZHAKKETHIL, MANGARAM KARA, PANTHALAM VILLAGE.
6. ROSHINI, W/O. GEORGE VARGHESE,
F-3, ALSA COURT, 72-HARRINGTON ROAD, CHETPET, CHENNAI - 600 031.
7. REGINA, W/O. ROY THOMAS,
87, DACOSTA SQUARE, 1ST COKE TOWN, BANGALORE - 5600 084.
8. ANU, W/O. PHILIP MATTHAI,
COLLOREDOGASSE 16/8, 1-1180-VIENNA, AUSTRIA.
9. ANITA, W/O. GEORGE JOHN,
4/1 WALTON ROAD, BANGALORE - 560 001.
R5 BY ADVS. SRI.MANU V.
SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
R2, R3 & R6 TO R9 BY ADV. SRI.PREMJIT NAGENDRAN
R3 BY ADVS.SRI.P.VISWANATHAN
SRI.SHIBU JOSEPH
SRI.SUNIL N.SHENOI
INTERVENOR BYADVS. SRI.S.SREEKUMAR (SENIOR ADVOCATE)
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
27-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.HARIPRASAD, J.
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R.S.A. No.330 of 2008
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Dated this the 27th day of July, 2017
JUDGMENT
Aggrieved by the judgment and decree passed by the lower appellate court in a suit for declaration that the plaint item Nos.2 and 3 are trust properties, that the purchase certificates issued in the name of 2nd defendant do not bind the trust property and also for removing the 1st defendant from management of the private trust having name "St.George Gracy Memorial Church, Parathodu and for other reliefs, the plaintiff has preferred this appeal. For the sake of convenience, the parties are hereinafter referred to as the plaintiff and defendants.
2. Short facts are thus: Plaintiff and 1st defendant are sisters. 2nd defendant is the husband of 1st defendant. 3rd defendant is the son of defendants 1 and 2. Deceased Koshy, father of the plaintiff and 1st defendant, constructed a church with a cemetery in memory of his daughter Gracy in plaint item No.1. The church was named as "St.George Gracy Memorial Church, Parathodu". The property on which the church is situated is having an extent of about 2 acres. A private trust was constituted by deceased Koshy. Till death, Koshy was managing the affairs of the church. After his death, Ext.A1 deed was executed in the year 1952. It is styled as an "udambadi". The property in which the church is situated is RSA No.330 of 2008 2 shown in E schedule to Ext.A1. 2nd defendant clandestinely obtained purchase certificates in respect of the property belonging to the private trust. Those documents are not binding on the plaintiff and the church. According to the plaint averments, the church is a private trust though outsiders were allowed to conduct prayers and ceremonies like marriage, baptism, etc, in the church. Dead bodies were also allowed to be buried in the cemetery. However the church retained the character of a private trust. According to the plaint averments, Exts.B3 and B4 purchase certificates in the name of the 2nd defendant are fraudulent documents and do not bind the church and its properties.
3. Defendants 1 and 2 filed a written statement contending that the suit as instituted is not maintainable for want of sanction under Order I Rule 8 of the Code of Civil Procedure, 1908 (in short, "CPC"). They questioned the locus standi of the plaintiff to represent the church. Defendants contended that the church has no right over item Nos.2 and 3. According to them, those properties belonged to the 2nd defendant in tenancy right and he obtained the purchase certificates through a Land Tribunal after complying with all the formalities. No reliefs can be granted in respect of plaint Item Nos.2 and 3. Defendants 4 and 5 also filed a written statement supporting the contentions of defendants 1 and 2.
4. Before the trial court, 12 documents were exhibited on the side RSA No.330 of 2008 3 of the plaintiff and 18 documents, on the side of the defendants. Two witnesses testified for the plaintiff and one witness, on the side of the defendants.
5. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents and the intervenor.
6. Trial court after considering the evidence, decreed the suit in full. Defendants 1 to 3 preferred an appeal before the lower appellate court. That court, after re-appreciating the evidence, partly allowed the appeal setting aside the decree in respect of item Nos.2 and 3 shown in the plaint schedule. It was made clear that the property belonging to the church is confined to E schedule in Ext.A1, that is 1.42 acres of property shown in plaint item No.1. Receiver appointed pending the suit was directed to handover possession of plaint item Nos.2 and 3 to the respective parties.
