Kerala High Court
Mv.Unnikrishna Varier vs Valakkulath Thekke Variath Parukutty on 3 December, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 3RD DAY OF DECEMBER 2024/12TH AGRAHAYANA, 1946
MFA (HRCE) NO. 5 OF 2005
AGAINST THE JUDGMENT DATED 30.09.2004 IN O.S NO.37 OF
1999 OF SUBORDINATE COURT, TIRUR
APPELLANTS/DEFENDANTS 3, 4, 5 AND 8:
1 MANNAZHI VARIATH UNNIKRISHNA VARIER
S/O.VALAKKULATH THEKKE VARIATH CHAKRAPANI VARIER,,
60 YEARS, RESIDING AT VALAKKULAM AMSOM DESOM.
(DIED)
2 RADHAKRISHNA VARIER
S/O.CHAKRAPANI VARIER, VALAKULATH THEKKE, VARIATH,
AGED 55 YEARS, RESIDING AT DO.DO.
3 NAMBIARATH VELAYUDHAN SO.VELU AGED 58 YEARS,
RESIDING AT DO.DO. (DIED)
4 NAMBIARATH CHANTHU SO.
PARANGODAN, AGED 59 YEARS, RESIDING AT DO.DO.
(DIED)
5 N. CHANDRASEKHARAN, AGED 44 YEARS,
S/O. VELAYUDHAN NAMBIARATH HOUSE, P.O. VALAKKULAM,
MALAPPURAM DISTRICT - 676508 (IMPLEADED AS
ADDITIONAL APPELLANT 5 AS PER ORDER DATED
16/10/2024 IN IA 2/2023)
6 P. VINOD KUMAR,
AGED 36 YEARS,
S/O. KUMARAN PUTHUR HOUSE, P.O. VALAKKULAM,
MALAPPURAM DISTRICT - 676508 IS IMPLEADED AS
ADDITIONAL APPELLANT 6 AS PER ORDER DATED
16/10/2024 IN IA 2/2023.
M.F.A (HRCE) Nos.5 & 77 of 2005
-: 2 :-
2024:KER:90926
7 HAREESH T.V.
AGED 52 YEARS,
S/O. LATE UNNIKRISHNA VARIER, 'GOURISANKARAM',
VADAKKE VARIATH, VALAKKULAM P.O.,MALAPPURAM
DISTRICT - 676508 IS IMPLEADED AS ADDITIONAL
APPEALANT 7 AS PER ORDER DATED 16/10/2024 IN IA
2/2023.
BY ADVS.
PRABHA R.MENON
M.KRISHNAKUMAR
RESPONDENTS 1 TO 7 AND DEFENDANTS 1, 2, 6, 7 & 9 TO 30:
1 VALAKKULATH THEKKE VARIATH PARUKUTTY
VARASSIAR, AGED 70 YEARS,, W/O.KANDUNNI VARIER,
RESIDING AT VADAKKEEPPAT, VARIYAM, P.O. GURUVAYUR,
THRICHUR DISTRICT.
2 VALAKKULATH THEKKE VARIATH
SARADA VARASSIAR, D/O.UKKALI ALIAS KUNHI
VARASSIAR, AGED 65 YEARS, NEAR HOLY ANGEL'S
SCHOOL, CHEMBOOKAVU, THRISSUR P.O.
3 V.GOVINDA VARRIER SO.DO.
AGED 68 YEARS, VALAKKULATH THEKKE VARIAM,
RESIDING, AT VRINDAVAN LANE, JYOTHIS,
P.O.MANJERI,, MALAPPURAM DISTRICT.
4 V.MANOHARA VARIER, S/O.VALAKKULATH
THEKKE VARIATH UKKALI ALIAS KUNHI VARASSIAR, AGED
54 YEARS, RESIDING AT DEEPTHI", VALAKOLAM,P.O.
VALAKKULAM, MALAPPURAM DISTRICT (DIED)
5 V.KRISHNA VARIER, S/O.DO. AGED 60 YEARS
RESIDING AT DOOR NO.2/31, NER MEDICAL MAISSION,
HOSPITAL, MOGAPAIR- EAST CHENNAI-600050.
M.F.A (HRCE) Nos.5 & 77 of 2005
-: 3 :-
2024:KER:90926
6 V.PADMINI VARASSIAR
D/O.PARUKUTTY VARASSIAR, AGED 47 YEARS,,
VADAKKEPAT VARIAM, P.O.GURUVAYOOR,, TRICHUR
DISTRICT.
7 V.UNNIKRISHNA VARIER
S/O.VALAKKULATH THEKKE VARIATH PARUKUTTY
VARASSIAR, AGED 38 YEARS, P.O.GURUVAYOOR, TRICHUR
DISTRICT.
