REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.                 OF 2009  (Arising out of SLP (C) No. 4993 of 2006)

Payappar Sree Dharmasastha Temple A. Com.              ..Appellant

Versus

A.K. Josseph & Ors.                 .. Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

 1. Leave granted.

2. The present appeal is filed by the appellant herein challenging the  

legality of the Judgment dated 18.05.2004 passed by the Division  

Bench of the Kerala High Court dismissing not only the CMP No. 1118

of 2001 in T.D.B. No. 38 of 1996 but also the appeal registered as  

A.S. No. 298 of 2002 arising out of O.S. No. 37 of 1998.

3. In  T.D.B.  No.  38  of  1996,  the  Travancore  Devaswom  Board  

(hereinafter “the Board”) alleged that the property, which was the plaint  

schedule  property  in  O.S.  No.  37  of  1998,  belong  to  Travancore  

Devaswom Board and that said land had been illegally encroached upon  

and was in occupation of the trespassers. The aforesaid suit was filed  

for removing the trespassers.  

4. Earlier,  the  Travancore  Devaswom  Board  had  filed  a  suit  for  

evicting  the  trespassers  (the  respondents),  which  was  registered  as  

O.S. No. 37 of 1998.  The said suit was contested by the respondents.  

However, the aforesaid suit was finally dismissed.   

5. Being aggrieved by the aforesaid order an appeal was filed by the  

Board  before  the  Kerala  High  Court  contending,  inter  alia,  that  the  

plaint scheduled property belongs to it and that the respondent no. 1  

was in illegal occupation of the same and prayed for an eviction order  

against respondent no. 1.  As CMP No. 1118 of 2001 in T.D.B. No. 38 of  

1996 was pending for consideration before the Munsiff Court, the High  

Court on coming to know that another proceeding, namely, A.S. No.  

298 of 2002 is pending for consideration for the same property in the  

appellate  court,  High  Court  withdrew the  said  proceedings  from the  

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appellate court and proceeded to decide both the matter together.  The  

High Court  held that the trial court was justified in dismissing the suit  

of the Board, particularly, in view of  Exhibit B5.  After recording that  

the property did not belong to the Board and that it actually belong to  

Respondent No. 1, it was held that the Respondent No. 1 was wrongly  

dispossessed on the basis of  the subsequent survey and therefore a  

direction was issued to hand over the possession of the property to the  

Respondent No. 1.   

6. Being aggrieved by the said Judgment and Order a Special Leave  

Petition No. 15250 of 2005 (CC No. 6642 of 2005) was filed before this  

Court by the Board, which was, however, dismissed on the ground of  

inordinate delay.  The present appeal is filed by the Temple Advisory  

Committee  against  the  aforesaid  Judgment  of  the  High  Court  

contending, inter alia, that the Board is not interested in protecting its  

property and therefore the aforesaid SLP was filed casually after expiry  

of  the  limitation  period  thereby  allowing  a  large  part  of  immovable  

property  which belong to the temple to go to the third  party  which  

would adversely affect the very functioning of the temple.  This Court  

issued  notice  in  the  SLP  as  also  on  the  application  seeking  for  

condonation of delay and also on the application for interim relief.   The  

matter was consequently listed before us for final hearing upon which  

we heard the learned counsel appearing for the parties.   

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7. However,  before  we  advert  to  the  submissions  made  by  the  