7. This second appeal was admitted by a Single Judge on the following substantial questions of law:
"(i) In the facts and circumstances of the case, is it not the court below went wrong in holding that the plaint claim with respect to plaint schedule item Nos.2 and 3 properties are barred by limitation.
(ii) If one goes through the evidence of 2nd defendant as DW1, excerpts of which are extracted RSA No.330 of 2008 4 in the trial court's judgment, then it is crystal clear that his evidence is res ipsa loquitor for proving fraud alleged in the case. In that event is it not the court below wrong in interfering with the decree of trial court with respect to plaint item Nos.2 and 3 properties.
(iii) In the peculiar nature of the case, and also when both sides adduce evidence in the case (Vide AIR 1999 SC 2216, AIR 1968 SC 1413) the burden of proof is only academic interest, is it not the court below legally went wrong in casting burden of proof on the plaintiff.
(iv) From the evidence adduced in the case, the previous litigations between the parties and conduct of 2nd defendant, is it not the court below acted illegal in interfering with decree of the trial court in appointing the plaintiff as managing trustee of the plaint schedule item No.1 church after removing the 1st defendant.
(v) In the absence of any legal evidence adduced, is it not the court below went wrong in holding the defendants 3, 4 and 5 are bonafide purchasers of plaint item Nos.2 and 3 properties for valuable consideration.
(vi) Whether the court below went wrong in holding that the receipts produced by DW1 to prove tenancy is legally acceptable when there is clear finding based on concrete evidence that the same do RSA No.330 of 2008 5 not relate to plaint schedule item Nos.2 and 3 properties and they are bogus."
8. Learned counsel for the appellant contended that the lower appellate court seriously erred in disturbing a well reasoned judgment of the trial court. According to the learned counsel, the lower appellate court failed to mention any valid reason for finding that item Nos.2 and 3 in the plaint schedule do not belong to the church. It is the contention of the plaintiff that Exts.B3 and B4 purchase certificates in respect of these properties were obtained by fraudulent means. According to the plaintiff/appellant, the said documents could never affect the rights of the church and they are sought to be set aside in the plaint.
9. Learned counsel for respondents 2 and 3 strongly contended that the relief of setting aside Exts.B3 and B4 cannot be granted by any stretch of reasoning because there is no material pleaded in the plaint as required under Order VI Rule 4 CPC to grant a relief. Specific instance of fraud has not been pleaded and proved. I have been taken through the oral evidence adduced by the witnesses on both sides. It is difficult to hold that the materials required to claim a relief of setting aside Exts.B3 and B4 have been made out in the plaint or in the evidence.
10. Another contention is regarding the right to get a declaration that plaint item Nos.2 and 3 are trust properties and Exts.B3 and B4 enure to the benefit of trust properties and further that the 2nd defendant has not RSA No.330 of 2008 6 derived any title to plaint item Nos.2 and 3.
11. It is seen from the judgments of the courts below that Exts.B3 and B4 were properly proved. It is the case of the defendants 2 and 3 that they took the property on lease from Palapram Devaswom. In order to substantiate this contention, Ext.B18 series rent receipts are produced. That apart, Ext.B10 series agreements evidencing the leasing out of buildings in plaint item Nos.2 and 3 are also produced by the parties. There is no satisfactory explanation on the side of the plaintiff in respect of these documents.
12. Learned counsel for the plaintiff/appellant contended that the 1st defendant was in management of the church. She misused her position as managing trustee and helped other defendants to create the fraudulent documents. According to the learned counsel for the plaintiff, item Nos.2 and 3 do not lie separately and they lie together with item No.1 and all the properties are surrounded by a compound wall. To controvert this argument, my attention has been drawn to Exts.A6 to A9 plans and reports submitted by the advocate commissioners deputed in O.S.No.178 of 1991 between the same parties. Ext.B1 is the decree in that suit. It shows that the suit was dismissed for default. One of the commissioners deputed in that suit was examined in this case as PW2. It is evident from his admission as well as from his report that the properties claimed by RSA No.330 of 2008 7 defendants 2 and 3 lie separate from the church property. Learned counsel for respondents 2 and 3 contended that even in the affidavit filed in lieu of chief examination by the power of attorney of the plaintiff, it will be clear that item Nos.2 and 3 lie separately from item No.1. It is pertinent to note that no commission was taken out in this suit to identify the property.
