Partly allowed

The Payappar Sree Dharma Sastha Advisory Committee v. a.K.Joseph

Kerala HC12 Jun 2019WA/1257/2019

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ appeal filed by a temple advisory committee. The court set aside the impugned order which directed the Tahsildar to demarcate the petitioner's property. The High Court permitted the petitioner to proceed with such demarcation through the execution court. Justice A.K. Jayasankaran Nambiar authored the judgment.

What did the court decide?

The impugned judgment of the single judge directing the Tahasildar to measure and demarcate the petitioners property was set aside. The petitioners are permitted to seek measurement and demarcation th

The Payappar Sree Dharma Sastha Advisory Committee Vs… — Property and Title | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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WEDNESDAY, THE 12TH DAY OF JUNE 2019 / 22ND JYAISHTA, 1941

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W.A.No. 1257 of 2019

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AGAINST THE JUDGMENT IN WP(C) 5555/2019 of HIGH COURT DATED 25.2.2019

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APPELLANT/3RD RESPONDENT:

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THE PAYAPPAR SREE DHARMA SASTHA ADVISORY COMMITTEE REPRESENTED BY ITS SECRETARY HARIPRASAD, S/O.SUGATHAN.V.K., AGED 32 YEARS, PAYAPPAR, PIN-686 651.

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BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.R.S.ASWINI SANKAR SRI.G.RENJITH SRI.S.M.PRASANTH SRI.T.H.ARAVIND SRI.T.RAMPRASAD UNNI

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RESPONDENTS/PETITIONER & RESPONDENTS 1, 2 & 4 & 5:

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1 A.K.JOSEPH, AGED 75 YEARS SON OF KURUVILLA, ELIPULIKATTU VEETTIL, PAYAPPAR P.O., LALAM VILLAGE, PALA, PIN-686 651.

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2 THE TRAVANCORE DEVASOM BOARD, REPRESENTED BY ITS SECRETARY, DEVASOM BOARD OFFICE, THIRUVANANTHAPURAM-695 003.

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3 THE ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, ETTUMANOOR GROUP, ETTUMANUR-686 631.

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4 THE TAHSILDAR, MEENACHIL TALUK, PIN-686 589.

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5 THE TALUK SURVEYOR, MEENACHIL TALUK, PIN-686 589.

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BY ADV. SRI.P.V.KUNHIKRISHNAN, SC, TDB SRI.TEK CHAND, GOVERNMENT PLEADER SRI.S.SREEKUMAR (SR) SRI.MARTIN JOSE.P

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

W.A.No. 1257 of 2019

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JUDGMENT

A.K.Jayasankaran Nambiar, J.

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Heard Sri.K.Ramakumar, the learned Senior Counsel appearing for the appellant, Sri.S.Sreekumar, the learned Senior Counsel appearing for the first respondent, Sri.P.V.Kunhikrishnan, the learned Standing Counsel appearing for the Travancore Devaswom Board and Sri.Tekchand, the learned Government Pleader.

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The third respondent/the Payappar Sree Dharma Sastha Advisory Committee is the appellant before us, being aggrieved by the judgment dated 25.2.2019 of the learned Single Judge in W.P.(C) No.5555 of 2019. The Writ Petition was preferred by Sri.A.K.Joseph, the first respondent herein, for a direction to compel the Tahasildar, Meenachil Taluk, to measure and demarcate the property belonging to him and having an extent of 17.16 Ares in Re.Sy.No.383/5 of Lalam Village, in pursuance of Ext.P1 judgment rendered by this Court in A.S.No.298 of 2002. In his writ petition, he claimed that he was the owner of 17 Ares 16 sq.m. of land, along with other property, in Re.Sy.No.383/5 of Lalam Village, Meenachil Taluk, Kottayam District and that the appellant herein, which is a temple owned and administered by the Travancore Devaswom Board, owned an extent of 1.18.60 hectares of land in ReSy.No.383/3, Block No.21 in Lalam Village. A suit came to be filed by the Devaswom Board as O.S.No.37 of 1998 before the Munsiff Court, Pala, for recovery of land in Re.Sy.No.383/3, alleging that there had been trespass into the property. It was also contended that the Writ Petitioner was in possession and occupation of 17 Ares 16 sq.m. of temple property. Although the suit was dismissed and confirmed in appeal, the judgment was set aside by the Apex

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W.A.No. 1257 of 2019

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Court and remanded back to this court for fresh adjudication. In Ext.P1 judgment dated 13.6.2018 in A.S.No.298 of 2002, that was passed after the remand from the Supreme Court, this court found that the Writ Petitioner had admitted that he did not have any claim or right over any property in Re.Sy.No.383/3 and that this claim was only in respect of property in Re.Sy.No.383/5 of Lalam Village, Meenachil Taluk, Kottayam District. It was ,therefore, that the First Appeal was allowed by this court through Ext.P1 judgment and a decree granted in favour of the Devaswom.