counsel appearing for the respective parties, we may record a few facts  

leading  to  the  filing  of  the  present  appeal  so  as  to  enable  us  to  

effectively  consider  the  contentions  of  the  parties.  Payappar  Sree  

Dharma Sastha Temple was settled with a large track of land, which  

was necessary for the better management of the temple.  A Board was  

constituted to look after the management of the property of the Temple  

– the appellant herein.  The appellant is a Body duly constituted by the  

Board as per the bylaws issued by the Board.  Large extent of valuable  

property adjoining the temple was trespassed by some people and from  

that,  an extent of 1.85 acres was allegedly encroached upon by the  

predecessor of Respondent No. 1.  When at the behest of the Temple,  

orders were issued to evict the predecessor of Respondent No. 1, a suit  

was filed by him before the Munsiff’s court in the year 1958 praying for  

a  decree  declaring  the  plaintiff’s  rights  in  the  property  and  in  the  

alternative  for  a  declaration  that  the  State  should  pay  the  value  of  

improvements before the eviction of the plaintiff.  In the said suit, the  

Board was not impleaded as a party on the ground that the Board was  

in  unauthorized  possession  of  the  property.   A  decree  came  to  be  

passed in the said suit in favour of the plaintiff therein.  The Board had  

no knowledge about the said decree.  Even the State did not file any  

appeal against the aforesaid decree passed by the trial court.   

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8. In the year 1998, the Board filed a suit against Respondent No. 1  

in the Munsiff Court for eviction of Respondent No. 1 from the aforesaid  

suit property.  However, the aforesaid suit was dismissed by the Court  

on the ground that the said suit was not maintainable in view of the  

decree passed in the earlier suit, which was filed by Respondent No. 1.  

An appeal  was preferred by the Board from the aforesaid Judgment  

contending  inter-alia  that  the  learned  Munsiff  failed  to  consider  the  

fraud and collusion with regard to the earlier suit filed in the year 1958  

by Respondent  No.  1 and that  decree in the said suit  was obtained  

behind  the  back  of  the  Board  and  that  the  Board  was  completely  

unaware both about filing and disposal of the earlier suit.  It was also  

contended that the learned Munsiff failed to appreciate the purport of  

Section 27 of the Travancore Cochin Hindu Religious Institutions Act,  

1950 (hereinafter  referred to as “1950 Act”).   There was in fact   a  

complaint preferred by the Secretary of the Renovation Committee of  

the appellant temple alleging trespass by Respondent No. 1, invoking  

the supervisory powers of the High Court  under the 1950 Act.   The  

same was numbered as TDB No. 38 of 1996.  Since there were two  

proceedings  pending,  namely,  TDB  No.  38  of  1996 before  the  High  

Court  seeking  for  exercise  of  supervisory  powers  and  the  appeal  

pending  before  the  appellate  court  filed  by  the  Board  against  the  

Judgment of  the trial  court  dismissing the suit,  the said appeal  was  

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transferred to the High Court and same was ordered to be heard along  

with TDB No.  38 of  1996.   The aforesaid  cases were taken up for  

hearing  by  the  Division  Bench  of  the  High  Court.    However,  the  

aforesaid appeal as also the TDB No. 38 of 1996 were dismissed by the  

Division Bench of the High Court by passing a common order, which is  

the subject matter of the present appeal.   

9. The record placed before us disclose that the State Government  

on 21.06.1929 passed an order transferring 1 acre 85 cents of land to  

Thomman  Kuruvilla.   The  said  order  was  also  placed  on  record  as  

Exhibit D-4.  Subsequently, however, the State Government passed a  

second order dated 11.05.1931 rectifying the position by setting aside  

the previous order dated 21.06.1929 transferring 1 acre 85 cents of  

land to Thomman Kuruvilla, which was Exhibit D-5.  The second order  

dated  11.05.1931  passed  by  the  State  Government  was  however  

challenged  by the plaintiff (Thomman Kuruvilla) in O.S. No. 53 of 1998  

making only  the State Government  a  party  and without making the  

temple  authorities,  namely,  Payappar  Sree  Dharmasastha  Temple  a  

party to the said suit.  In the said suit the court granted an injunction  

by  which  the  State  Government  was  prevented  from  dispossessing  

predecessor of Respondent No. 1, namely, the plaintiff.  The court of  

Munsiff  subsequently  decreed  the  suit  in  favour  of  plaintiff  i.e.  the  

predecessor of Respondent No. 1 on the ground that the Divan, who  

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passed  order  dated  11.05.1931,  namely,  Exhibit  D-5,  had  no  