8 COMMISSIONER, HR & CE DEPARTMENT
KOZHIKODE.
9 DEPUTY COMMISSIONER, HR & CE DEPARTMENT
KOZHIKODE.
10 PONNARATH MOHANDAS,
AGED 40 YEARS, S/O.DEVAKI AMMA, RESIDING AT
VALAKKULAM, AMSOM DESOM.
11 PATTALATHIL PARAMESWARAN
S/O.KUNHUTTY, AGED 30 YEARS, KUNDAMCHENA,,
VALAKULAM AMSOM DESOM.
12 PARENGAL UNNIKRISHNAN, S/O.PARANGODAN
AGED 30 YEARS, VALAKULAM AMSOM DESOM.
13 PATTALATHIL DINESAN, S/O.KUNHUTTY
AGED 30 YEARS, KUNDAMCHENA, VALAKULAM AMSOM,
DESOM.
14 SANKARA VARIER, S/O.MADHAVI VARASSAIR
85 YEARS(DIED), P.O.KORATTIKKARA, KADAVALLUR,
THRISSUR DISTRICT.
15 RAGHAVA VARIER, S/O.UKKALI ALIAS
KUNHI VARASSIAR, AGED 75 YEARS, RESIDING AT,
POONKUNNAM P.O., THRISSUR-2.
M.F.A (HRCE) Nos.5 & 77 of 2005
-: 4 :-
2024:KER:90926
16 VIPIN CHANDRAN, S/O.SARADA VARASSIAR
AGED 42 YEARS, MANAGER, ASWANI HOSPITAL,,
KARUNAKARAN NAMBIAR ROAD, P.O.TRICHUR-680020.
17 V.BALAKRISHNA VARIER
S/O.VALAKKULATH THEKKE VARIATH PARUKUTTY
VARASSIAR, AGED 45 YEARS, VADAKKEPATT VARIYAM,,
P.O.GURUVAYOOR, TRICHUR DISTRICT.
18 V.VENUGOPALA VARIER
S/O.V.PARUKUTTY VARASSIAR, REP. BY POWER OF,
ATTORNEY PARUKUTTY VARASSIAR, AGED 43 YEARS,,
VADAKKEPAT VARIYAM, GURUVAYUR, P.O.GURUVAYUR,,
TRICHUR DISTRICT.
19 BEENA, C/O.V.KRISHNA VARIER
DOOR NO.2/31, NEAR MEDICAL MISSION HOSPITAL,, AGED
28 YEARS, MOGAPAIR EAST, CHENNAI-600050.
20 JYOTHI, C/O.V.GOVINDA VARIAR
VRINDAVAN LANE, AGED 29 YEARS, "JYOTHIES" MANJERI
P.O., MALAPPURAM DISTRICT.
21 BINDU, D/O.MANOHARA VARIAR
AGED 25 YEARS,"DEEPTHI", VALAKOLAM, VALAKOLAM
P.O., PIN-676508, MALAPURAM DISTRICT.
**22 V.PARUKUTTY VARASSIAR, AGED 76 YEARS
W/O.LATE SANKARA VARIER, RAMANILAYAM,,
KORATTIKKARA P.O., THRISSUR DISTRICT. (DIED)
** IT IS RECORDED THAT R22 IS NO MORE AND R6, R7,
R17 AND R18 ARE THE LEGAL HEIRS OF DECEASED R22 AS
PER ORDER DATED 29.11.2024.
23 V.BHAGYALAKSHMI, D/O.SANKARAN VARIER
AGED 52 YEARS, VADAKKEPPATT VARIAM,, GURUVAYUR
P.O., TRICHUR DISTRICT. (DELETED AT THE RISK OF
M.F.A (HRCE) Nos.5 & 77 of 2005
-: 5 :-
2024:KER:90926
THE APPELLANT AS PER ORDER DATED 25/11/2024 IN IA
3/2024.)
24 V.VIJAYALAKSHMI, D/O.--DO, AGED 50 YEARS
RAMANILAYAM, KORATTIKARA P.O., TRICHUR DISTRICT.
25 V.RADHAKRISHNAN, S/O.---DO., AGED 48 YEARS
RESIDING AT DO---DO.
26 V.RAMANKUTTY, AGED 46 YEARS,
S/O.LATE V.SANKARA VARIER,, RESIDING AT "SURTHI",
P.O.PUTHIYANGADI, WEST HILL, CALICUT.
27 V.MOHANAN, 44 YEARS. S/O.DO.
RESIDING AT DO--DO.
28 V.INDIRA, 42 YEARS
D/O.---DO. RESIDING AT ---DO.
29 V.GIRIJA, 40 YEARS
D/O.LATE V.SANKARA VARIER, PADINHARE VARIYAM,
P.O.PERINGODE, PALAKKAD DISTRICT.
