Madras High Court
Anbiah And Ors. vs Rev. J. George Robinson And Ors. on 10 October, 1991
Equivalent citations: AIR1992MAD265, (1992)IIMLJ38, AIR 1992 MADRAS 265, (1992) 2 MAD LJ 38
JUDGMENT
1. This second appeal is preferred by the defendants who have suffered a decree in respect of the ad ministration of the suit church at the hands of the first appellate Court even though the suit against them was dismissed by the trial Court. The subject matter of the suit is a Church in Andarkulam, in Kanyakumari District and its properties.
2. The case of the plaintiffs is that the first plaintiff is a Pastor of the church and plaintiffs 2 to 7 are the elected deacons forming the Church Committee presided over the first plaintiff as its Chairman. The Church and its properties are under the immediate control of the said committee and under the Supervision of the Kanyakumari Diocese of the Church of South India. Originally 456 churches in South Travancore including the plaint church were under the L.M.S. Corporation in London, but after the churches merged with the Church of South India (C. S. I.) in 1947 all the properties of the Churches including that of the plaint Church were transferred to the C.S.I. First defendant and some others wanted to break away from the C. S. I. due to the influence of defendants 8 and 9 who are members of an alien Church in America called National American Congregational Christian Church (NACCC), and claiming themselves as L.M. Christians filed 24 suits against the C.S.I. claiming all the 456 Churches and their properties for themselves. All the suits were dismissed. O. S. No. 1 of 1960 filed by the first defendant and four others in Subordinate Judge's Court, Nagercoil in a representative capacity in which the suit Chruch was item No. 9 in the schedule of properties, was dismissed. Thus the suit Church and its properties belong to or are in the administration and possession of the C.S.I. and they are not under the administration and possession of L.M.S. Society as claimed by the defendants. Defendants 2 and 3 are the sons of the first defendant and defendants 4 to 7 are mere worshippers in the Church. While so the defendants formed into an unlawful assembly and on 1-8-1970 broke open the lock of the gate of the Church and attempted to break open the Church. The plaintiff gave a complaint to the police but in vain. On 2-8-1970 the defendants and their henchmen surrounded the Church and obstructed the plaintiffs and other C.S.I. Christians from entering into the church compound. Then on 9-8-1970 the defendants prevented the plaintiffs from conducting service in the Church. It has been held in O.S. No. 1 of 1960 that only the C.S.I, are entitled to administer the Church and conduct services and that decision operates as res judicata against the claim of the defendants. On these pleadings the plaintiffs have prayed for a declartion that only the plaintiffs are entitled to the management of the suit church and for injunction restraining the defendants from obstructing the plaintiffs entering into the church and its properties.
After filing of the suit, tenth defendant was impleaded on the allegation that as contended by the defendants he is not a pastor in the Church and he is unlawfully residing in the school building of the Church and he is liable to be evicted therefrom, and it has been so prayed in the plaint. Then by way of amendment a further prayer has been made in the plaint that in case it is held that the defendants are in possession of the property a decree may be passed for possession.
3. Defendants 1 to 7 filed a joint written statement wherein they have denied that the suit church and its properties belong to or are under the control of C. S. I. and contended that it belongs to L.M. Christians of Andar-kulam. They further contended that it is true that some Churches joined the C.S.I. in 1947 but not the Andarkulam Church which continued as L.M, Church. Any transaction that purports that the suit church has been transferred to C. S. I. is not true and valid and not binding on the church or its members because such transfer was not authorised. It is then contended that it is true that the first plaintiff was a pastor and plaintiffs 2 to 7 were descons of the Church and members of the Church committee but they have ceased to be so on and from 5-7-1970. The churches and its properties have been administered by the present Church committee constituted by the defendants 1,2,4 and 6 and others. They have been elected in a meeting held on 12-7-1970. It is denied that any of the defendants ever formed themselves into an unlawful assembly and broke open the lock of either the gate or the church door. There is no member in the Church who belongs to the C.S.I. and the plaintiff only are calling themselves as members of C.S.I. from 4-7-1970, and they never conducted any service in the Church after 5-7-1970. It is further contended that the question of possession of church was never an issue in O.S. No. 1 of 1960 and the decision if any about possession in that suit is without jurisdiction and incompetent and does not operate as res judicata.
