Kerala High Court
Syamala vs Unknown on 13 February, 2019
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY ,THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940
AS.No. 35 of 2002
AGAINST THE DECREE AND JUDGMENT DATED 14.08.2001 IN OS
NO.76/1993 of SUB COURT,ATTINGAL
APPELLANTS(PLAINTIFFS 2 TO 6, 8 & 9):
1 SYAMALA, D/O.KARTHIYAYINI, GOVERNMENT
SERVANT,RESIDING AT CHARUKUVILA VEEDU,
AVANAVANCHERRY VILLAGE,NEAR LMS JUNCTION,
ATTINGAL.
2 GOMATHY, D/O.MADHAVI,RESIDING AT DO.DO.
3 BAHULEYAN, S/O.VASAVAN, VILAYIL VEEDU,
NEAR LMS JUNCTION,AVANAVANCHERRY VILLAGE,
ATTINGAL.
4 SUDHAN, S/O.VELAYUDHAN,MANJAVILA VEEDU,
VELARKUDI,ATTINGAL P.O.
5 RAJENDRAN, S/O.GOVINDAN, CHARUVILA VEEDU,
EAST OF LMS CHURCH,ATTINGAL P.O.
6 RAJAN S/O.KARTHIYANI KEEZHATHIL VEEDU
NEAR LMS JUNCTION,ATTINGAL P.O.
7 SIVANANDAN, S/O.NARAYANAN MANJINATTU,
MELEVILA VEEDU,EAST OF LMS CHURCH,ATTINGAL P.O.
BY ADV. SRI.P.R.VENKETESH
RESPONDENTS (DEFENDANTS 1 TO 3, 5 TO 13 AND 15 TO 30 AND 32
TO 36):
1 KOLLAMPUZHA BHAGAVATHY TEMPLE TURST,
REPRESENTED BY SRI.CHELLAPPAN S/O.VASU,LEKSHMI
VILASOM,MUNICIPAL COLONY ROAD,VALIYAKUNNU,,
ATTINGAL P.O.
*2 CHELLAPPAN, S/O.VASU, LEKSHMI VILASOM,
MUNICIPAL COLONY ROAD,DO.DO.
(DIED. LR'S IMPLEADED)
A.S.No.35 of 2002 2
**3 RAGHAVAN, S/O.KOCHURAMAN,PARAVANVILAKATHU
VEEDU,KOLLAMPUZHA,ATTINGAL VILLAGE. (DELETED)
4 P.BHAGIRATHI,INDIRA VILASOM VEEDU,
NEAR GOVERNMENT HOSPITAL,VARKALA.
5 V.SUJA, DO.DO.
6 V.SUJU, DO.DO.
7 C.KUTTAPPAN, KALLUVILA VEEDU, DO.DO.
8 P.SADANANDAN, MUNDAYIL PAZHAVILA VEEDU,
VARKALA.
9 YESODHA, DO.DO.
10 Y.VALSALA, DO.DO.
11 Y.OMANA, DO.DO.
12 N.THANKAMMA, MUNDAKKAL PAZHAVILA VEEDU,
VARKALA.
13 A.LEENA, DO.DO.
14 V.VASUKI, DO.DO.
15 V.PRABHAVATHI, DO.DO.
16 PRASANNAN, DO.DO.
17 SOMARAJAN, DO.DO.
18 G.ANILKUMAR, MANJAVILA VEEDU, VELARKUDI
ATTINGAL.
19 P.PUSHPANGADAN CHARUVILA VEEDU,
NEAR GOVERNMENT HOSPITAL,VARKALA.
A.S.No.35 of 2002 3
20 K.SUSHAMA, NEAR MAHADEVA TEMPLE,
KILIMANOOR.
21 P.REGHU, RADHA BHAVAN, CHITTILAZHIKAM,
CHARUPARA,KILIMANOOR.
22 K.S.BINU, PANAYIL VEEDU, AANAVANCHERRY,
ATTINGAL.
23 S.SIVAKUMAR, MULAKKAL THOTTAM VEEDU,
KAYIKKARA NEDUNGANDA.