30 NETTEMMADATH SARADAKUMARI, 66 YEARS
W/O.LATE RAGHAVA VARIER, POONKUNNAM,, THRISSUR
TALUK. (DELETED AT THE RISK OF THE APPELLANT AS
PER ORDER DATED 25/11/2024 IN IA 3/2024.)
31 NETTEMMADATH VIJAYAN, 46 YEARS
S/O.--DO., RESIDING AT ---DO.
32 NETTEMMADATH SASIDHARAN, 45 YEARS
S/O.-- DO., RESIDING AT --DO.DO.
33 NETTEMMADATH ASHA LATHA, 35 YEARS
POONKUNNAM AMSOM DESOM, THRISSUR TALUK.
M.F.A (HRCE) Nos.5 & 77 of 2005
-: 6 :-
2024:KER:90926
34 MEENAKUMARI A.V
AGED 67 YEARS, D/O. MANOHARA VARRIER, RESIDING AT
'DEEPTHI', VALAKKULAM P.O., MALAPPURAM - 676508 IS
IMPLEADED AS ADDITIONAL RESPONDENT 34 AS PER ORDER
DATED 06/07/2023 IN IA 1/2023 IN MJC 164/2017 IN
MFA(HRCE) 5/2005.
35 BINDU A.V
AGED 49 YEARS, D/O. MANOHARA VARRIER, RESIDING AT
'DEEPTHI', VALAKKULAM P.O., MALAPPURAM - 676508 IS
IMPLEADED AS ADDITIONAL RESPONDENT 35 AS PER ORDER
DATED 06/07/2023 IN IA 1/2023 IN MJC 164/2017 IN
MFA(HRCE) 5/2005.
36 BIJU A.V
AGED 45 YEARS, S/O. MANOHARA VARRIER, RESIDING AT
'DEEPTHI', VALAKKULAM P.O., MALAPPURAM - 676508 IS
IMPLEADED AS ADDITIONAL RESPONDENT 36 AS PER ORDER
DATED 06/07/2023 IN IA 1/2023 IN MJC 164/2017 IN
MFA(HRCE) 5/2005.
BY ADVS.
R.RANJANIE
JOBY JACOB PULICKEKUDY
SRI.ANIL GEORGE
SRI.T.KRISHNAN UNNI SR.
SRI.PAUL MATHEW PERUMPILLIL
SRI.VPK.PANICKER
SRI.K.S.SUMEESH
SRI.PARTHASARATHY.B, SC, MALABAR DEVASWOM BOARD
SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM
BOARD
THIS MFA (HRCE) HAVING BEEN FINALLY HEARD ON
29.11.2024, ALONG WITH MFA (HRCE).77/2005, THE COURT ON
03.12.2024 DELIVERED THE FOLLOWING:
M.F.A (HRCE) Nos.5 & 77 of 2005
-: 7 :-
2024:KER:90926
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 3RD DAY OF DECEMBER 2024 / 12TH AGRAHAYANA,
1946
MFA (HRCE) NO. 77 OF 2005
AGAINST THE JUDGMENT DATED 30.09.2004 IN O.S NO.37 OF
1999 OF SUBORDINATE COURT, TIRUR
APPELLANTS/DEFENDANTS 1 AND 2 IN OS:
1 THE COMMISSIONER, HR &CE DEPARTMENT
(ADMN.) KOZHIKODE.
2 THE DEPUTY COMMISSIONER,
HR & CE (ADMN.), KOZHKODE.
BY ADVS.
GOVERNMENT PLEADER
R.RANJANIE
SRI.PARTHASARATHY.B, SC, MALABAR DEVASWOM BOARD
SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM
BOARD
M.F.A (HRCE) Nos.5 & 77 of 2005
-: 8 :-
2024:KER:90926
RESPONDENTS/PLAINTIFFS 1 TO 7 AND DEFENDANTS 3 TO 30:
1 VALAKKULATH THEKKE VARIATH PARUKUTTY
VARASSIAR 70 YEARS, GURUVAYOOR.
2 VALAKKULATH TEKKE VARIATH SARADA
VARASSIAR, D/O. UKKALI ALIAS KUNHI VARASSIAR, 65
YEARS, SRUTHI, PUTHINGADI P.O., CALICUT-21.
3 GOVINDA VARRIER, S/O. UKKALI ALIAS
KUNHI VARASSIAR, 68 YEARS,VALAKKULATHE THEKKE
VARIAM, VRINDAVAN LANE,, JYOTHIS, P.O. MANJERI.
