Kerala High Court
Sasidharan vs Madhu on 7 March, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 7TH DAY OF MARCH 2024 / 17TH PHALGUNA, 1945
RSA NO. 90 OF 2024
AGAINST THE DECREE AND JUDGMENT DATED 16.06.2023 IN A.S.NO.26/2021 ON
THE FILES OF THE COURT OF THE I ADDITIONAL DISTRICT JUDGE, ERNAKULAM
AROSE FROM THE DECREE AND JUDGMENT DATED 19.02.2021 IN
O.S.NO.1168/2016 OF THE COURT OF THE III ADDITIONAL MUNSIFF & RENT
CONTROLLER COURT, ERNAKULAM
APPELLANTS/APPELLANTS 1 TO 9/PLAINTIFFS 1,2,4 TO 9 AND 11:
1 SASIDHARAN
BUSINESS, AGED 68 YEARS, S/O LATE KRISHNAN VAIDYAR,
NADAPARAMBIL HOUSE, EROOR SOUTH PO, TRIPUNITHURA,
PIN - 682306
2 K.P.VELAYUDHAN
AGED 64 YEARS, S/O LATE PADMANABHAN, KALASSERI PARAMBIL,
MARKET JUNCTION, TRIPUNITHURA, PIN - 682301
3 SOMANATHAN
AGED 71 YEARS, S/O LATE KRISHNAN VAIDYAN,
NADAPARAMBIL HOUSE, EROOR SOUTH PO, TRIPUNITHURA,
PIN - 682306
4 JINAN
DRIVER, AGED 65 YEARS
S/O LATE KRISHNAN VAIDYAR, NADAPARAMBIL HOUSE,
EROOR SOUTH PO, TRIPUNITHURA, PIN - 682306
5 MUKUNDAN
DRIVER, AGED 64 YEARS, S/O LATE KRISHNAN VAIDYAR,
NADAPARAMBIL HOUSE, EROOR SOUTH PO, TRIPUNITHURA,
PIN - 682306
6 JAYAKRISHNAN
AGED 34 YEARS, S/O PADMANABHAN, NADAPARAMBIL HOUSE,
EROOR SOUTH PO, TRIPUNITHURA, PIN - 682306
7 KRISHNANDAS
AGED 35 YEARS, S/O SOMANATHAN, NADAPARAMBIL HOUSE,
EROOR SOUTH PO, TRIPUNITHURA, PIN - 682306
8 HARIKRISHNAN
AGED 32 YEARS, S/O JINAN, NADAPARAMBIL HOUSE,
EROOR SOUTH PO, TRIPUNITHURA, PIN - 682306
9 THAMPI
AGED 61 YEARS, S/O LATE PADMANABHAN KALASSERI PARAMBIL,
MARKET JUNCTION, TRIPUNITHURA, PIN - 682306
R.S.A. No. 90 of 2024
2
BY ADVS.
T.KRISHNANUNNI (SR)
MEENA.A.
VINOD RAVINDRANATH
M.R.MINI
K.C.KIRAN
M.DEVESH
ANISH ANTONY ANATHAZHATH
THAREEQ ANVER K.
NIVEDHITHA PREM.V
RESPONDENTS/RESPONDENTS AND 10TH APPELLANT/DEFENDANTS AND 12TH
PALINTIFF:
1 MADHU,
S/O LATE PADMANABHAN, AGED 44 YEARS
THANATHARAYIL VEEDU, EROOR NORTH PO, TRIPUNITHURA,
PIN - 682306
2 ANIL
AGED 41 YEARS
S/O LATE BHAGEERATHAN, CHAITHANYA HOTEL, TRIPUNITHURA,
PIN - 682301
3 VISHNU VELAYUDHAN
AGED 35 YEARS
S/O VELAYUDHAN, KALASSERI PARAMBIL, MARKET JUNCTION,
TRIPUNITHURA, PIN - 682301
THIS REGULAR SECOND APPEAL HAVING COME UP FOR JUDGMENT ON
07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. No. 90 of 2024
3
JUDGMENT
Dated this the 7th day of March, 2024 This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure ("CPC" hereinafter) challenging the decree and judgment in A.S. No.26 of 2021 dated 16.06.2023 on the files of the Court of the I Additional District Judge, Ernakulam arose from the decree and judgment in O.S. No.1168 of 2016 dated 19.02.2021 on the files of the III Additional Munsiff Court, Ernakulam. The appellants herein are plaintiffs 1, 2, 4 to 9 and 11 and respondents are the defendants as well as the 12th plaintiff in the above suit.