24 A.PREMKUMAR, KESAVA MANDIRAM VEEDU,
CHILAKKUR,VARKALA.
***25 N.BHARGAVI, PANDARAMVILA VEEDU,
NEAR KOLLAMPUZHA KADAVU,ATTINGAL.
(DECEASED AND STRUCK OFF)
26 R.RAVI, VAYALIL VEEDU, AZHOOR,
CHIRAYINKEEZH.
27 S.GOPAN, PUTHUVAL PUTHEN VEEDU,
TC NO.32/217,MADHAVAPURAM,VELI,
THIRUVANANTHAPURAM.
28 B.KUMAR, DO.DO.
29 N.RAMACHANDRAN, VASANTHA VILASAM VEEDU,
MISSION MUKKU.
30 G.SADASIVAN ANIL BHAVAN, ARASUPARAMBU,
NEDUMANGADU.
31 K.G.RAMACHANDRAN, RAJESWARI BHAVAN,
KOPPAM THADAM,DO.
32 G.SUKUMARAN, KAKKAPURA VEEDU, KOLLAMKAVU,
NEDUMANGADU.
33 KOCHURAMAN KESAVANKUTTY, THOPIL PUTHEN VEEDU,
MANGALAPURAM,MUNDAKKAL MURI,VEILOOR VILLAGE.
ADDL.R34 TO 37 IMPLEADED:
ADDL. BIJUKUMAR, AGED 29 YEARS, SON OF CHELLAPAN,
R34 RESIDING AT LEKSHMI VILASAM, MUNICIPAL COLONY
ROAD, VALIYAKUNNU, ATTINGAL P.O.,
THIRUVANANTHAPURAM.
A.S.No.35 of 2002 4
ADDL. SASIKUMAR, AGED 28 YEARS, SON OF LATE CHELLAPPAN,
R35 DO. DO.
ADDL. SEEMA, AGED 24 YEARS, D/O.LATE CHELLAPPAN, DO. DO.
R36
ADDL. SANTHOSHKUMAR, AGED 24 YEARS, SON OF LATE
R37 CHELLAPPAN, DO. DO.
*THE ABOVE LEGAL REPRESENTATIVES OF THE DECEASED R2
ARE IMPLEADED AS ADDITIONAL RESPONDENTS 34 TO 37 AS
PER ORDER DTD.22/2/12 IN IA.511/04.
**R3 IS DELETED FROM THE PARTY ARRAY AND IT IS
RECORDED THAT NO LEGAL REPRESENTATIVES OF THE
DECEASED R3 NEED BE BROUGHT TO THE PARTY ARRAY AT
THE RISK OF THE APPELLANT - VIDE ORDER DT.11/7/06
ON IA.1831/06
***THE NAME OF R25 IS STRUCK OFF FROM THE PARTY
ARRAY AT THE RISK OF THE PETITIONER - VIDE ORDER
DATED 6/9/05 ON IA.2765/05
R1, R34 TO R36 BY ADV.SRI.G.S.REGHUNATH
R37 BY ADVS.SRI.M.BALAGOVINDAN
SRI.S.SUDARSANA BABU
R4 TO R13, R16, R18 TO R21 AND R29
BY ADVS.SRI.P.V. NEELAKANTA PILLAI
SRI.M.DINESH
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21.01.2019, THE
COURT ON 13.02.2019 DELIVERED THE FOLLOWING:
A.S.No.35 of 2002 5
A.HARIPRASAD, J.
--------------------------------------
A.S.No.35 of 2002
--------------------------------------
Dated this the 13th day of February, 2019
JUDGMENT
Plaintiffs in O.S.No.76 of 1993 before the Court of Subordinate Judge, Attingal are the appellants. Predominant prayer in the suit is to frame a scheme for administration of the affairs of a temple known as Kollampuzha Paravan Vilakathu Bhagavathy Temple. Apart from the above prayer, removal of the defendants, who are functioning as trustees from their office, appointing new trustees, rendition of accounts, etc. are also claimed.