4 MANOHARA VARIER, S/O. VALAKKULATHE
THEKKE VARIATH UKKALI ALIAS KUNHI VARSSIAR,, 54
YEARS, A.M.U.P. SCHOOL, THUMBATHUPARAMBA P.O.,
VALAKKULAM, MALAPPURAM (DIED)
5 KRISHNA VARIER, S/O. VALAKKULATH
THEKKE VARIATH UKKALI ALIAS KUNHI VARASSIAR,, 60
YEARS, SRUTHI, PUTHINGADI P.O., CALICUT-21.
6 PADMINI VARASSIAR, D/O. PARUKUTTY
VARASSIAR, 47 YEARS, VALAKKULATH THEKKE VARIAM,,
GURUVAYOOR.
7 UNNIKRISHNA VARIER, S/O. VALAKKULATH
THEKKE VARIATH PARUKUTTY VARASSIAR,, 38 YEARS,
GURUVAYOOR.
8 MANNAZHI VARIATH UNNIKRISHNAN VARIER
S/O. VALAKKULATH THEKKE VARIATH CHAKRAPANI,
VARIER, 60 YEARS, VALAKULAM AMSOM DESOM.
9 RADHAKRISHNA VARIER, S/O. CHAKRIAPANI
VARIER, VALAKKULATH THEKKE VARIATH 55 YEARS,,
VALAKULAM AMSOM DESOM.
M.F.A (HRCE) Nos.5 & 77 of 2005
-: 9 :-
2024:KER:90926
10 NOMBIARATH VELAYUDHAN, S/O. VELU
58 YEARS, VALAKULAM AMSOM DESOM,, VALAKKULAM,
MALAPPURAM DISTRICT.
11 PONNARATH MOHANDAS, 40 YEARS
S/O. DEVAKI AMMA, VALAKULAM AMSOM, DESOM
VALAKKULAM, MALAPPURAM DISTRICT.
12 PATTALATHIL PARAMESWARAN
S/O. KUNHUTTY, 30 YEARS, KUNDAMCHENA, VALAKULAM
AMSOM DESOM, VALAKULAM,, MALAPPURAM DISTRICT.
13 NAMBIARATH CHANTHU, S/O.PARAGONDAN
30 YEARS, VALAKULAM AMSOM, DESOM, VALAKKULAM,
MALAPPURAM DISTRICT.
14 PARENGAL UNNIKRISHNAN, S/O. PARAGODAN
30 YEARS, VALAKULAM AMSOM DESOM,, VALAKKULAM,
MALAPPURAM DISTRICT.
15 PATTALATHIL DINESAN
S/O. KUNHUTTY, 32 YEARS, KUNDAMCHENA,, VALAKULAM
AMSOM DESOM, VALAKKULAM, MALAPPURAM DISTRICT.
16 SANKARA VARIER, S/O. MADHAVI VARASSIAR
KORATTIKKARA VARIAM, 85 YEARS (DIED).
*17 RAGHAVA VARIER, S/O. UKKALI @ KUNHI
VARASSIAR, PONGANATH VARIAM,, PONKUNNAM P.O.,
THRISSUR. * DEATH RECORDED
* AS PER MEMO DATED 11.9.2013, C-F NO.4424/13 AND
ORDER DATED 27/9/2013, THE DEATH OF 17TH
RESPONDENT.
RAGHAVA VARIER, S/O. UKKALI @ KUNHI VARASSIAR,
PONGANATH VARIAM,, PONKUNNAM P.O., THRISSUR IS
RECORDED AND THE FACT THAT HE IS SURVIVED BY HIS
SONS VIJAYAN, SASIDHARAN AND DAUGHTER ASALATHA WHO
M.F.A (HRCE) Nos.5 & 77 of 2005
-: 10 :-
2024:KER:90926
ARE THE 33RD , 34TH AND 35TH RESPONDENTS IN MFA
NO.77 OF 2005 RESPECTIVELY IS ALSO RECORDED.
18 VIPI CHANDRAN, S/O. SARADA VARASSIAR
42 YEARS, PUTHIANGADI, KOZHIKODE.
19 BALAKRISHNA VARIER, S/O. VALAKKULATH
THEKKE VARIATH PARUKUTTY VARASSIAR, 45 YEARS.
20 VENGUGOPALAN, S/O. VALAKKULATH
THEKKE VARIATH PARUKKUTTY VARASIAR, 43 YEARS,,
GURUVAYOOR.
21 BEENA, D/O. VALAKKULATH THEKKE VARIATH
GOVINDA VARIER, 28 YEARS, BEENA MEDICALS,, WEST
HILL, CALICUT.
22 JYOTHI, D/O. VALAKKULATH THEKKE
VASRIATH GOVINDA VARIER, EXECUTIVE OFFICER,, MDC
BANK, MALAPPURAM, 29 YEARS.
23 BINDU, D/O. MANOHARA VARIER
25 YEARS, THUMBATHUPARAMBA HOUSE,, AMLP SCHOOL,
MALAPPURAM.
