Kerala High Court
Xavier Ommen vs The Travancore Devaswam Board
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY,THE 24TH DAY OF MAY 2017/3RD JYAISHTA, 1939
SA.No. 290 of 2001 (A)
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AGAINST THE DECREE AND JUDGMENT DATED 18-09-2000 IN AS NO. 22/1994 of
ADDITIONAL DISTRICT COURT,ALAPPUZHA.
AGAINST THE DECREE AND JUDGMENT DATED 13.10.1993 IN OS NO. 653/1990 of
PRINCIPAL MUNSIFF'S COURT,ALAPPUZHA
APPELLANTS/RESPONDENTS/DEFENDANTS:
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1. XAVIER OMMEN, S/O.JOSEPH OMMEN, PULIKKEEKALATHIL,
VAZHAPALLY MURI, VAZHAPALLY VILLAGE, CHANGANASSERY.
2. SEBASTIAN, S/O.JOSEPH OMMEN, PULIKKEEKALATHIL,
MUTTAR VILLAGE, MUTTAR MURI.
3. MATHEW,S/O.JOSEPH OMMEN, PULIKKEEKALATHIL,
MUTTAR VILLAGE, MUTTAR MURI.
4. JOSEPH, S/O.JOSEPH OMMEN, PULIKKEEKALATHIL,
MUTTAR VILLAGE, MUTTAR MURI.
5. ANNAMMA OMMEN, W/O.JOSEPH OMMEN, PULIKKEEKALATHIL,
MUTTAR VILLAGE, MUTTAR MURI.
6. SARAMMA, D/O.JOSEPH OMMEN, PULIKKEEKALATHIL,
MUTTAR VILLAGE, MUTTAR MURI.
7. THANKAMMA, D/O.JOSEPH OMMEN, PULIKKEEKALATHIL,
MUTTAR VILLAGE, MUTTAR MURI.
8. AELAMMA, D/O.JOSEPH OMMEN, PULIKKEEKALATHIL,
MUTTAR VILLAGE, MUTTAR MURI.
BYADVS. SRI.M.JACOB MURICKAN
SRI.DINESH MATHEW J.MURIKAN
RESPONDENT/APPELLANT/PLAINTIFF:
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THE TRAVANCORE DEVASWAM BOARD, NANTHANCODE,
THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.
BYADVS. SRI.V.KRISHNA MENON
SRI.V.V.NANDAGOPALAN NAMBIAR
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29.03.2017, THE
COURT ON 24.05.2017 DELIVERED THE FOLLOWING:
A.HARIPRASAD, J.
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S.A. No.290 of 2001
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Dated this the 24th day of May, 2017
JUDGMENT
Defendants in a suit for declaration of plaintiff's title to the property and for perpetual prohibitory injunction succeeded in the trial court, but lost in the lower appellate court. Hence they are in second appeal.
2. Pleadings, in nutshell, are thus: Respondent/plaintiff is an incorporated body constituted under the Travancore-Cochin Hindu Religious Institutions Act, 1950 (in short, "the Act"). Plaint schedule property belongs to and vested with the plaintiff Devaswom Board (in short, "Board"). The Board is competent to regulate management of the same in view of the provisions contained in the Act. Several lands belonging to and vested with the Board have been given in possession to various persons for rendering services to the temples managed by the Board. Their possession is directly linked to the services rendered and without doing any service, they are not entitled to hold land. The property in the plaint schedule was given as service tenure for doing services to Muttar Koottummel Ganapathy Temple. The person to whom the land was given in possession for rendering services to the temple (known as karanma holder) has no right to transfer or alienate the property without consent of the SA No.290 of 2001 2 Board. It is the allegation that contrary to the stipulations in the grant and the relevant provisions in the Act, the grantee of karanma right in respect of plaint schedule property had alienated the property without prior sanction of the Board. The appellants claim right and interest through the alienees of karanma holder. The appellants, not being Hindus, are not rendering any service to the temple nor they have any right to do service. As per the provisions of Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981 (in short, "the Act of 1981"), no karanma holder could exercise right in respect of the property, if he did not do any service to the temple. The appellants, who are not entitled to do any service to the temple, cannot enter the plaint schedule property on the ground that they acquired a right under a registered document. Proprietory right in the plaint schedule property still vests with the Board. As the appellants have no right, title or possession over the plaint schedule property, the respondent claimed the said reliefs against them on the assertion that the assignment in favour of the appellants is void abinitio.