2. Gist of allegations in the pleadings are as follows:
Plaint schedule properties have an extent of 1.6 acres of dry land and 31 cents of wet land and structures thereon. The structures include kizhakkakath, vadakkakath, bhagavathy temple, nagarkavu, thekkakath, moorthinada, bhandarappura, kuzhippura, trees, well, etc. It is asserted in the plaint that these properties and the structures thereon belonged to Chozhaka Samudayam (Community), most popularly known as Paravars of Chirayinkeezhu Taluk. The predecessors-in-interest of the plaintiffs and all the members of Chozhaka Community of Chirayinkeezhu Taluk contributed money and utensils for the A.S.No.35 of 2002 6 benefit of the deity, viz. Kollampuzha Paravan Vilakathu Bhagavathy. Patta for the plaint schedule properties was issued in the name of Neelan Kumaran for and on behalf of the Community as tax free. Neelan Kumaran conducted poojas in the temple till his death. After his death, some of the elder members of the Community took up management of the plaint schedule properties and temple.
3. Subsequently they committed waste by cutting and removing trees from the plaint schedule property. Alleging that reason, one Padmanabhan Anandan instituted O.S.No.869 of 1118 ME before the District Munsiff's Court, Attingal for a declaration that the plaint schedule properties and temple belonged to Chozhaka Community of Chirayinkeezhu Taluk. The suit was one filed under Order I Rule 8 of the Code of Civil Procedure, 1908 (in short, "Code"). It was decreed by the District Munsiff, Attingal on 15.03.1950. A.S.No.791 of 1950 was preferred before the District Court, Thiruvananthapuram. District Court dismissed the appeal on 21.03.1951 confirming the judgment and decree of the trial court. Decree in the appeal has become final. So, title to the plaint schedule properties and temple was declared in favour of Chozhaka Community of Chirayinkeezhu Taluk.
4. Plaint schedule properties have been dedicated to the deity by the Community. By custom, long usage and course of conduct it has become a public religious trust. The trust is arrayed as the 1 st defendant in the suit.
A.S.No.35 of 2002 7
5. According to the plaint case, the defendants 2 to 4, who are members of the Chozhaka Community, now conduct management of the plaint schedule properties and temple as trustees. It is alleged that the entire Chozhaka Community of Chirayinkeezhu Taluk entrusted the defendants 2 to 4 to manage the affairs of the deity and the plaint schedule properties from 1983 onwards. From 1990 onwards, the defendants 2 to 4 started committing misappropriation of funds and offerings made to the temple. They did not even care to convene meetings of the trust members. Therefore their actions amounted to a breach of trust. They are not maintaining true accounts regarding income and expenditure of the temple. Therefore, the suit is filed for the aforementioned reliefs.
6. In the written statement filed by the defendants, the entire plaint claims are denied. It is admitted that the defendants 2 to 4 are members of Chozhaka Community, residing in Chirayinkeezhu Taluk. However, they contended that 1.6 acres of garden land and 31 cents of paddy field and the temple thereon do not belong to Chozhaka Samudayam. It is their specific case that the properties belonged to Paravan Vilakam family. Allegation in the plaint that worshipers have contributed money and utensils for the use of the temple is denied since there is no record to prove the same.
7. As the properties belonged to Paravan Vilakam family, it was included in the family partition deed dated 27.11.1100 ME and the A.S.No.35 of 2002 8 properties were set apart in common. It is stipulated in the partition deed that the eldest male member in the family has to conduct poojas and other rituals in the temple. The Government issued patta in the name of the eldest male member of Paravan Vilakam family and as such he was administering the properties and temple. Initially Neelan Kumaran, the pattadar, conducted affairs of the temple. After his death, Ayyan Palppan managed the temple. Thereafter Madhevan Kumaran and after his death, Kumaran Eachan administered the temple in the order of seniority. Thereafter, Narayanan Govindan started administering the temple. On his death Kunhusankaran and after his death, now the 3rd defendant conducts administration of the temple. Members of the Chozhaka Community as such have no right in the administration of the temple.