4. Defendants 8 and 9, and also tenth defendant filed written statements similarly contending as in the written statement filed by defendants 1 to 7.
5. In a common judgment rendered in this suit and another suit in O.S. 982 of 1970, the trial Court on consideration of the pleadings and the evidence rejected the case of the plaintiffs that all London Mission Churches and London Mission Christians have become the Churches and members of Church of South India and therefore the suit church and its properties are trust properties of C. S. I., and it accepted the case of the defendants that the previous office bearers of the suit church viz., the plaintiffs ceased to hold office from 5-7-1970 and the defendants 2, 4 and 6 are the present office bearers having been validly elected as office bearers. It also rejected the case of the plaintiffs that the claim of the defendants that the suit church is a London Mission Church is barred by res judicata in view of the decision in O.S. No. 1 of 1960 on the file of the Sub Court, Nagercoil. On these findings it held that the plaintiffs are not entitled to declaration of this right of management of the plaint church and its properties and for injunction or in the alternative for recovery of possession of the plaint church and its properties. On these findings it dismissed the suit.
6. In the appeal filed by the plaintiffs, the appellate Court however disagreed with all the above-said findings of the trial Court and instead held that the suit church and its properties are the trust properties of Church of South India, and that the first plaintiff and plaintiffs 2 to 7 did not cease to hold office as contended by the defendants and the first plaintiff continues as a pastor and plaintiffs 2 to 7 continue to hold office as deacons, and the claim of the defendants that they were elected office bears was rejected. It then held that the claim of the defendants is barred by res judicata in view of the decision in O.S. No. 1 of 1960. In the result it set aside the judgment and decree of the trial Court and decreed the suit declaring the plaintiffs' right of management of the plaint church and its properties and the first plaintiff's right to conduct religious services in the Church. Even though there is no finding with regard to possession pf the Church and church properties, the first appellate Court has also decreed the suit for delivery of possession. It further held that the plaintiffs are entitled to take possession of the property which is now in occupation of the tenth defendant. Aggrieved, the defendants have come up with this second appeal.
7. Mr. M. R. Narayanaswamy, learned counsel appearing for the appellants-defendants 2 to 7 challenges the finding of the first appellate Court that the claim of the defendants is barred by res judicata in view of the decision in O. S. No. 1 of 1960, as erroneous in law. The learned counsel next contends that the trial Court in its well considered Judgment has rightly held that the Church of South India (C.S.I.) has no right of management of the plaint church and its properties, and the appellate Court has without giving acceptable reasons therefor, on wrong presumptions, differed from that finding, and this is against law.
8. Considering the first point raised by the learned counsel, it is not in dispute that in O.S. No. 1 of 1960 on the file of Sub Court, Nagercoil, the question as to who have the right of management of the church, between the plaintiffs and the defendants herein, has been decided. But the learned counsel would submit that that finding in that suit ought not to have been given because that suit ought to have been rejected as unsustainable in law at the inception itself and therefore any finding given on the merits of the case was unwarranted and they have to be considered in law as non est. The learned counsel continues that it has been held in that case with a clear finding that the suit was defective inasmuch as the relief claimed in the suit falls under Section 92 of the Code of Civil Procedure and for filing a suit seeking such a relief, as the law stood then, leave of the Advocate General under Section 92 C.P.C. ought to have been obtained, but admittedly there is no such leave, and this goes to the root of the matter, and therefore the suit was not maintainable, and in view of this finding the court should not have considered the other issues in the matter. I find considerable force in this submission of the learned counsel.
