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CASE NO.: Appeal (civil)  3135 of 2007

PETITIONER: A.A. GOPALAKRISHNAN

RESPONDENT: COCHIN DEVASWOM BOARD & ORS

DATE OF JUDGMENT: 19/07/2007

BENCH: K. G. Balakrishnan & R V Raveendran & Dalveer Bhandari

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO 3135 OF 2007 [@ SPECIAL LEAVE PETITION (CIVIL) NO. 26712 OF 2005)]

K.G. BALAKRISHNAN, CJI

       Leave granted. Application for exemption from filing O.T. is  granted.

2.      An extent of 21 cents of land in Survey No.1042/2 of  Mulanthuruthy village, Kanayannur Taluk, Ernakulam District,  belonged  to Karikkode Sastha and Maha Vishnu temple under the management of  Cochin Devaswom Board (’Board’ for short).

3.      One T.K.Asokan filed a complaint before the High Court of Kerala  alleging that respondents 3 and 4 had encroached upon the said land, and  were in illegal possession. The complaint was registered as CDB  No.3/1996. The High Court by order dated 12.6.1997 held that the said   Sy No.1042/2 (21 cents) was part of the property of Karikkode Sastha  and Vishnu Temple and gave a direction to the Board to take possession  of the said land without delay. Respondents 3 and 4 challenged the said  order before this Court in SLP (C) No.12985/1997 contending that they  had acquired title over the said land by their long possession. This Court  disposed of the said petition by the following order dated 30.3.1998:

"In the facts and circumstances of this case, having heard learned  counsel for the parties, we do not think it is a fit case for our  interference against the impugned direction of the High Court.  The property in question should be delivered to the Devasthanam,  if has not been delivered in the meantime. But since the High  Court has given a declaration in respect of the property in a  summary proceedings, it would be open for the petitioners to  establish its title in a regularly instituted civil suit, if so advised  and in the event of such a suit is filed, the finding the High Court  will not be a bar for the civil court."

In view of the said order of this Court, the High Court closed the  complaint (CDB No.3/1996) by order dated 9.9.1998, with a direction to  the Devaswom Board to take possession of the said land, by taking police  help, if necessary.

4.      Respondents 3 to 5 thereafter filed O.S.No.399/1998 on the file of  the Sub-Court, Ernakulam, against the Devaswom Board seeking  declaration of title in respect of Sy.No.1042/2 and consequential  injunction. During the pendency of the suit, they submitted a

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representation dated 6.7.2000 to the Board requesting for a settlement.  They proposed an exchange of Sy. No.1042/2 (21 cents of land which  belonged to Karikkode Devaswom) with Sy. No.1043 (30 cents of land  which was in the possession of Karikkode Devaswom, but title to which  was claimed by respondent No. 3).  

5.      Without even waiting for a reply for the letter proposing  settlement, respondents 3 to 5 filed a writ petition (OP No.20251/2000)  before the High Court and secured an ex parte order dated 27.7.2000  directing the Board to consider their representation and pass an order  thereon. In view of the said direction, the Board considered the  representation and passed a resolution dated 29.8.2000 agreeing to the  proposal and entered into a compromise with respondents 3 to 5 on  30.8.2000. The said compromise petition recorded a settlement that the  parties will enter into a Deed of Exchange, by which plaintiffs  (respondents 3 to 5 herein) would surrender their title and interest in  respect of 30 cents in Survey No.1043 (Resurvey No.175/5) of  Mulanthuruthy village, Kanayannur Taluk, Ernakulam District (which  was the subject matter of the Purchase Certificate No.581/76 and 586/76  dated 21.2.1976 issued by the Deputy Collector (LT) No.IV, Ernakulam)  where the three idols/vigrahas of Upadevanmar (Sri Malikappuram, Sri  Malanada and another) were situated in favour of the defendant (Board)  and in exchange the Defendant (Board) would surrender the right, title  and interest in respect of Sy. No.1042/2 (measuring 21 cents) in favour of  the plaintiffs. The Sub-court, Ernakulam decreed O.S. No.399/1998 on  18.9.2000 in terms of the said compromise.

6.      The appellant herein challenged the said compromise in writ  petition (O.P.No.19728/2001) before the High Court alleging that the  settlement of the suit was collusive and the land which was agreed to be  transferred by respondent Nos.3 to 5 by way of exchange in favour of the  Devaswom Board was the property of the Karikkode temple itself; and  that to defeat the directions by this Court and the High Court, requiring  surrender of possession of Sy. No.1042/2, the officers of Devaswom  Board had colluded with respondent Nos.3 to 5 and permitted them to  retain Sy. No.1042/2 illegally. The writ petition was dismissed by holding  that the Devaswom Board got possession of 30 cents of land in exchange  for 21 cents in pursuance of a settlement between the parties, and  therefore there was no case for interference. The said judgment of the  High Court is under challenge in this appeal.

7.      We have heard learned counsel for the appellant and learned  counsel for the respondents.  We find considerable force in the contention  of the appellant that the Devaswom Board really got nothing out of the  settlement and it gave to respondents 3 to 5 a property (Sy. No.1042/2)  which belonged to the Karikkode Temple in regard to which this Court  and High Court had specifically directed the Board to take immediate  possession. Survey No.1042/2 adjoins the temple. Survey No.1043, it is  seen, is the land in front of the temple and is a part of the temple where  there are three structures housing idols/vigrahas of Upadevadas. The fact  that the said Sy.No.1043 had always been in the possession and  enjoyment of the temple, is not in dispute. The fact that Sy. No. 1043 was  never under cultivation of respondents 3 to 5 at any time, is also not  seriously contested.  