8. It is true that Padmanabhan Anandan had filed O.S.No.869 of 1118 ME. In that suit Madhevan Kumaran was the sole defendant. He died pending suit and his legal representatives were impleaded as defendants 2 and 3. The dispute in that suit was regarding a mango tree. The suit was decreed exparte. No appeal was preferred. No publication, as required under Order I Rule 8 of the Code, was effected. None of the members of Paravan Vilakam family was made parties to the suit. The decree in the above suit does not bind the members of Paravan Vilakam family.
9. After the above suit, O.S.No.14 of 1954 was filed before A.S.No.35 of 2002 9 the Munsiff's Court, Attingal by some members of the Chozhaka Community against the members of Paravan Vilakam family. That was a suit filed for establishing the community right over the properties and temple. 3rd defendant in the above suit was the eldest male member of Paravan Vilakam family at that time, viz. Kumaran Eachan. Accepting his contentions the suit was dismissed confirming the rights of Paravan Vilakam family over the properties and the temple. That was a suit filed under Order I Rule 8 of the Code. The decree in force and binding on the parties is the decree in O.S.No.14 of 1954.
10. This suit is barred by res judicata. Contention that the members of the Community dedicated property to the deity is incorrect. The properties belong to Paravan Vilakam family and it lies in joint right to all the family members. It is not a public trust as claimed in the plaint.
11. On the side of the plaintiffs four witnesses testified. There was no defence evidence. Exts.A1 to A9 and B1 to B11 are the documents produced by the contesting parties.
12. Court below raised material issues arising out of the pleadings. After appreciating the evidence, the court below entered a specific finding that the plaintiffs failed to prove any right of the community to manage the plaint schedule properties and also the existence of a public trust as alleged. It therefore found that framing a scheme was not legally possible. Hence the suit was dismissed. A.S.No.35 of 2002 10
13. Heard the learned counsel for the appellants and respondents.
14. Learned counsel for the appellants contended that the decree passed by the court below is faulty on many grounds. Court below decided issue No.2 wrongly ignoring the materials placed to find that the 1st defendant is a public religious trust. It is also the contention of the appellants that the court below should have held that the Chozhaka Community of Chirayinkeezhu Taluk has a right to administer the temple in dispute. It is the case of the appellants that Exts.A1 to A4 conclusively establish that the 1st defendant temple belongs to Chozhaka Community of Chirayinkeezhu Taluk. Further, the appellants contended that the court below misread Exts.A6 and A7 to find that the temple belonged to a family.
15. Per contra, learned counsel for the respondents supported the judgment of the trial court by contending that oral evidence adduced on the plaintiffs' side is highly insufficient to establish their case. Actually the oral evidence would destroy the case pleaded in the plaint. Documents in respect of the previous litigations and those kept by the revenue officers would clearly establish that the temple and landed properties belonged to Paravan Vilakam family and public has no right of administration.
16. My attention was drawn to the deposition of PW1 who is the 2nd plaintiff. In the chief examination she stated that although patta A.S.No.35 of 2002 11 in respect of the properties was issued in the name of Neelan Kumaran, it was for the benefit of the temple. She further deposed that after his death, elders among the Community were administering the temple. But, in cross examination she admitted the defence case that the persons named in the written statement belonging to Paravan Vilakam family administered the temple and its properties in succession. In otherwords, PW1 did not depose as to any other person outside the family ever administered the temple. She admitted in cross examination that she had not seen any document to believe that the property and temple belonged to Chozhaka Community. She feigned ignorance in respect of the alleged public contribution made to the temple. 3 rd defendant is also a member of Paravan Vilakam family. PW1 admitted that he was impleaded in the suit as he, as an elder one in the family, is administering the temple. On a careful reading of PW1's testimony, I am of the view that the trial court is right in holding that she did not establish the case pleaded in the plaint.
17. PW2 is a member of Parava Community. According to his chief examination, the eldest male member in the Community used to administer the temple. In cross examination, he admitted that who entrusted the temple administration to the 2 nd defendant was not known to him. When the 2nd defendant did start administering the temple was also not known to him. On going through his cross examination, it is evident that he is not aware of the details regarding administration A.S.No.35 of 2002 12 hitherto happened in the temple.