In support of this contention Mr. Narayanaswamy cites a Division Bench ruling of the Calcutta High Court in "Hira Lal Murarka v. Mangtulal Bagaria", AIR 1947 Cal 221. In that case a question arose whether the findings given on merit soft he case after it was found that the suit was bad for want of notice under Section 80 of Code of Civil Procedure would be valid and operate as res judicata in a subsequent suit. As to the effect of not giving notice under Section 80 C.P.C. the Court said that, "Once the Court has found that notice is necessary and has not been given and that the plaint does not contain an averment to that effect, no valid suit is before the Court on which it can pronounce judgment and its sole duty is to reject the plaint under O. 7 R. 11(d). If having expressed its conclusions and findings regarding the necessity for notice to be given under Sec. 80, the Court proceeds to express findings upon the issues arising on the pleadings, its findings on the issues are obiter and cannot operate as res judicata."
Upon reference to two decisions by the Judicial Committee the Court further stated that, "The substance of these two cases is: a finding upon an issue which has no occasion to be decided will not found a plea of res judicata although it will create a paramount duty on the party against whom it is given, to displace it; Sec. 80 is mandatory and when the notice which it prescribes is not given before a suit is instituted the consequence is as if the suit had never been brought and it is unsustainable in limine."
Now, as per sub-section (2) of Section 92, C.P.C., no suit claiming any of the reliefs claimed under sub-section (1) shall be instituted in respect of any such (rust as is therein referred to except in conformity with the provisions in that sub-section. Sub-section (1) as it stood then required leave of the Advocate General. No such leave having been obtained, as found by the Court, O.S. No. 1 of 1960 was incompetent. What all the Calcutta High Court said in AIR 1947 Cal 221 (supra) is applicable to the suit O.S.I of I960 which has been filed without leave of the Advocate-General.
In this connection Mr. Narayanaswamy has also referred to a single Judge decision of this Court in A. Subramanyan v. B. Yegnanarayaniah, (1971) 1 Mad LJ 46 wherein the learned Judge has said that.
"What is barred by sub-section (2) of Section 92 is the institution of the suit and not mere maintainability."
I am in respectful agreement with what is stated in AIR 1947 Cal 221 (supra) and (1971) 1 Mad LJ 46 (supra).
The learned counsel then submits that the findings given in a suit which is not competent is like a finding given by a Court which has no jurisdiction, and in this connection the learned counsel cites a Supreme Court decision in Syed Mohd. Salie Labbai (Dead by L.Rs.) v. Mohd. Hanif (Dead by L.Rs.). wherein il has been held as follows at page 1577:--
"before a plea of res judicata can be given effect to, the following conditions must be proved:--
(i) that the litigating parties are the same;
(ii) that the subject-matter of the suit is identical;
(iii) that the matter was finally decided between the parties; and
(iv) that the earlier suit was decided by a Court of competent jurisdiclion."
I agree with the learned counsel that the findings given in an incompetent suit is like a finding given by a Court without jurisdiction.
Considering all these it appears to me that once the Court has found that the suit was incompetent for defect of want of leave under Section 92, C.P.C., the Court oughl not to have considered the other issues in the suit and instead it should have rejected the plaint. Therefore the findings given on other issues have to be taken as no findings at all, and as such they cannot operate as res judicata in the present suit against the defendants.
9. Coming to the second point raised by the counsel, on careful consideration of the judgments of both the Courts below 1 entirely agree with the counsel. The first appellate Court does not seem to have properly understood the plaint averments. The plaint averments proceed on the basis of assumptions that it is the admitted fact that in 1947 all the 456 London Mission Society Churches in the South Travancore including the plaint church merged with the C.S.I. It is the definite case of the defendants that there was no merger of the plaint church with C.S.I. Therefore the utmost thing for (he plaintiffs to prove is that in 1947 the plaint church became a C.S.I. Church.