24 V. PARUKUTTY VARASSIAR, 76 YEARS
W/O. LATE SANKARA VARIER, RAMANILAYAM,,
KORATTIKKARA P.O, THRISSUR DISTRICT.
25 DECEASED SANKARAVARIAR'S CHILDREN
V. BHAGYALAKSHMI, 52 YEARS, VADAKKEPPATT, VARIAM,
GURUVAYOOR.
26 V. VIJAYALAKSHMI, 50 YEARS
RAMANILAYAM, KORATTIKARA P.O.
27 V. RADHAKRISHNAN, 48 YEARS
M.F.A (HRCE) Nos.5 & 77 of 2005
-: 11 :-
2024:KER:90926
RAMANILAYAM, KORATTIKKARA P.O., THRISSUR.
28 V. RAMANKUTTY, 46 YEARS RAMANILAYAM
KORATTIKKARA P.O., THRISSUR DISTRICT.
29 V. MOHANAN, 44 YEARS RAMANILAYAM
KORATTIKKARA P.O., THRISSUR DISTRICT.
30 V. INDIRA, 42 YEARS RAMANILAYAM
KORATTIKKARA P.O., THRISSUR DISTRICT.
31 V. GIRIJA, 40 YEARS RAMANILAYAM
KORATTIKKARA P.O., THRISSUR DISTRICT.
32 NETTEMMADASTH SARADUKUMARI, 66 YEARS
W/O. LATE RAGHAVA VARIER, POONKUNNAM, THRISSUR
TALUK.
33 NETTEMMADATH VIJAYAN, 46 YEARS
S/O. LATE RAGHAVA VARIER,, POONKUNNAM, THRISSUR
TALUK.
34 NETTEMMADATH SASIDHARAN, 45 YEARS
S/O. LATE RAGHAVA VARIER, POONKUNNAM, THRISSUR
TALUK.
35 NETTEMMADATH ASHA LATHA, 35 YEARS
POONKUNNAM AMSOM DESOM, TRICHUR TALUK.
36 MEENAKUMARI A.V
AGED 67 YEARS, D/O. MANOHARA VARRIER, RESIDING AT
'DEEPTHI', VALAKKULAM P.O., MALAPPURAM - 676508
(THE LEGAL REPRESENTATIVE OF DECEASED 4TH
RESPONDENT IS IMPLEADED AS ADDITIONAL RESPONDENT
36 AS PER ORDER DATED 6/7/2023 IN IA 1/2023 IN MJC
126/2017 IN MFA(HRCE) 77/2005)
M.F.A (HRCE) Nos.5 & 77 of 2005
-: 12 :-
2024:KER:90926
37 BIJU A.V
AGED 45 YEARS, S/O. MANOHARA VARRIER, RESIDING AT
'DEEPTHI', VALAKKULAM P.O., MALAPPURAM - M676508
(THE LEGAL REPRESENTATIVE OF DECEASED 4TH
RESPONDENT IS IMPLEADED AS ADDITIONAL RESPONDENT
37 AS PER ORDER DATED 6/7/2023 IN IA 1/2023 IN MJC
126/2017 IN MFA(HRCE) 77/2005)
BY ADVS.
JOBY JACOB PULICKEKUDY
SRI.ANIL GEORGE
SRI.M.KRISHNAKUMAR
SRI.PAUL MATHEW PERUMPILLIL
SMT.PRABHA R.MENON
SRI.K.S.SUMEESH
THIS MFA (HRCE) HAVING BEEN FINALLY HEARD ON
29.11.2024, ALONG WITH MFA (HRCE).5/2005, THE COURT ON
03.12.2024 DELIVERED THE FOLLOWING:
M.F.A (HRCE) Nos.5 & 77 of 2005
-: 13 :-
2024:KER:90926
SATHISH NINAN,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------.
M.F.A (HRCE) Nos.5 & 77of 2005
---------------------------------
Dated this the 3rd day of December 2024
COMMON JUDGMENT
P.V.BALAKRISHNAN,J MFA No.5/2005 is filed by defendants 3,4,5 & 8 and MFA No.77/2005 is filed by defendants 1 and 2 in O.S.37/1999, aggrieved by the judgment and decree passed therein, by the Sub Court, Tirur.