18. PW3 is yet another member of the Community. When cross examined, he deposed that his knowledge regarding temple is limited to the events after 1975. At the time of cross examination, he deposed that he demanded the defendants to form a committee as if the temple was a trust. According to the learned counsel for the respondents, his admission would show that the family members, who administered the temple, never recognized the existence of any trust. It is therefore contended that testimony of this witness goes against the pleadings.
19. PW4 clearly admitted in cross examination that after Neelan Kumaran, eldest male members in his family administered the temple. In fact his evidence justifies the defence case.
20. One of the contentions raised by the learned counsel for the appellants is that the defendants failed to adduce any oral evidence to establish their contentions. In answer to this argument, learned counsel for the respondents submitted that on scanning through the oral evidence adduced by the plaintiffs, it will be clear that they utterly failed to prove the case set up by them in the plaint. It is therefore contended that there was no occasion for the defendants/respondents to adduce evidence as the plaintiffs themselves miserably failed to prove the case pleaded. On a re-appreciation of the entire evidence, I am of the view that the lower court is justified in finding that the plaintiffs A.S.No.35 of 2002 13 failed to prove the case pleaded in their pleadings.
21. Exts.A6 and A7 are the relevant documents. They are extracts of settlement register in respect of the properties included in Attingal Pakuthi of Chirayinkeezhu Taluk of erstwhile Travancore State. Ext.A6 shows that 31 cents of paddy field was given by the then Travancore Government in the name of Paravan Neelan Kumaran for and on behalf of Kollampuzha Paravan Vilakathu Bhagavathy. Similarly an extent of 1.6 acres garden land was given for Paravan Vilakathu Bhagavathy Kovil in the name of Paravan Neelan Kumaran. On a perusal of Ext.A7, it can be seen that the settlement register shows grant of property in the name of Neelan Kumaran for Kollampuzha Paravan Vilakathu Bhagavathy. Admittedly, 'Kollampuzha' is the name of place where the land is situate. 'Paravan Vilakam' indisputably is a family name. That fact is evident from the pleadings as well as from material documents. Witnesses on the side of the plaintiffs also admit that Neelan Kumaran and other persons who were administering the temple belonged to Paravan Vilakam family. In the light of these facts, it has been argued by the learned counsel for the respondents that Exts.A6 and A7 would clearly show that the properties were given by the then Government of Travancore State to the Paravan Vilakam family for maintaining a Bhagavathy temple which was in existence from time immemorial.
22. It is also contended by the learned counsel for the A.S.No.35 of 2002 14 respondents that the case pleaded in the plaint has been exploded by the recitals in Exts.A6 and A7. What is pleaded in paragraph 4 of the plaint is that patta for the plaint schedule properties was issued in the name of Neelan Kumaran for and on behalf of the Community and the property was granted tax free. In paragraph 6 of the plaint, it is mentioned that the plaint schedule properties have been dedicated by the Community in favour of the deity. According to the learned counsel for the respondents, these contentions are belied from the recitals in Ext.A6. There was no occasion for the members of the Community to dedicate the properties in the name of Paravan Vilakathu Bhagavathy as it is evident from Exts.A6 and A7 that even before grant of patta in favour of Neelan Kumaran, who was a member of Paravan Vilakam family, the temple was in existence. It is contended that the then Government granted patta in favour of the head of Paravan Vilakam family reckoning the fact that the land was used for maintaining a temple and its appendages. I am of the view that Exts.A6 and A7 go against the case pleaded in the plaint. Court below rightly placed reliance on these documents to non-suit the plaintiffs.
23. Ext.B8 is an agreement executed among the members of Paravan Vilakam family on 27.10.1100 ME (corresponding to 1925 AD). Learned counsel for the respondents contended that Ext.B8 clearly shows the manner of administration of properties right from 1925. The right of family in respect of administration of the temple is clearly spelt A.S.No.35 of 2002 15 out from the document. Ext.B8 fortifies the existence of a family by name Paravan Vilakam and therefore it substantiates the contentions in the written statement. I find some substance in the argument.