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It would appear that the Writ Petitioner (4^th respondent in the A.S.298 of 2002), who admittedly was not in ownership or possession of any land in Re.Sy.No.383/3 which was the subject matter of dispute in the A.S.298 of 2002, found himself in a position where he could not seek an execution of the decree that was passed in favour of the Devaswom Board so as to get a measurement and demarcation of boundaries of his property in Re.Sy. No.383/5. Under the said circumstances, he preferred a request before the fourth respondent Tahasildar for measurement and demarcation of the boundaries of the properties belonging to him in Re.Sy.No.383/5 of Lalam Village, Meenachil Taluk, Kottayam District. When no action was taken on the said application by the Tahasildar, the Writ Petitioner approached this court through the aforementioned Writ Petition.

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The learned Single Judge, who considered the matter, found that the petitioner's claim was in respect of land that was not the subject matter of dispute in A.S.No.298 of 2002. Under the said circumstances, the learned Single Judge found no difficulty in directing the 4^th respondent Tahsildar to proceed to measure and demarcate

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W.A.No. 1257 of 2019

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the property of the petitioner in Re.Sy.No.383/5 of Lalam Village, Meenachil Taluk, Kottayam District. By way of abundant caution, the fourth respondent was also directed to afford an opportunity of hearing to the Travancore Devaswom Board as also the Assistant Devaswom Commissioner of the Board before passing orders as directed.

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In the present appeal before us, it is the contention of the learned Senior Counsel Sri.K.Ramakumar, appearing on behalf of the appellant temple, that the learned Single Judge ought not to have issued a direction to the Tahsildar to measure and demarcate the property of the Writ Petitioner in Re.Sy.No.383/5 without hearing the appellant herein. While we notice that the impugned judgment was passed on the admission date itself, without hearing the appellant herein, we also find that it was never the case of the appellant that it owned any property in Re.Sy.No.383/5 since the subject matter of A.S.298 of 2002 was properties in Re.Sy.No.383/3. As already noted, the Writ Petitioner had categorically admitted, even at the time of disposal of A.S.298 of 2002 (in Ext.P1 judgment) that he did not have any claim in respect of property comprised in Re.Sy.No.383/3. What remains for consideration, therefore, is the technical objection with regard to the propriety of the Writ Petitioner in approaching the revenue authorities for the measurement and demarcation of his land in Re.Sy.No.383/5 of Lalam Village. Under normal circumstances, the measurement and demarcation of disputed property would be undertaken in execution proceedings that are filed before the appropriate Civil Court. In the present case, however, we find a peculiar situation where Ext.P1 judgment, and the decree drawn up pursuant thereto, are in favour of the Devaswom Board, and the Devaswom Board has chosen not to go for execution

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W.A.No. 1257 of 2019

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proceedings. The question then arises as to the methodology to be adopted by the Writ Petitioner for seeking a measurement and demarcation of boundaries in respect of his property in Re.Sy.No.383/5, which although not the subject matter of the dispute in A.S.No.298 of 2002, was clarified in Ext.P1 judgment as not subject to any litigation. Since the Writ Petitioner seeks to trace his right for measurement and demarcation of his property in Re.Sy.No.383/5 to the observations in Ext.P1 judgment, and the learned counsel for the writ petitioner has no objection to proceeding through execution proceedings if so permitted, we deem it appropriate to clarify that, for the limited purpose of the Writ Petitioner (Sri.A.K.Joseph) seeking a measurement and demarcation of boundaries of his properties in Re.Sy.No.383/5 of Lalam Village in Meenachil Taluk, Kottayam district, he shall be treated as a person entitled to execute the decree drawn up pursuant to Ext.P1 judgment through the execution court concerned. In view of the said permission granted to the Writ Petitioner to move for measurement and demarcation of his properties through the execution court, and to enable him to do so, we formally set aside the impugned judgment.

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The Writ Appeal is disposed as above.

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SD/- HRISHIKESH ROY CHIEF JUSTICE

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SD/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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jes

The Payappar Sree Dharma Sastha Advisory Committee v. a.K.Joseph

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The Payappar Sree Dharma Sastha Advisory Committee v. a.K.Joseph

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