Dismissed

The Executive Officer, Payyanur Sree Subrahmanya Swami Temple v. Rajeev Gandhi Memorial Cultural Centre

Kerala HC20 Oct 2021FAO (RO)/4/2021

Case brief

AI extract

What is this about?

The High Court in FAO (RO) No. 4 of 2021 addressed two substantial questions of law. It held that adjudicating disputed title in a suit for injunction simplicitor was erroneous and set aside the first appellate court's remand order to allow plaint amendment. It also affirmed that writ jurisdiction cannot supersede the civil court for determining property title, citing L. Chandra Kumar.

What did the court decide?

The order of remand of the First Appellate Court is set aside. The appeal is dismissed. Parties directed to appear before the First Appellate Court on 10/11/2021.

The Executive Officer, Payyanur Sree Subrahmanya Swami… — Property and Title | Kerala HC (2021)

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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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WEDNESDAY, THE 20^th DAY OF OCTOBER 2021 / 28TH ASWINA, 1943

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FAO (RO) NO. 4 OF 2021

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AGAINST THE JUDGMENT DATED 21.08.2018 IN AS No.167/2013 OF ADDITIONAL

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DISTRICT COURT - II, THALASSERY

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AGAINST THE JUDGMENT AND DECREE DATED 30.11.2011 IN OS No.61/2005 OF

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SUB COURT, PAYYANNUR

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APPELLANTS/RESPONDENTS No.1, 11, 12 & 13/DEFENDANTS No.1, 11,12 & 13:

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1 THE EXECUTIVE OFFICER, PAYYANUR SREE SUBRAHMANYA SWAMI TEMPLE, PAYYANNUR, P.O.PAYYANNUR, KANNUR-670 307.

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2 T.M.RADHAKRISHNAN THIRUMUMBU, AGED 65 YEARS, S/o BALAKRISHNAN THIRUMUMBU, MAHADEVAGRAMAM, P.O.PAYYANNUR, KANNUR-670 307.

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3 GIREESHAN THIRUMUMBU, AGED 59 YEARS, S/o BALAKRISHNAN THIRUMUMBU, KANDANGALI, P.O.PAYYANNUR, KANNUR-670 307.

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4 SANKARA NARAYANAN THIRUMUMBU, AGED 62 YEARS, MAHADEVA GRAMAM, P.O. PAYYANNUR, KANNUR-670 307.

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BY ADV MAHESH V RAMAKRISHNAN

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RESPONDENTS/APPELLANT & RESPONDENTS 2 TO 6 & 8 TO 10/PLAINTIFF &

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DEFENDANTS 2 TO 6 & 8 TO 10 (7th RESPONDENT/7 th DEFENDANT DIED) :

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1 RAJEEV GANDHI MEMORIAL CULTURAL CENTRE,

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KELOTH, PAYYANNUR, REPRESENTED BY ITS PRESIDENT, KANNOTH KUNHIKRISHNAN NAIR @ K.N.KANNOTH, AGED 83 YEARS, S/o LATE T.V.RAMAN NAIR, RESIDING AT KELOTH, P.O.PAYYANNUR, KANNUR-670 307.

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2 K.K.RAJEEVAN, AGED 51 YEARS,

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S/o V.M.K.K.PODUVAL, RESIDING AT VELLUR, P.O.VELLUR, KANNUR-670 307.

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FAO (RO) No.4 of 2021

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3 KARIPATH MADHAVAN, AGED 77 YEARS, S/o APPU PODUVAL KELOTH, P.O.PAYYANNUR, KANNUR-670 307.

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4 C.V.RAMAKRISHNAN, AGED 70 YEARS, ADVOCATE, P.O.PAYYANNUR, KANNUR-670 307.

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5 EDICHERRY RAMACHANDRA PODUVAL, AGED 70 YEARS, MAHADEVA GRAMAM, P.O.PAYYANNUR, KANNUR-670 307.

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6 P.PURUSHOTHAMAN, AGED 57 YEARS, S/o APPU PODUVAL, MAHADEVA GRAMAM, P.O.PAYYANNUR, KANNUR-670 307.

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7 ACHAMVEETTIL NARAYANA PODUVAL, AGED 65 YEARS, KOKKANISSERY, P.O.PAYYANNUR, KANNUR-670 307.

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8 T.K.NARAYANAN MASTER, AGED 59 YEARS, MAHADEVA GRAMAM, P.O.PAYYANNUR, KANNUR-670 307.

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9 K.KARUNAKARAN, AGED 65 YEARS, MAHADEVA GRAMAM, P.O.PAYYANNUR, KANNUR-670 307. BY ADV SHERLY MOL THOMAS FOR R1

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) No.4 of 2021

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JUDGMENT

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The suit is one for injunction simplicitor without a

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substantial prayer for declaration of disputed title. The plaintiffs claim title over the property from a purchase certificate of the year 1976 and a subsequent document executed. It is submitted that though Devaswom property is exempted under Section 3 of KLR Act, since the tenancy was commenced prior to the commencement of the said Act, it is well within the jurisdiction of Land Tribunal to issue purchase certificate. It really requires adjudication, for which there should be a substantial prayer in the suit for declaration of disputed title. In the proceedings for issuance of purchase certificate, the defendant Devaswom was made as a respondent, which would clearly admit their prior title and interest over the property. The competency

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of the person, who represented the Devaswom in the abovesaid proceedings, is also under challenge, for which a simple suit for injunction cannot be maintained without a substantial prayer for adjudicating the disputed title. The

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FAO (RO) No.4 of 2021

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first appellate court went wrong in going into the disputed title in a suit for injunction simplicitor and the same would constitute a substantial question of law. The first appellate court is not justified in adjudicating the disputed title in a suit for injunction simplicitor and it would cause prejudice to the parties. But there can be an open remand to the trial court so as to enable the parties to amend the plaint since the litigation was started in the year 2005, rather than referring the parties for a fresh suit. For that purpose, the order of remand of the first appellate court will stand set aside.

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Yet another substantial question also came up for

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consideration as to whether this court can decide the disputed title over immovable property in a writ petition, without the recourse of the civil court. It was submitted

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that earlier in a writ O.P., this court has decided the

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title of plaintiff over the property. A seven Judge Bench of Apex Court in L. Chandra Kumar v. Union of India and

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Others [1997 KHC 503 : 1997 (3) SCC 261 : 1997 (2) KLT SN

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11] laid down the legal position that it is not permissible

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FAO (RO) No.4 of 2021

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to bypass the jurisdiction of the trial court in the matter of adjudication of disputed title.

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The appeal will stand disposed of accordingly. The

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parties shall appear before the first appellate court on 10/11/2021.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

The Executive Officer, Payyanur Sree Subrahmanya Swami Temple v. Rajeev Gandhi Memorial Cultural Centre

Case brief

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The Executive Officer, Payyanur Sree Subrahmanya Swami Temple v. Rajeev Gandhi Memorial Cultural Centre

Case brief

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