3. The appellants/defendants filed a joint written statement contending that the suit is not maintainable as the plaintiff Board has no right or possession over the property. It is alleged that one Krishna Pillai got possession of the plaint schedule property by virtue of delivery in execution proceedings in O.S.NO.97 of 1098 ME of Munsiff's Court, SA No.290 of 2001 3 Thiruvalla. He thereafter sold the property as per a document of the year 1118 ME. While so, husband of 5th defendant and father of other defendants purchased the said property in the year 1976. He caused to effect mutation and was in possession of the property till his death. After his death, the appellants are in possession and enjoyment of the property. 10 cents in survey No.159/11 was obtained by the predecessor-in-interest of the appellants as per a partition deed of the year 1960. According to the appellants, respondent has no manner of right over 30 cents comprised in survey No.159/10/2. Appellants admitted that no service to the temple was rendered by them or their predecessor-in-interest. There was no stipulation to this effect in the court auction. Since the appellants are not Hindus, they are not bound to do any service to the temple. Provisions in the Act of 1981 will not bind the appellants nor the property in their possession. Respondent/plaintiff is not entitled to get any declaration or injunction as claimed.
4. The substantial questions of law arising are thus-
i. Whether the lower appellate court was right in holding that the predecessor-in-interest of the defendants (appellants herein) is a karanma holder, when he got the plaint schedule property as per the delivery ordered in O.S.No.97 of 1098 (M.E.) of the Munsiff's Court, Thiruvalla?
SA No.290 of 2001 4
ii. Whether the lower appellate court was right in holding that Ext.B3 sale deed executed by Gowri Amma and Kamalakshi Amma in favour of late Joseph Ommen is void abinitio?
iii. Whether the present suit is maintainable in view of the withdrawal of suit (O.S.No.164 of 1988) filed by the plaintiff (respondent herein) as evidenced by Ext.A7 decree?
iv. Whether the settlement register (Ext.A5) produced by the plaintiff (respondent herein) would be sufficient to establish title as regards the plaint schedule property?
v. Whether the suit is maintainable before a civil court in view of the provisions in Section 18 of the Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981, when the plaintiff (respondent herein) specifically contended that the plaint schedule property is service inam land?
5. Heard the learned counsel Sri.Dinesh Mathew J. Murikan, for the appellants and Sri.Krishna Menon, for the respondent.
6. Trial court dismissed the suit finding that the plaintiff failed to establish title to the property and also that the suit is barred by Section 18 of the Act of 1981. Lower appellate court reversed the finding of trial court and found that the suit is not hit by the provisions of the said Act. It further found that the plaintiff/respondent could establish title over the property and SA No.290 of 2001 5 also that the appellants failed to set up a valid derivation of title over the disputed property.
7. Sri. Dinesh Mathew J. Murikan, learned counsel for the appellants contended that the lower appellate court wrongly appreciated the evidence and erroneously upset a well considered judgment by the trial court. According to him, the lower appellate court lost sight of various provisions of the relevant statutes.
8. Before dealing with the statutes, I shall make a mention of certain proclamations by His Highness Maharaja of Travancore. Service Inams Proclamation of 1068 was made on 1st Edavam, 1068, corresponding to 13th May, 1893. It reads as follows:
"Whereas Inams attached to specific services of any description have, from their nature and immemorial usage, been recognized as inseparable; from the services for which they are granted, and inalienable; and whereas doubts have arisen as to the effect of paras 6 and 7 of Section 24 of the Royal Proclamation dated 24th February 1886 /14th Kumbhom 1061 in respect of such Inams; and whereas it is expedient in the interests of the services concerned to remove such doubts:
We are pleased to declare as follows:-
1. The provisions of paras 6 and 7 of Section 24 of the Royal Proclamation dated 24th February 1886/14th Kumbhom 1061 shall not be SA No.290 of 2001 6 taken to apply to Service Inams described in para 1 of the same Section.