It is common case that the C.S.I. itself was formed in the year 1947. According to the defendants many of the L.M.S. Churches became C.S.I. Churches but some of the churches including the plaint church never joined C.S.I. and they remained independent. There is dear evidence on the side of the plaintiffs themselves that the suit church did not become a C.S.I. Church in 1947. The first plaintiff Rasaiah as P.W. 1 has stated in no uncertain terms that till 5-7-1970 Andarkulan Church (suit church) was only L.M.S. Church, and on that day he was a pastor in that Church. He would further state that only after 4-7-1970 he entertained the idea of joining with C.S.I. He also states that even after 1947 Andarkulam and Palliyadi Churches were independent churches without joining the C.S.I. He would admit that Palliyadi Church is even now a London Mission Church. In the face of this evidence of the first plaintiff (P. W. 1) where is the case for the plaintiffs that the plaint church joined or it became under the administration of C.S.I.? Therefore the plaintiffs'case that after 1947 the plaint church was C.S.I, church falls to the ground. For this reason alone the plaintiffs are liable to be non-suited. When this is the case where is the question that the first defendant and some others wanted to break away from the C.S.I. under the influence of defendants 8 and 9 who according to the plaintiffs are agents of an alien church in America?
True, the first defendant and four others including the father of the ninth defendant filed O.S. No. 1 of 1960 for declaration that the suit church therein including the present plaint church belong to the London Mission Christians and for an injunction restraining the defendants therein from interfering with the possession of 'A' schedule properties (therein) by the London Mission Christian and for recovery of possession of 'B' schedule properties (therein) from the C.S.I. Christians, and in that suit it was held that the suit churches therein including the present plaint church did not belong to the London Mission Christians but belong to C.S.I. Christians, but that does not necessarily mean that it was in fact so. It must be remembered that in that suit the defendants have sought for an injunction against the defendants therein with regard to the 'A' schedule properties which are nine items of properties which would indicate, according to the defendants who are the plaintiffs therein, that they were in possession of the Church and Church properties etc. except the 'B' schedule properties. I have held above that the findings in O.S. No. 1 of 1960 cannot operate as res judicata in this suit.
Be that as it may, what about the categorical admission of the first plainliff himself, as pointed out above, lhat lilt 5-7-1970 the suit church was L.M.S. Church and only after 4-7-1970 it had occurred to him that the Church should join the C.S.I.? Therefore it is beyond any shadow of doubt that the plaint Church never became a C.S.I. Church in 1947 as pleaded by the plaintiffs.
10. The first appellate Court seems to say that the claim of the plaintiffs to the plaint Church is based on Ex. A-4 dated 24-2-1967, which is said to be an indenture made between London Missionary Society Corporation and the Church of South IndiaTrust Association, as per which the former in accordance with a resolution of its Directors dated 27-6-1951 has transferred the plaint church to the latter. But this is not the case of the plaintiffs at all. Nowhere it is stated so in the plaint. The question arises as to how the London Mission Society has any right to transfer the plaint Church to the C.S.I. It appears to me that the trial Court is right when it states that it is for the entire congregational members of the plaint church to agree for a transfer and the transfer cannot be made by L.M. Society. In this connection it is relevant to note Ex. A-1 which is a letter from the Foreign Secretary to one Zakharia who as per the evidence of the first plaintiff (P. W. 1) was contending that the suit church was a London Mission Church. A careful reading of this letter would show that far from helping the plaintiffs, it supports the case of the defendants for it is stated therein to the effect that any church can choose to remain free from the Church of South India. It is further stated to the effect that the L. M. Society is not responsible for any particular Church or of any tradition. From the admission of the first plaintiff (P.W. 1) that it was only in 1970 the transfer of the plaint church to C.S.I. was thought of and till then the plaint church remained as L. M. Society Church, it is apparent that Ex. A-4 had no effect or operation whatever as regards the plaint Church.
The first appellate Court in more than one place states that by operation of law the plaint church forms part of the C.S.I. This is rather ununderstandable. The first appellate Court has referred to the evidence of P. W. 1 stating that the plaint church joined the C.S.I. two months after it broke up. No such thing is stated in the plaint, and apart from what P.W. 1 has stated no one else has spoken so.