24. Learned counsel for the appellants relied on Ext.A1 judgment. The judgment was rendered in O.S.No.869 of 1118 ME by the District Munsiff, Attingal. From description of the parties shown in the judgment, it will be clear that one Padmanabhan Anandan filed the suit against Madhevan Kumaran and others. The suit was one for declaration of the plaintiff's title to and right to possession of the plaint schedule property and temple and also for recovery of value of a mango tree unlawfully cut and removed by the deceased 1st defendant. Plaintiff's case was narrated in the judgment. According to the plaint case, Bhagavathy temple and the property belonged to Chozhaka Community of Chirayinkeezhu Taluk. The same had been gifted to the said Community by Travancore Sarkar free of tax. The plaint proceeded by stating that ancestors of the plaintiff were managing the affairs and assets of the temple. After the plaintiff's ancestors, plaintiff himself succeeded to their rights. Deceased 1st defendant was appointed as servant in the temple by the plaintiff's Karanavan (elder). It is the allegation that after the plaintiff succeeded to the management of the temple and its properties, the 1st defendant cut and removed a mango tree from the plaint schedule property. The suit was to declare the plaintiff's title and right to possess the property as a member of A.S.No.35 of 2002 16 Chozhaka Community. The suit was decided exparte in favour of the plaintiff. It is therefore contended by the learned counsel for the appellants that the defendants are estopped from denying the public right set up by the appellants. But none of the members in Paravan Vilakam family was impleaded therein.
25. Ext.A2 is the decree in the suit. Ext.A4 is the judgment by the District Court, Thiruvananthapuram in A.S.No.791 of 1950, an appeal filed against the decree in O.S.No.869 of 1118 ME. 3rd defendant in the suit preferred the appeal. The appeal was dismissed confirming the judgment and decree of the trial court observing that the temple and property belonged to Chozhaka Community. These are the documents relied on by the learned counsel for the appellants to contend that the court below ignored the relevant documents without justification.
26. Ext.B1 is the copy of judgment in O.S.No.14 of 1954 before the Munsiff's Court, Attingal. The same plaintiff in O.S.No.869 of 1118 ME had filed this suit also. Ext.B1 shows that the suit was one for declaration of the plaintiff's title and possession over the properties and for recovery, in case the defendants' trespass was established. It was averred in the plaint that after death of Neelan Kumaran, the plaintiff came into possession of the property as his legal representative and kept possession and enjoyment of the plaint property. After considering the rival contentions, the court found that plaintiff's only case was that A.S.No.35 of 2002 17 patta for the plaint property was granted in the name of Neelan Kumaran for and on behalf of Chozhaka Community. The court understood the contention of the plaintiff that he had set up ownership over the property in the Chozhaka Community and not in Neelan Kumaran. On appreciation of evidence, court repelled the plaintiff's case and entered a finding that the plaintiff was not a member of the tarwad of Neelan Kumaran and that he had no right over the plaint property. The suit was therefore dismissed. Learned counsel for the respondents heavily relied on this judgment.
27. Another document relied on by the learned counsel for the respondents is Ext.B9, judgment in O.P.(Trust) No.161 of 1991 before the District Court, Thiruvananthapuram. The judgment shows that a petition under Section 92 of the Code was filed for leave by the petitioners to institute a suit against the counter petitioners for framing a scheme and other reliefs. It was contended by the contesting respondents that neither the petitioners nor members of Paravar Community have obtained any right over the temple and its properties and the right, if any, had been lost by adverse possession and limitation. Administration of the temple and its properties vested with Neelan Kumaran and members of Paravan Vilakam family. After considering all the contentions, the Additional District Judge dismissed the petition finding that prayer in the original petition could not be allowed for the sole reason that the petitioners described the A.S.No.35 of 2002 18 respondents as persons who have unauthorisedly came into possession and management of the temple. The judgment has become final. It is therefore contended by the learned counsel for the respondents that the declaration in Ext.A1 judgment that the property belonged to Chozhaka Community cannot be relied on, on account of the subsequent decisions in suits between the parties claiming interest.