2. O.S. No.37/1999 is a suit filed under Section 62 of the Madras Hindu Religious and Charitable Endowments Act 1951.
3. The plaintiffs' case is that the plaint schedule properties are the temple and its properties belonging to Valakkulam Variam. The temple is known as Valakkulam temple M.F.A (HRCE) Nos.5 & 77 of 2005 -: 14 :- 2024:KER:90926 and it is a private temple. As per the judgment in O.P.No.24/1944, of the North Malabar District Court, the said temple was declared as a private temple and the said judgment is even now in vogue. No steps have been taken till date, for making it a public temple. In 1955, a partition took place in the taravad and it was divided into Valakkulam Thekke Variam and Valakkulam Vadakke Variam. The plaint schedule properties were set apart to the thavazhies of Thekke Variam, with a condition to maintain the temple. While so, a partition took place among the Thekke Variam thavazhi members in 1977. The temple and its appurtenant properties were kept in common and described as J schedule property and the same is the plaint A Schedule. Another property in A schedule of the deed was also set apart for the temple. Accordingly, the affairs of the temple are being conducted. While so, defendants 3 to 10 approached the second defendant under Section 57 of the Madras Hindu Religious and Charitable Endowments Act 1951.(hereinafter M.F.A (HRCE) Nos.5 & 77 of 2005 -: 15 :- 2024:KER:90926 referred to as 'the Act') by filing O.A.No.5/85, by contending that the temple is a public temple and the properties set apart to Thekke Variam are Devaswom properties. All the members of the thavazhi were not parties to the proceedings. On 12/6/1992 the O.A.was allowed and the plaintiffs approached the Appellate Authority by filing A.P.No.3/1992. This appeal was disposed of on 25/11/1994 by holding that the temple is a public temple. But as to the question regarding the right over the property, the matter was remanded back. Thereafter, the second defendant found that the properties are that of the temple. The appeal filed aggrieved by the said finding was dismissed on 17/2/1999. The decision was rendered without looking into the materials on record. The public have no right in the affairs of the temple even though, they were not objected in worshipping in the temple. Merely because such persons made some offerings, the same will not make the temple, a public temple. As on today, the Variam is having right and possession only over B, C & D M.F.A (HRCE) Nos.5 & 77 of 2005 -: 16 :- 2024:KER:90926 schedule properties and the other properties have already been assigned to others. The admission made in O.S.No.469/1950 pending before the Munsiff Court, Parappangadi that the properties are temple properties is not correct. In the said suit, all the members of the taravad are not parties. Hence this suit is filed seeking declaration that Valakkulam temple is a private temple and the properties are private properties, with consequential reliefs.
4. Defendants 1 and 2 contended that the plaint schedule properties are Devaswom properties as per 1884 partition deed. The members of Thekke Variam have only rights to manage the Deveswom properties and look after the affairs of the temple. But they did not show any interest in managing the temple and started assigning the properties to third parties. The members of the Thekke Varriam, executed a partition deed in 1977, by asserting that the devaswom properties are private properties of Thekke variam. Consequently, some members of M.F.A (HRCE) Nos.5 & 77 of 2005 -: 17 :- 2024:KER:90926 the Vadakke Variam thavazhi and some devotees filed O.A.No.5/1985. The public were worshipping in the temple and they used to make offerings also. The temple is being protected by the devotees and all the expenses are also met by them . The attempt of the plaintiffs is some how to usurp the devaswom properties.
5. Defendants 3,4 5 & 8 contended that Valakkulam Shiva temple is a temple of all the devotees and locals residing in that area and it is not a private temple. The plaintiffs created fraudulent documents in 1977 to usurp the temple properties and they are not at all interested in the affairs of the temple. The temple is in ruins for the past 25 years and under the leadership of the third defendant, a Samithi was formed to protect the temple. Accordingly, it is the committee which is conducting daily Poojas and running the affairs of the temple. When the plaintiffs attempted to assign the properties of the temple, the defendants approached the HR &CE Commission by filing O.A.No.5/1985. M.F.A (HRCE) Nos.5 & 77 of 2005 -: 18 :- 2024:KER:90926 There is no cause of action of this suit and there are no grounds to set aside the orders passed by the authorities. The temple is not a private temple and the properties scheduled are Devaswom properties. For the past 25 years, it is a committee headed by the third defendant, which is managing the affairs of the temple.
6. The evidence in this case consists of the oral evidence of PW1 and DWs1 to 3 and documentary evidence A1 to A12, B1 to B26 and Ext.X1. The learned Sub Judge on an appreciation of the evidence on record, decreed the suit and held that Sri.Valakkulam Shiva Temple is a private temple and set aside the orders passed by the Deputy Commissioner and the Appellate Authority.
7. Heard the learned counsel appearing for the appellants and the learned Counsel appearing for the contesting respondents. Perused the records.
8. The points that arise for consideration in these appeals are:
M.F.A (HRCE) Nos.5 & 77 of 2005 -: 19 :- 2024:KER:90926
i) Whether O.S. No.37/1999 is barred by limitation ?
ii) Whether the finding of the learned Sub Judge that Valakkulam Shiva Temple is a private temple sustainable on the basis of the evidence on record?
iii) Whether the impugned judgment and decree setting aside the orders of the Deputy Commissioner and as confirmed by the appellate authority in O.A.No.5/1985 is correct?
iv) Whether the impugned judgment and decree are correct and whether the same requires any interference?
v) Reliefs and costs.
