Remanded

Pettah Puthen Kovil Bhagavathy Temple v. B.Vijayan

Kerala HC8 Nov 2018RSA/508/2005

Case brief

AI extract

What is this about?

This regular second appeal by temple plaintiffs was allowed. The Kerala High Court set aside the first appellate court decree, holding that the lower courts failed to exercise jurisdiction correctly regarding title documents. The matter was remanded for fresh disposal with an appointment of a surveyor within six months.

What did the court decide?

The second appeal is allowed; the decree and judgment of the first appellate court are set aside; the matter is remanded for fresh disposal with a surveyor to be appointed within six months.

Pettah Puthen Kovil Bhagavathy Temple Vs B.Vijayan — Partition | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE P.SOMARAJAN

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FRIDAY,THE 09TH DAY OF NOVEMBER 2018/18TH KARTHIKA, 1940

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RSA.No.508 of 2005

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AGAINST THE JUDGMENT AND DECREE DATED 26.3.2005 IN AS NO.125/1997 OF THE II ADDL.DISTRICT COURT,THIRUVANANTHAPURAM

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AGAINST THE JUDGMENT AND DECREE DATED 16.1.1996 IN OS NO.110/1991 OF THE I ADDL.MUNSIFF'S COURT,THIRUVANANTHAPURAM

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APPELLANTS/APPELLANTS/PLAINTIFFS:

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1 PETTAH PUTHEN KOVIL BHAGAVATHY TEMPLE REPRESENTED BY ITS SECRETARY, TEMPLE COMMITTEE, PETTAH, THIRUVANANTHAPURAM.

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2 THE TEMPLE COMMITTEE REPRESENTED BY ITS SECRETARY, PETTAH PUTHEN KOVIL TEMPLE,\ PETTAH, THIRUVANANTHAPURAM.

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3 C.P.SETHUNATHAN, RESIDING AT `VISWANATHAM', S.N.NAGAR, PETTAH, THIRUVANANTHAPURAM.

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4 K.HARIDASAN, TREASURER, RESIDING AT III NIVAS, THACHAKUDI, V.V.ROAD, VANCHIYOOR, THIRUVANANTHAPURAM.

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BY ADVS. SRI.M.R.ANANDAKUTTAN SRI.B.SATHIQ SRI.MAHESH ANANDAKUTTAN SRI.R.S.MADHU

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 B.VIJAYAN RESIDING AT PUTHENKOVIL NADA VEEDU, PETTAH, THIRUVANANTHAPURAM. (DIED)

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R.S.A.No.508 of 2005

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:: 2 ::

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2 B.SAHADEVAN, RESIDING AT T.C.30/1008 PETTAH, THIRUVANANTHAPURAM (DIED).

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3 NALINI, W/O.SAHADEVAN RESIDING AT T.C. 30/1008, PETTAH, THIRUVANANTHAPURAM. (DIED)

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4 SANDHYA, D/O.SAHADEVAN RESIDING AT DO. DO.

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RESPONDENTS 1 TO 3 DIED AND THE RESPONDENT NO.4 IS THE LR OF RESPONDENTS 1 TO 3 AS PER ORDER DATED 02.01.07 IN MEMO (CF 7461/06) FILED ON 20.12.06 BY THE APPELLANTS.

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R4 BY ADVS. SRI.P.SREEKUMAR SRI.K.S.MANU (PUNUKKONNOOR)

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

R.S.A.No.508 of 2005

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JUDGMENT

Aggrieved by the judgment dated 26.3.2005 in

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A.S.No.125 of 1997 of the II Additional District

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Court, Thiruvananthapuram the original plaintiff came up with this second appeal.

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The suit is one for declaration of title,

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recovery of possession and also for consequential injunction. The suit was dismissed by the trial court, which was confirmed in appeal, against which this second appeal is preferred. The

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original plaintiff is an inanimate body, a temple. Exts.A4 to A8 documents were produced in order to

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show their title over the property in dispute having an extent of 4.5 cents, which, according to the plaintiffs, will form part of a large extent of 28.900 cents comprised in Sy.No.141. In order

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to show their title over the property, an earlier decree passed in O.S.No.777 of 1963 was produced and marked as Ext.A6. It was a suit instituted by the present plaintiffs as against the State

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R.S.A.No.508 of 2005

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:: 4 ::

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Government wherein the title of the plaintiffs

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over 28.900 cents of property comprised in Sy.No.141 was declared and it is well evident from the decree passed (Ext.A6). They have also

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produced copies of basic tax receipts, but unfortunately they were neither accepted in evidence nor marked. Without taking into

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consideration the documents produced, both the trial court and the appellate court disposed of

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the suit holding that the plaintiffs failed to prove their title over the property. Exts.A4 to A8 documents ought to have been considered both by

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the trial court as well as the first appellate court especially the plaintiffs temple had received compensation in connection with the land acquisition proceedings initiated, which is well evident from Exts.A4 to A8 documents. It is not clear why the first appellate court had not taken into consideration Ext.A6 decree passed in 1963 declaring the title of the plaintiffs over large extent of 28.900 cents. If the plaint schedule property actually forms part of the large extent it has to be adjudicated by appointing a Surveyor

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R.S.A.No.508 of 2005

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so as to locate 28.900 cents. In any view of the matter, the jurisdiction vested with the trial court as well as the first appellate court has not been exercised in its correct perspective and that has resulted in miscarriage of justice. Hence liable to be interfered with.

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The second appeal is allowed by setting aside the decree and judgment of the first appellate court. The matter is remanded back to the first appellate court for fresh disposal in accordance with the law in force, within a time schedule of six months from the date of receipt of a copy of this judgment. The parties shall appear before the first appellate court on 23.11.2018. No costs.

SD/

P.SOMARAJAN

JUDGE

ahz/

Pettah Puthen Kovil Bhagavathy Temple v. B.Vijayan

Case brief

What is this about?

What did the court decide?

Pettah Puthen Kovil Bhagavathy Temple v. B.Vijayan

Case brief

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What did the court decide?

What the court decided

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