13. Learned counsel for the plaintiff contended that the compound wall, said to be built around item Nos.2 and 3, was of recent origin and the entire property was lying as a single plot. According to her, there is no demarcation between item No.1 on one hand and item Nos.2 and 3 on the other. I have been taken through the descriptions in Ext.A1 and in Ext.B1 decree in O.S.No.178 of 1991 before the Munsiff's Court, Kanjirappally. Survey number, extent and boundaries shown in E schedule to Ext.A1 and the schedule in Ext.B1 decree are the same. The plaint averments would go to show that the church is in possession of nearly two acres. But going through the documents, it would be seen that the church is in possession of 1.43 acres only in re-survey No.199/1.
14. Even though the 2nd defendant claimed tenancy right in respect of large extent, Exts.B3 and B4 purchase certificates issued in his favour will show that 45 cents and 18 cents were alone given in purchase. Learned counsel for the plaintiff contended that the 2nd defendant's claim is in respect of a property lying far away from the church property. However, RSA No.330 of 2008 8 there is no material to support that contention by the plaintiff.
15. The lower appellate court relying on these aspects found that item Nos.2 and 3 do not belong to the church by virtue of Ext.A1. I find no illegality in the order passed by the lower appellate court in respect of identification of property.
16. Another legal hurdle faced by the plaintiff is that the earlier suit in respect of the same property against the defendants filed by the same plaintiff was dismissed for default. No leave of the court was obtained as required under Order XXIII Rule 1 CPC for abandoning the relief. Since the subject matter is the same, certainly the provisions under Sub-rule (4) of Order XXIII Rule 1 CPC will be attracted. There is no legal explanation to circumvent the difficulty.
17. Learned counsel for respondents 2 and 3 contended that going by Section 72K of the Kerala Land Reforms Act, 1963, the purchase certificates should be taken as conclusive proof in respect of title to the property covered by the documents. Although these documents were produced in O.S.No.178 of 1991, the plaintiff has not chosen to challenge it in the appropriate forum. That apart, the relief moulded in such a manner, that a fraudulent document, allegedly created by the 2nd defendant, will enure to the benefit of the plaintiff, itself is inconceivable. These infirmities could not be properly explained by the materials on record. RSA No.330 of 2008 9
18. Another legal difficulty in this case is regarding the absence of a consequential relief as required under Section 34 of the Specific Relief Act, When a consequential relief ought to have been sought for in a suit for declaration, it becomes not maintainable for want of a proper consequential relief. It has been settled by judicial pronouncements that a declaration shall not be granted, if a consequential relief flows out of it and such a relief was not asked for. Therefore, on this score also I find that the frame of suit is not proper.
19. Coming back to the facts, court below has considered the issue regarding item Nos.2 and 3 correctly on the basis of evidence available and found that the plaintiff could not establish right over plaint item Nos.2 and 3. Therefore, I find no reason to interfere with the finding of the lower appellate court.
20. Regarding the impleading petition filed by a third party as I.A.No.1954 of 2013, it is my considered opinion that the application cannot be allowed at this stage of the proceedings for more reasons than one. First of all, this is a dispute between two individuals even though a church is included in the dispute. Nature of the church and to which faction in the Jacobite Church it belongs is not a matter to be decided in this case, since this is a dispute pertaining to private properties. It is all the more clear the courts below have concurrently found in respect of item No.1 that the RSA No.330 of 2008 10 property, where the church is situated, is a private trust. Further, a scheme was also framed for administration of the church. Therefore, nature of the church need not be decided in this proceedings. Petitioner, who seeks impleadment, wanted to assert that there cannot be a private trust and the church in this case is Malankara Jacobite Church, controlled by Orthodox faction and to be administered under 1934 Constitution. Anyway, for decision of this case, no adjudication in that regard is required. Therefore, I do not venture to do so. In the absence of any challenge against the rights governing item No.1 and the structures thereon by any of the parties to the suit, I need not venture to decide the rights of the intervenor. Therefore the impleading petition is dismissed.
Leaving open those issues to be decided in appropriate proceedings, the substantial questions of law are decided against the plaintiff/appellant. Appeal is dismissed.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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