9. We will first consider the question of limitation raised in this appeal. In the present case, as stated earlier, the suit is filed under Section 62(1) of the Act, aggrieved by the orders passed by the Appellate Authority on 6/11/1995 and 17/2/1999 in the proceedings arising out of O.A.5/1985. The records go to show that O.A.No.5/1985 has been filed before the 2nd defendant under Section 57 of the Act, with a prayer to declare Valakkulam Shiva temple as a public temple and a place of public religious worship, and the properties described in the schedule as M.F.A (HRCE) Nos.5 & 77 of 2005 -: 20 :- 2024:KER:90926 belonging to the temple and Devaswom, as such religious endowments of a public nature. As per order dated 12/6/1992, the 2nd defendant disposed of O.A.No.5/1985 and declared Sri.Valakkulam Shiva temple as a public religious institution coming under the purview of the Act. It was also found that the petition schedule properties originally belonged to the temple. The said order was taken in appeal by the respondents and the Appellate Authority as per Order dated 6/11/1995 in A.P.No.3/1992, confirmed the order of the Deputy Commissioner with regard to the finding that the temple is a public religious institution and remanded the matter to decide afresh the question whether the petition schedule properties are properties of the temple. Thereafter, by Ext.B1 order dated 20/12/1997, the Deputy Commissioner again found that the petition schedule properties originally belonged to the temple. Against the said order the respondents preferred an appeal and as per order in Ext.A5 dated 17/2/1999, the appeal was dismissed. M.F.A (HRCE) Nos.5 & 77 of 2005 -: 21 :- 2024:KER:90926
10. It is the contention of the appellants that, so far as the proceedings relating to the declaration of the temple as a public religious institution, the same has attained finality when the order passed in O.A.No.5/1985 on 12/6/1992 was confirmed by the appellate authority as per proceedings dated 6/11/1995 and hence, the present suit filed in 1999 challenging the afore proceedings is barred by limitation. Per contra, the learned counsel for the contesting respondents would contend that what is challenged in the suit is the entire proceedings as such in O.A.No.5/1985 and therefore, being a part of the proceedings, the order declaring the temple as a public religious institution cannot be categorised into a separate block.
11. While considering the afore question , it would apt to refer to Section 62(1) & (2) of the Act, which read as follows;
"62.Suits and appeals.-(1) Any party aggrieved by an order passed by the Commissioner-
i) under Section 61,sub-section(1) or sub-section (2), and relating to any of the M.F.A (HRCE) Nos.5 & 77 of 2005 -: 22 :- 2024:KER:90926 matters specified in Section 57, Section 58 or Section 60; or ii ) under Section 57, Section 58 or Section 60 read with sub-section (1)(a),(2), or (4) (a) of Section 19 may, within ninety days from the date of the receipt of such order by him, institute a suit in the Court against such order; and the Court may modify or cancel such order, but it shall have no power to stay the Commissioner's order pending the disposal of the suit.
(2) Any party aggrieved by a decree of the Court under sub-section (1) may,within ninety days from the date of the decree, appeal to the High Court."
12. Going by Section 62(1), any party aggrieved by an order passed by the Commissioner under Section 61 has to institute a suit in the court against such order within a period of 90 days from the date of receipt of such order. It is to be kept M.F.A (HRCE) Nos.5 & 77 of 2005 -: 23 :- 2024:KER:90926 in mind that the suit provided under Section 62 is only a continuation of the proceedings initiated by the Deputy Commissioner under Section 57 and disposed by the Commissioner under Section 67 of the Act (See Azhakodi Devi Charitable Trust v. Commissioner HR & CE 2007 (1) KHC
110). In the present case, as stated afore, the order passed by the Deputy Commissioner in O.A.No.5/1985 declaring Valakkalam Shiva temple as a public religious institution was upheld by the appellate authority as early as on 6/11/1995. It is true that while doing so, by the very same order ,the appellate authority has also remanded back the matter to consider afresh, the question whether the petition schedule properties belong to the temple or not. It is also true that after remand, the said question was considered and decided by the 2 nd defendant and the same was confirmed in appeal as per Ext.A5 order. But it is to be seen that the proceedings in so far as it relates to the declaration of Valakkulam Shiva Temple as a public religious M.F.A (HRCE) Nos.5 & 77 of 2005 -: 24 :- 2024:KER:90926 institution has been decided finally by the appellate authority on 6/11/1995 and it is only the question relating to property rights which has been remanded back. Then challenge needs to be upon the original order dated 06.11.1995. If so, we are of the considered view that the cause of action for the plaintiffs, who are the persons aggrieved of declaring the temple as a public religious institution, arises from that date and the suit challenging the said order ought to have been filed within 90 days as stipulated under Section 62(1)(ii) of the Act. At this juncture, we will also take note of the settled law that even though the authorities under the Act cannot declare a temple as a public temple or a private temple, they do have the power to decide whether the institution is a public religious institution or a private religious institution (See Gopinathan K.V. & others v.Kannankavu Devaswom, Udama and Ooralam Raman & others [2004 (2) KLT 511] and Gangadharan Nair M & another v. Commissioner, Malabar Devaswom Board, M.F.A (HRCE) Nos.5 & 77 of 2005 -: 25 :- 2024:KER:90926 Kozhikode & others [2013 (3) KLT 1017]) . Ergo we find that the suit filed by the plaintiffs seeking declaration of Valakkalam Shiva temple as a private temple is barred by limitation.