2. Heard Adv.T. Krishnanunni, learned senior counsel for the appellants, on admission. Perused the verdicts under challenge as well as Ext.A1 partition deed and the copies of the plaint and written statement.
3. I shall refer the parties in this appeal with reference to their status before the trial court.
4. In this matter, plaintiffs filed the suit representing the deity of Parambath Vadakkan Chowa Bhagavathy Temple R.S.A. No. 90 of 2024 4 situated in the plaint schedule property, having an extent of 14 cents in Survey No.705/2 of Nadama Village, specifically set apart in Ext.A1 partition deed No.927/1971 of S.R.O. Tripunithura, executed between children of late Velu Ashan, the predecessor of plaintiffs and defendants. According to the plaintiffs, at the time of execution of Ext.A1 partition deed, plaint C schedule property having an extent of 52 cents was set apart to the share of Sri.Padmanabhan. Plaint D schedule property having an extent of 14 cents wherein the temple is situated was separately allotted to the share of Sri.Padmanabhan and he was permitted to take income therefrom and use the same for the poojas of the temple. After the death of Sri.Padmanabhan, the said right devolved upon Sri.Bageerathan, the elder male member of the family. But he was not interested in the affairs of the temple. Thus, Sri.Ramachandran, who is the son of Sri.Damodharan, who is the brother of Sri.Padmanabhan has been managing the affairs of the temple. Thereafter, pursuant to the death of Sri.Bhageerathan, the 1st defendant, who is the son of late Padmanabhan assumed control of the temple. The 2 nd defendant, who is the son of late Bhageerathan, was R.S.A. No. 90 of 2024 5 supporting the 1st defendant in the administration of the temple. The plaintiffs' case is that the defendants, who are presently doing things in an autocratic manner, are not following the letter and spirit of the partition deed. Therefore, for the effective administration of the temple, a by-law is to be framed. Thus, the relief of framing a scheme for the effective management and administration and mandatory injunction commanding the defendants to convene a general body meeting of the members to approve by-law, for the effective management and administration of the temple by appointment of an Advocate Commissioner to prepare voters list was sought for. Consequently, prohibitory injunction also was prayed for.
6. Defendants filed written statement and resisted the suit, mainly raising contentions as averred in paragraph No.2 of the written statement. The same is us under:
"All the allegations paragraph 1 to 3 are not fully correct hence denied by defendants. Plaintiff is not competent to file the above suit on behalf of the deity of Parambath Vadakkan Chowa Bhagavathy Temple. As per partition deed No: 927/1971, the D schedule R.S.A. No. 90 of 2024 6 having the extent of 14 cents wherein the temple is situated was allotted to Padmanabhan. Padmanabhan became the absolute owner and administration of land and temple. Allegation in para 1 of the plaint that as per partition deed, after the life time of Padmanabhan the male springs in the Thavazhy of the parties 2, 3 and 4 of the partition deed alone were vested with the administration and alienation of temple properties is false hence denied. Suit is bad for misjointer of unnecessary parties. Plaintiffs have no manner of right over the administration of temple nor has any right over the temple property. There is no express trust or constructive trust with respect to the temple and the property. It is neither a private trust. Therefore this Hon'ble court is not having jurisdiction to entertain the above suit. The temple is now being effectively managed by defendants. An elected managing committee for the administration of the temple is not at all necessary. 10 th plaintiff, Ramachandran, has not signed or verified the plaint and on that account the above suit has to be dismissed. Plaintiffs also performed 'bali' till 2015. It is clear from the R.S.A. No. 90 of 2024 7 recitals in page 5 of the partition deed the temple, its properties and its administration is vested with Padmanbhan and after his life time his elder son will have all rights over the temple including the income. After the death of Padmanabhan, the temple and property devolved upon his elder son Bhageetharan. After death of Bhageetharan the said right devolved upon his elder son the 2nd defendant. Now 2nd defendant is the absolute owner and person in possession of the temple and the properties. No other person has any manner of right over the temple, its property, income and administration. At present 2nd defendant authorized his uncle, 1st defendant with the management of the temple and he is performing his duties very well."
7. The trial court recorded evidence and tried the matter after addressing rival contentions. PW1 examined Ext.A1 marked on the side of the plaintiffs. DWs 1 and 2 examined and Ext.B1 marked on the side of the defendants. Exts.C1 series also marked as court exhibits.