8.      During the hearing the learned counsel for respondents 3 to 5 made  available a copy of an order dated 21.2.1976 passed by the Special  Tehsildar, LR No.II, Ernakulam in SMP 3458/75 to establish  the alleged  title to Sy. No.1043. After perusing the said order, learned counsel for the  appellant pointed out that the said order did not refer to Sy.No.1043. He  submitted that even if it related to Sy. No.1043, it was evident that the  third respondent, an employee of the Board had apparently in collusion  with some revenue officials, got a suo motu proceedings  initiated under  section 72 of the Kerala Land Reforms Act, 1963 showing third  respondent as a ’cultivating tenant’ under Karikkode Devaswom, and

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secured an ex parte order dated 21.2.1976, sanctioning the assignment of  the land under sub-section (5) of section 72F of the said Act. The learned  counsel for appellant further submitted that the very fact that the third  respondent, an employee of the temple, has been shown to be the  ’cultivating tenant’ of the land in front of the temple, containing the  structures where Upadevadas are installed, in a suo moto proceedings,  clearly demonstrated collusion/fraud in securing the order dated  21.2.1976. Be that as it may.  

9.      What is surprising is that when respondents 3 to 5 claimed  ownership of Survey No.1043, which was the front portion of the temple  premises in the possession of the temple (in the proposal for settlement  dated 6.7.2000), the Devaswom Board, instead of investigating and  verifying as to how they could claim ownership over temple property,  strangely agreed for a settlement under which the temple was to get  Sy.No.1043 (which was a temple land already in its possession), in  exchange for giving away another temple land (Sy.No.1042/2) to  respondents 3 to 5. It is significant that the Board resolution dated  29.8.2000 agreeing for the settlement proposal clearly records that  Sy.No.1043 is already in the possession of the temple.     

10.     The properties of deities, temples and Devaswom Boards, require  to be protected and safeguarded by their Trustees/Archaks/  Sebaits/employees. Instances are many where persons entrusted with the  duty of managing and safeguarding the properties of temples, deities and  Devaswom Boards have usurped and misappropriated such properties by  setting up false claims of ownership or tenancy, or adverse possession.  This is possible only with the passive or active collusion of the concerned  authorities. Such acts of ’fences eating the crops’ should be dealt with  sternly. The Government, members or trustees of Boards/Trusts, and  devotees should be vigilant to prevent any such usurpation or  encroachment. It is also the duty of courts to protect and safeguard the  properties of religious and charitable institutions from wrongful claims or  misappropriation.  

11.     Learned counsel for respondents 3 and 4 submitted that the  settlement in the suit (OS No.399/1998) was validly arrived at between  them (Plaintiffs) and the Devaswom Board (defendant), that the  Devaswom Board had considered the proposal after taking legal advice  and had duly passed a resolution to settle the suit. It is further submitted  that a decree having been made in terms of the compromise and such  decree having attained finality, it cannot be questioned, interfered or set  aside at the instance of a third party in a writ proceeding. Order 23 Rule 3  of CPC deals with compromise of suits. Rule 3A provides that no suit  shall lie to set aside a decree on the ground that the compromise on which  the decree is based was not lawful. We are of the considered view that the  bar contained in Rule 3A will not come in the way of the High Court  examining the validity of a compromise decree, when allegations of  fraud/collusion are made against a statutory authority which entered into  such compromise. While, it is true that decrees of civil courts which have  attained finality should not be interfered lightly, challenge to such  compromise decrees by an aggrieved devotee, who was not a party to the  suit, cannot be rejected, where fraud/collusion on the part of officers of a  statutory board is made out. Further, when the High Court by order dated  9.9.1998 had directed the Board to take possession of Sy. No.1042/2  immediately from respondents 3 and 4 in CDB No.3/1996, in a complaint  by another devotee, it was improper for the Board to enter into a  settlement with respondents No.2 and 3, giving up the right, title and  interest in Sy. No.1042/2, without the permission of the court which  passed such order. Viewed from any angle, the compromise decree  cannot be sustained and is liable to be set aside.  

12.     In view of the above, we allow this appeal as follows :  

(i)     The compromise dated 30.8.2000 and compromise decree dated

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18.9.2000 in O.S. No.399/1998 on the file of the Sub-court,  Ernakulam, are set aside.  

(ii)    The first respondent Board is directed to take possession of Sy.  No.1042/2 as already directed by this Court and High Court.

(iii)   It is open to respondents 3 to 5 to pursue OS No.399 of 1998, if  they so desire, in which event, the Sub-Court, Ernakulam, shall  dispose it in accordance with law.

(iv)    The Collector, Ernakulam is directed to hold an enquiry as to the  circumstances in which the order dated 21.2.1976 in SMP No.3458  of 1975 was passed on the file of the Special Tahsildar, LR No.II,  Ernakulam, and take consequential remedial action.  

(v)     The first respondent-Board is at liberty to take action in accordance  with law in regard to Survey No.1043.  

(vi)    Parties to bear their respective costs.