2. All alienations of Inam lands attached to specific services of any description which have been or which may hereafter be made, contrary to past, usage shall be treated as null and void. And it shall be competent to Our Government to resume the lands so alienated and re-attach them to the services:
Provided that Our Government may, at its discretion, deal with the resumed lands and the services connected therewith in any other manner it may deem fit.
3. No Civil suit shall lie against Our Government in respect of anything done under the last preceding Section."
There are two other proclamations regarding Karanma Services, viz., Karanma Services Proclamation, 1088 M.E. and Karanma Services Proclamation, 1094 M.E. These two proclamations also deal with inalienability of the properties given for karanma services and also the power of Diwan to deal with such a situation.
9. The Board is constituted under the Act. Section 2(a) of the Act defines 'Board' as a Travancore Devaswom Board constituted under Chapter II of the Act. In Chapter II of the Act, vesting of administration of temples in the Board, constitution of Travancore Devaswom Board, etc. are SA No.290 of 2001 7 mentioned.
10. Learned counsel for the appellants has drawn my attention to various provisions in the Act of 1981. Section 2(f) of the Act of 1981 defines 'Service Inam Land' in the following terms:
"(f) "Service Inam land" means land held under a tenure to which some specific service or obligation in the shape of personal labour or supply of provisions is attached and includes land held under Viruthy, Oozhiyam, Karanma or Erayili tenure."
Section 7 enumerates the powers of Settlement Officer to issue notices and determine the compensation and purchase price. Section 18 says that no civil court will have jurisdiction to decide or deal with any question or to determine any matter which is, by or under this Act, required to be decided or dealt with or to be determined by any officer or authority under this Act. On a reading of the Section, it may appear that the bar created is absolute. It is therefore contended by the learned counsel for the appellants that the decision of the trial court based on this provision was perfectly legal.
11. Per contra, Sri.Krishna Menon, learned counsel for the respondent contended that Section 18 of the Act of 1981 has no application to the facts of this case. Moreover, Act of 1981 itself is inapplicable to this case. According to him, the contravention of various terms in the proclamation and the provisions in the Act disentitled the appellants' SA No.290 of 2001 8 predecessor-in-title to raise any contention of this sort. That apart, it is contended that title in respect of the property indisputably belongs to Muttar Koottummel Ganapathy Temple, which is being administered by the Board. The execution sale and delivery of possession taken pursuant thereto are matters not properly established by evidence and therefore, the appellants have no right to claim title to the property. In what way the Board was connected in the execution sale has not been shown by adducing any evidence. Besides, right of karanma holder could not have been sold pursuant to a decree by virtue of the prohibition contained in the proclamations.
12. For better understanding, I shall consider the rival contentions raised. Learned counsel for the respondent Board mainly relied on Ext.A2 series and Ext.A5. Ext.A2 series are puramboke registers and Ext.A5 is a copy of the settlement register. It can be seen from the caption to Ext.A5 that it is an extract pertaining to Muttar Pakuthi in Changanachery Taluk of erstwhile Travancore State. The property in survey No.159/10 belonged in jenm to Koottummel Ganapathy Temple. Name of pattadhar shown is Muttarmuriyil Pilaveliyil Veettil Sankaran Easwaran and Pilaveliyil Sankaran Raman. On the basis of Ext.A5, it is argued by the learned counsel for the respondent that the appellants cannot be heard to contend that the property never belonged to the Board. From the description in Ext.A5, it SA No.290 of 2001 9 can be seen that Koottummel Ganapathy Temple was managed by Travancore Government. Contention raised by the respondent is that by virtue of Section 27 of the Act, all the immovable properties entered or classified in the revenue records as Devaswom vaga or Devaswom puramboke and such other pandaravaga lands or in the possession or enjoyment of Devaswom mentioned in Schedule I after 12th April, 1922 shall be dealt with as Devaswom properties. Section 28 of the Act deals with the Board's control over karanma services. It reads as follows:
"Board's control over Karanma services.-
(1) The Board shall have absolute control over the holders of all Karanma services and also over all the properties, Thiruppuvarams and other emoluments attached thereto.