8. Finally, the learned Munsiff found that the plaintiffs failed to establish mismanagement and maladministration in R.S.A. No. 90 of 2024 8 the functioning of the temple and accordingly the suit was dismissed with cost of the defendants.
9. Though, appeal was filed before the Appellate Court, vide A.S. No.26/2021, the Appellate Court also re- appreciated the evidence and upheld the finding of the trial court. But, no cost was ordered.
10. While assailing the concurrent verdicts, the learned senior counsel for the appellants submitted that inasmuch as the contention raised by the defendants to the effect that the plaintiffs are not competent to file the suit on behalf of the deity of the temple, as per Ext.A1 partition deed the administration of the temple was entrusted by the parties to Sri.Padmanabhan. The plaintiffs and defendants are successors of parties to Ext.A1. Thereby creation of a private trust is found in favour of the plaintiffs by the learned Munsiff, while answering issue No.1. Thus, the competence of the plaintiffs to institute the suit is established. But, the trial court as well as the Appellate Court refused to grant further reliefs, though such reliefs are absolutely essential for the proper administration of the temple. It is pointed out by the learned senior counsel further that the defendants are administering R.S.A. No. 90 of 2024 9 the temple as against the customs prevailing. It is pointed out that "karkkidaka vavubali" was permitted in the temple which is normally not permissible in a Bhagavathy temple.
11. While addressing the arguments advanced by the learned senior counsel for the appellants, canvasing admission of this appeal raising substantial question of law, it is relevant to note that as per Ext.A1 partition deed, 14 cents of property was set apart towards the share of Sri.Padmanabhan and he was given the power of administration of the temple also. It was specifically covenanted in Ext.A1 that after the death of Sri.Padmanabhan, the eldest male member of his family would have the right of administration of the temple. Now, the defendants have been administering the temple in tune with the spirit of Ext.A1 partition deed.
12. The trial court as well as the Appellate Court concurrently found that no incidents of mismanagement or maladministration established by the plaintiffs so as to grant the reliefs sought for. It was also found by the trial court that, DW2 during her examination, even denied the right of the plaintiffs over the plaint schedule property and the temple R.S.A. No. 90 of 2024 10 and deposed that the defendants are managing the temple in proper way.
13. On meticulous reading of the recitals in Ext.A1, Sri.Padmanabhan was initially entrusted with the administration and maintenance of the temple and the so called right conferred upon Sri.Padmanabhan was bestowed upon the eldest male member of the family, after the death of Sri.Padmanabhan. Now, the eldest male member has been administering the temple. In fact, Ext.A1 does not provide for formation of a by-law or administration of the temple by a committee. As per the available materials, no maladministration could be noticed and that the administration of the temple is going on in terms of Ext.A1 partition deed. Therefore, none of the reliefs sought for by the plaintiffs are liable to be granted as rightly found by the trial court as well as the Appellate Court. Thus, the concurrent verdicts of the trial court and the Appellate Court do not require any interference at the hands of this Court.
14. In view of the above discussion, no substantial question of law emerges in this matter to be formulated to maintain and admit this regular second appeal. Order XLII R.S.A. No. 90 of 2024 11 Rule 2 of CPC provides thus:
"2. Power of Court to direct that the appeal be heard on the question formulated by it.-At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100."
15. Section 100 of CPC provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial R.S.A. No. 90 of 2024 12 question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso stipulates that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.
16. In the decision reported in [2020 KHC 6507 :
AIR 2020 SC 4321 : 2020 (10) SCALE 168] Nazir Mohamed v. J. Kamala and Others, the Apex Court held that:
The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. In R.S.A. No. 90 of 2024 13 Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722].
17. In a latest decision of the Apex Court in Government of Kerala v. Joseph, reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], it was held, after referring Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three - Judge Bench), as under:
For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well - established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court.
18. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of CPC, the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' R.S.A. No. 90 of 2024 14 means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of CPC must be complied to admit and maintain a second appeal.
19. In this matter, no substantial question of law arises for consideration so as to admit this second appeal. It is the well settled law that a second appeal involving no substantial question of law cannot be admitted. Therefore, the decree and judgment under challenge do not require any interference and no substantial question of law to be R.S.A. No. 90 of 2024 15 formulated to adjudicate in this regular second appeal.
20. Accordingly, this regular second appeal stands dismissed, without being admitted, as indicated above.
All interlocutory applications pending in this regular second appeal stand dismissed.
Sd/-
A. BADHARUDEEN JUDGE SK