Ex. B-38 is a resolution passed by the Andarkulam Church on 21-9-1947. This resolution is not to join the C.S.I. in the proposed meeting of the London Mission Church at Kadamalaikurdu on 27-9-1947. Hence it is hard to believe that the suit church joined the C.S.I., Ex. B-104 dated 30-6-1960 is a letter by the first plaintiff as the President of the plaint Church Committee to the District Educational Officer. Therein he refers to a school as the school of Andarkulam London Mission Church. This also clearly shows that even according to the first plaintiff himself as on 30-6-1960 the suit church was a London Mission Church. Ex. B-105 dated 19-5-1964 is a letter addressed to the District Educational Officer by the sixth plaintiff as Secretary of Andarkulam L. M. Church wherein also it is emphasised that the school building belongs to Andarkulam L. M. Church.
The plaintiffs have filed Ex. A-24 dated 4-7-1970 as a resolution passed by the Church Committee on 4-7-1970 unanimously deciding to join with the C.S.I., and Ex. A-25 dated 5-7-1970 as an approval by the congregation of the said resolution of the church committee. First of all it is not the plaint averments at all that the suit church joined the C.S.I. in 1970. As regards these documents Exs. A-24 and A-25 the first defendant who was one. of the deacons has not signed Exs. A-24 or A-25. The trial Court has rightly commented on Ex. A-25 that it has been written by P.W. 1 himself and signed by him alone. Therefore these documents will not help to prove that there was valid resolution passed by the congregation for joining the suit Church with the C.S.I. Ex. A-21 dated 2-7-1970 has been filed as a mass letter by the members of the suit Church to the Bishop of Kanyakumari expressing their desire to join the C.S.I. Rut this letter shows that it has been signed only by 33 communicants while admittedly as per the evidence of P.W. 1 there are 140 communicants. Therefore Ex. A-21 is of no use to the plaintiffs to show that the members of the plaint church wanted to join the C.S.I. In the context of these documents it is the case of the defendants that when the first plaintiff expressed his intention to the Church congregation on 5-7-1970 to join the C.S.I. there was loud protest from the entire congregation and as a result the first plaintiff was not even allowed to conclude the morning services in the Church, and the first plaintiff and other plaintiffs left the Church even before the prayer meeting concluded and they have ., never again entered the premises of the plaint church afterwards. It is the further case of the defendants that the first plaintiff ceased to be a pastor from 5-7-1970, and afterwards in the general body meeting held on 12-7-1970 in the church the plaintiffs were removed from the respective offices and a fresh body of deacons were elected by the members of the congregation.
The plaintiffs have not produced any record to show that they are the office bearers subsequent to 5-7-1970. The defendants claim that all through they have been in possession of the church and its properties. In support of this claim they have filed tax receipts, receipts for payment of electricity charges and other documents for possession. The trial Court has considered all these documents and held that the defendants are in possession. The appellate Court also concurred with this finding of the trial Court. It appears, realising that the plaintiffs will not be able to prove that they are in possession since as a matter of fact the defendants are in possession, they who have first asked for injunction against the defendants have subsequently made an alternative prayer for possession.
11. Thus considering, I find that the trial Court after considering the entire evidence in the case has correctly held that there was no union of the plaintiff church with the C.S.I. at any time, but the appellate Court in spite of admissions by the first plaintiff as P.W. 1 that there was no union of the plaint Church with the C.S.I. in 1947 as pleaded in the plaint, on pure wrong assumptions, has held that the plaintiffs have proved their case of union. In this view of the matter the judgment of the first appellate Court is liable to be held as erroneous in law. Accordingly the second appeal is allowed and the judgment and decree of the first appellate Court are set aside and that of the trial Court are restored. Considering the circumstances there will be no order as to costs.
12. Appeal allowed.