13. The next question to be considered in this appeal is whether the impugned judgment setting aside the order passed by the Deputy Commissioner and as confirmed in appeal, holding that the petition schedule properties originally belonged to the temple is correct or not. While considering this point, we take note of the fact that the averments in the O.A.itself would reveal that many of the temple properties have already been unauthorisedly alienated by the respondents and that they are continuing their attempt. A perusal of the order dated 12/6/1992 in O.A.No.5/1985 would show that the authority has also found that all the surrounding property of the family have been sold out and different people live by the side of the temple and also that some of them are in possession of tenants. A M.F.A (HRCE) Nos.5 & 77 of 2005 -: 26 :- 2024:KER:90926 similar finding has also been reached by the appellate authority in its order dated 17/2/1999 and it is found that the temple properties were shown as tharwad properties in the partition deed of 1977 and were sold. A perusal of the plaint would again go to show that the plaintiffs have contended that among the scheduled properties only B, C & D scheduled properties are now available and the other properties have already been alienated. It is an admitted fact that the persons who thus possess parts of the alleged temple property are not parties to any of the proceedings referred herein, including the suit. In fact, the learned Senior Counsel appearing for the appellants in MFA No.77/2005 also fairly conceded the same. If so we are of the view that the finding in Ext.B1 and Ext.A5 that the scheduled properties originally belonged to the temple, without making the stake holders a party in those proceedings and hearing them, cannot be sustained. In other words, we may say that the orders passed by the authorities under the Act, impinging upon the right M.F.A (HRCE) Nos.5 & 77 of 2005 -: 27 :- 2024:KER:90926 and title over the properties belonging to persons who are not in party array and not before the authorities, is illegal. This in turn means that no interference is required with the decree passed by the Sub Court setting aside the orders of the Deputy Commissioner, as confirmed by the Appellate Authority in O.A.No.5/1985 regarding the finding that the scheduled properties originally belong to the temple. It is made clear that in the light of the afore findings, we are not delving upon the question of title over the scheduled properties and the said question is left open to be agitated in appropriate proceedings by the parties concerned.
14. The upshot of the afore discussions is that the suit in so far as it relates to challenging the orders passed by the Deputy Commissioner as confirmed by the Appellate Authority in O.A.No.5/1985 with respect to the finding that Valakkulam Shiva temple is a public religious institution, is barred by limitation. But the plaintiffs are entitled for a decree setting aside the orders of M.F.A (HRCE) Nos.5 & 77 of 2005 -: 28 :- 2024:KER:90926 the Deputy Commissioner, as confirmed by the Appellate Authority in O.A.No.5/1985 in so far as it relates to the finding that the the scheduled properties originally belonged to Valakkulam Shiva Temple.
In the result, these appeals are allowed in part as follows:-
i) The judgment and decree passed by the Sub Court, Tirur in O.S.No.37/1999 declaring Valakkulam Shiva Temple as a private temple is set aside.
ii) O.S.No.37/1999 in so far as it relates to challenging the orders passed by the Deputy Commissioner, as confirmed by the Appellate Authority in O.A.No.5/1985 with respect to the finding that Valakkulam Shiva temple is a public religious institution, is found barred by limitation.
iii) The judgment and decree passed in O.S.NO.37/1999 setting aside the orders of the Deputy Commissioner as confirmed by the Appellate Authority in O.A.No.5/1985, in so far M.F.A (HRCE) Nos.5 & 77 of 2005 -: 29 :- 2024:KER:90926 as it relates to the finding that the the scheduled properties originally belonged to Valakkulam Shiva Temple is confirmed.
iv). It is made clear that the question of title over the scheduled properties is left open to be agitated in appropriate proceedings by the parties concerned.
v) Considering the facts and circumstances of this case, cost made easy.
Sd/-
SATHISH NINAN JUDGE Sd/-
P.V.BALAKRISHNAN JUDGE dpk