28. It is also contended on behalf of the respondents that Ext.A1 suit was not a representative suit. It was a suit individually filed by Padmanabhan Anandan to vindicate his rights. No publication as contemplated under Order I Rule 8(2) of the Code was effected. Ext.A3, according to the learned counsel for the respondents, cannot be regarded as a publication required under Order I Rule 8(2) of the Code. Although the learned counsel for the appellants relied on Ext.A3 to contend that the Community right has been mentioned therein, it is evident that after death of the 1 st defendant in the suit, his legal heirs were sought to be impleaded and at that time, a publication was effected. On a careful scrutiny, it will be clear that the publication was not under Order I Rule 8(2) of the Code. There is no material on record to hold that Ext.A1 judgment was passed in a suit filed by Padmanabhan Anandan, in a representative capacity, as a member of the Chozhaka Community. Therefore, the court below cannot be blamed for repelling the contention that Ext.A1 judgment and Ext.A4 appellate judgment therein established a public right. It is to be A.S.No.35 of 2002 19 remembered that the same plaintiff in O.S.No.869 of 1118 ME, viz. Padmanabhan Anandan filed O.S.No.14 of 1954, as evidenced from Exts.B1 and B2, asserting an individual right or personal right which resulted in dismissal. Therefore, on facts I find that the plaintiffs failed to establish their case pleaded.
29. Learned counsel for the appellants relied on the decision in Shri Govindlalji v. State of Rajasthan (AIR 1963 SC 1638). The relevant portion is extracted.
".......... Where evidence in regard to the foundation of the temple is not clearly available, sometimes, judicial decision rely on certain other facts which are treated as relevant. Is the temple built in such an imposing manner that it may prima facie appear to be a public temple? The appearance of the temple of course cannot be a decisive factor; at best it may be a relevant factor. Are the members of the public entitled to an entry in the temple? Are they entitled to take part in offering service and taking Darshan in the temple? Are the members of the public entitled to take part in the festivals and ceremonies arranged in the temple? Are their offerings accepted as a matter of right? The participation of the member of the public in the Darshan in the temple and in the daily acts of worship or in the celebrations of festival occasions may be a very A.S.No.35 of 2002 20 important factor to consider in determining the character of the temple. In the present proceedings, no such evidence has been led and it is therefore, not shown that admission to the temple is controlled or regulated or that there are other factors present which indicate clearly that the temple is a private temple. .............."
Evidence in this case would clearly show that the plaintiffs have failed to establish any material to show that the public at any time administered the temple and contributed for upkeep of the temple. Therefore, the decision has no application to this case.
30. Learned counsel for the appellants placed reliance on the decision in Radhakanta Deb v. The Commissioner of Hindu Religious Endowments, Orissa (AIR 1981 SC 798) to contend that if it is proved that worship by the members of public was as of right, that may be a circumstance which may in some cases conclusively establish that the endowment was of a public nature. This proposition is unchallengeable. However, there is no material or evidence to accept the plaintiffs' case.
31. Learned counsel for the respondents relying on a plethora of decisions, challenged the contentions of the appellants. Since the plaintiffs failed to establish on facts the case pleaded, I do not find any necessity to elaborately deal with the decisions relied on by the learned counsel for the respondents as the basic facts could not be proved by A.S.No.35 of 2002 21 the plaintiffs to hold that the temple in question is a public temple. Considering the legal and factual issues, I am of the view that the court below was correct in finding that the plaintiffs failed to establish any right to get the reliefs claimed in the plaint. It is trite that when the view taken by the trial court is a plausible one and supported by reasons, the appellate court shall be loathe in interfering with the view taken by the first court. Applying the above principle, I find no reason to upset the decision taken by the trial Judge.
In the result, the appeal is dismissed.
There is no order as to costs.
All pending interlocutory applications will stand dismissed.
A.HARIPRASAD, JUDGE.
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