(2) Whenever it is reported that owing to incompetency, negligence or other cause, any Karanma service is not being regularly performed, or that an alienation of Karanma service or of the property, Thiruppuvaram or other emolument attached thereto, has been effected by the Karanma holder or by any member or members of the Karanma family, the Board shall give due notice of the charge to the head of the family and the next senior member, and also to such other members of the Karanma family as the said Board may deem necessary, and if after hearing their objections, if any, the Board is satisfied that there SA No.290 of 2001 10 has been an alienation of the Karanma service of the property or of the Thiruppuvaram or of the other emoluments attached thereto or that there has been a failure to perform the service properly or regularly, the Board shall suspend, remove, determine, cancel or deal with in any other manner the Karanma right of the family to the service.
(3) All alienations of Service Inam lands attached to specific services which have been or which may hereafter be made contrary to past usage shall be treated as null and void. The Board shall have power to resume Service Inam lands attached to specific services if such lands are alienated or if the holders of such lands make default in the performance of the services:
Provided that the Board may in its discretion deal with such lands and the services connected therewith in any other manner as it may deem fit.
(4) Any person deeming himself
aggrieved by any decision passed under sub-
sections (2) and (3) may, within a period of one
year from the date of such decision, institute in the District Court within whose jurisdiction the property is situate a suit to establish the right which he claims in respect of the property:
Provided that, subject to the result of the suit, if any, the decision of the Board passed SA No.290 of 2001 11 under sub-sections (2) and (3) of this section shall be final."
It is therefore contended by the learned counsel for respondent that by virtue of these provisions, coupled with the evidenciary value of Exts.A2 and A5, it can be seen that the property in question absolutely belonged to Muttar Koottummel Ganapathy Temple, which became vested in the respondent Board pursuant to the provisions in the Act.
13. Learned counsel for the appellants contended that their title deeds do not show any connection between the lands in question and the Board. Ext.B3 is the title deed through which the appellants claimed right and possession over the property. It is seen that their predecessor-in- interest purchased the property from Vazhaparambil Veettil Gowri Amma and Kamalakshi Amma. It can be seen that they obtained the property as per a document bearing No.1309 of 1118 M.E. of S.R.O., Thiruvalla. No derivation of title has been mentioned, except mentioning the number of the previous title deed. Ext.B2 is the copy of document No.1309 of 1118 M.E. referred to in Ext.B3. Kozhakkattu Veettil Krishna Pillai assigned the property in favour of Gowri Amma and Kamalakshi Amma. In that document, a mortgage and an auction sale pursuant thereto in O.S.No.97 of 1098 M.E. before the Munsiff's Court, Thiruvalla has been mentioned. But, who were the parties to the suit or who created the otti (anomalous mortgage) has not been mentioned in Ext.B2. It is not clear from Ext.B2 as SA No.290 of 2001 12 to whether the karanma holder's right was the subject matter of otti. It is equally unclear as to whether karanma holder was a party to the above mentioned suit.
14. Learned counsel for the appellants contended that they had filed O.S.No.803 of 1987 before the Munsiff's Court, Alappuzha against certain persons for a perpetual injunction. It was decreed on 16.07.1990. Exts.B8 and B9 are the judgment and decree in the above suit. Admittedly, the Board was not a party in the suit and therefore, the Board can validly contend that the decree is not binding on them. Ext.B7 is the decree in O.S.No.164 of 1988 filed by the Board against the predecessor-in-interest of the appellants before the Court of Additional Munsiff, Alappuzha. The suit was one for injunction. Ext.B7 shows that the suit was dismissed as not pressed. Ext.B6 is a copy of the compromise petition between the predecessor-in-interest of the appellants and one Narayana Pillai Prabhakaran Nair. In that proceedings also Board is not a party and therefore, they are not bound by the terms in the compromise.
15. Learned counsel for the appellants contended that the Board is bound to explain the dismissal of O.S.No.164 of 1988, as revealed by Ext.B7, filed against the predecessor-in-interest of the appellants. In the present plaint, it has been specifically mentioned about the institution of O.S.No.164 of 1988 against the appellants' predecessor. The lower SA No.290 of 2001 13 appellate court, noticing that O.S.No.164 of 1988 was only a suit for injunction simplicitor and the plaintiff had mentioned about institution of the suit in the present plaint without any suppression, found that the suit for declaration and consequential injunction is not hit by dismissal of O.S.No.164 of 1988. This reasoning of the lower appellate court is perfectly legal.
16. On evidence also, the lower appellate court found that the appellants claimed title in respect of 30 cents in survey No.159/10 by virtue of Ext.B3. The property involved in the assignment is on the northern and southern sides of Muttar Koottummel Ganapathy Temple. Ext.B2 also shows that the property assigned is comprised in survey No.159/10. 19 cents in survey No.159/11A was sold in a court auction as per decree in O.S.No.97 of 1098 M.E. before the Munsiff's Court, Changanacherry. It can be seen that one Krishna Pillai, the assignee in Ext.B2, bid in auction and took delivery of 42 cents in survey No.159/10. Evidence showed that delivery was not effected in respect of 19 cents of property comprised in survey No.159/11. The lower appellate court, on an analysis of evidence, found that Ext.B4 would show that subsequent to Ext.B2, the property was leased to one Madhavan Nair and there is no evidence to hold that Madhavan Nair at any point of time had surrendered the property to the assignor in Ext.B3. If that be so, the assignor in Ext.B3 could not have SA No.290 of 2001 14 assigned the property to the predecessor-in-title of the appellants.
17. Besides the above reasoning, the lower appellate court also found that the appellants, though traced title through Exts.B2 to B4, did not clearly establish a derivation of title. Based on evidence, it was found by the lower appellate court that none of the documents clearly say as to enforce whose liability the suit (O.S.No.97 of 1098 M.E.) was instituted or as to who was the judgment debtor. It is also correctly decided that in Ext.B2, it is not mentioned that the judgment debtor in O.S.No.97 of 1098 M.E. had an alienable right in the property included in the auction. In this context, it is relevant to remember the principle that there is no warranty of title to property purchased in a court sale. In otherwords, the property purchased by a person in a court sale is subject to all the infirmities and encumbrances attached to it at the time of sale. In the absence of any evidence to hold that the judgment debtor in O.S.No.97 of 1098 M.E. was having a right over the disputed property which could have been sold in a court sale, the whole case of the appellants should fall down.
18. On an analysis of evidence, it can be seen that the court below rightly found by virtue of Ext.A5 that the property originally belonged to Muttar Koottummel Ganapathy Temple. It is true that there is no specific pleading as to whom the Karanma right was given. However, the appellants have no definite case that the property never belonged to Ganapathy SA No.290 of 2001 15 Temple and it belonged to a particular individual or any legal entity. It may be a notable point that title cannot be decided solely on revenue records. But, in this case, the position is different, because the revenue records pertaining to erstwhile Travancore State, which clearly showed the properties held by temples managed by Government, can be taken as title deed because normally no assignment deed would be created in the name of Temples and document evidencing dedication also rarely made. Therefore, the lower appellate court rightly found that the property belonged to Muttar Koottummel Ganapathy Temple. Despite the absence of specific pleading that it was given to a particular individual for performing any particular karanma right, nature of the pleading raised by the appellants would show that it becomes their responsibility to show how they obtained property originally belonged to the Temple and in what manner it happened to be sold in court auction. In the absence of any evidence, the lower appellate court is justified in taking a view favourable to the respondent. As rightly observed by the lower appellate court, the dismissal of O.S.No.164 of 1988 filed by the respondent Board will not adversely affect their case because that was a suit for injunction simplicitor and the present one is a comprehensive suit where title is sought to be declared.
19. As stated earlier, Section 18 of the Act of 1981 is inapplicable SA No.290 of 2001 16 in this case because much prior to the commencement of the Act, the property must have been alienated in contravention of the existing rules and regulations. Therefore, the prohibitions in the aforementioned proclamation had already been attracted and the karanma holder could not have claimed any benefit of Act of 1981. Further, there is no material produced by the appellants to show that they claimed any right through karanma holder. Therefore, Section 18 of the Act of 1981 has no application and the trial court was wrong in applying the provision in favour of the appellants.
20. On a total evaluation of the materials produced and the questions of law, I am of the view that the appeal is devoid of any merit and the substantial questions of law therefore are decided against the appellants.
In the result, the appeal is dismissed.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
cks SA No.290 of 2001 17 A.Hariprasad, J.
S.A.No.290 of 2001 JUDGMENT 24th May, 2017