jurisdiction to pass such an order.  The High Court which exercised a  

supervisory power under the 1950 Act directed that a report be given  

by the Tahsildar, Meenachil Taluk, regarding the area and other details  

of  the  property  which  was  being  held  by  Respondent  No.  1.   On  

18.09.1997, the Tahsildar, Meenachil filed a detailed report with regard  

to the property before the Kerala High Court.  On 24.10.1997, the High  

Court  passed  an  order  directing  the  State  Government  to  evict  the  

illegal  occupants  in the property.   On 13.11.1997,  the property was  

handed over the Board after evicting the Respondent No. 1, Joseph and  

other  trespassers  and  after  such  eviction  the  Assistant  Devaswom  

Commissioner has been in possession of the property.  On 21.11.1997,  

an order was passed by the Kerala High Court referring to the memo  

filed by the government pleader to the effect that the trespassers over  

the property in Survey No. 383/3 of Block 21 of Lalom village have  

been evicted and it has been restored to Payappar Sree Dharmasastha  

Temple on 13.11.1997 and that the Board will carry out the necessary  

renovation work in the temple without delay.  In the meantime, a suit  

was filed by Respondent No. 1 as stated herein before the Court  of  

Munsiff, which was registered as Suit No. 37 of 1998.   

10. The  present  appellant  has  filed  the  present  appeal  before  this  

Court contending that the trial court as also the High Court failed to  

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consider  the  documents  on  record  and  decreed  the  suit  filed  by  

Respondent  No.  1  only  on  the  ground  that  the  earlier  suit  filed  by  

predecessor of Respondent No. 1 was decreed in his favour but totally  

ignoring the fact that in the said suit even the appellant herein or the  

Board were not made party, and therefore, the said decree was neither  

binding nor effective against the Board  and the temple authority or  

property.  It was also contended in the present appeal by the appellant  

that  the   High  Court  has  gone  wrong  in  not  adverting  to  crucial  

documents like Exhibit A-6 and Exhibit A-7 – Revenue Register for the  

period from 17.08.1949 as also other relevant documents like Exhibit A-

10, which was the Kuthakapattom Register.   

11. The Respondent No. 1, however, contested the aforesaid appeal  

contending, inter alia, that the present appeal is not even maintainable  

as the earlier Special Leave Petition No. 15250 of 2005 (CC No. 6642 of  

2005)  filed  by  Board  was  dismissed  on  20.07.2005.   It  was  also  

submitted on behalf  of  Respondent  No.  1 that  the appellant  has  no  

locus standi  to prefer  the present  appeal,  as  it  is  only the Advisory  

Committee of Payappar Sree Dharmasastha Temple constituted by the  

Board as per byelaws issued by the Board.   Since the earlier SLP filed  

by the Board has been already dismissed therefore a body constituted  

by the Board cannot maintain a separate proceeding of its own.  It was  

also submitted by the Respondents that the Board was plaintiff in O.S.  

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No. 37 of 1998 and also the owner, and therefore, there was no need  

for the Board to implead the appellant herein as additional plaintiff.  It  

was also submitted that if the present appeal is entertained and allowed  

the effect would be that the decree passed by the court in between the  

Board and the Respondent No. 1, which has attained finality, would be  

nullified and the appellant herein, who is neither an original plaintiff, nor  

a person impleaded as additional plaintiff at any stage of the suit before  

the decree became final, would be bestowed with a decree.   It was also  

denied  that  the  Respondent  No.  1  was  a  trespasser  and  that  the  

aforesaid property was assigned in his favour by Augustly Mathai on  

21.06.1929.   

12. The said order, however, came to be superceded by a subsequent  

order  dated  11.05.1931.   In  the  meantime,  one  Varkey  Varkey  

purchased  the  said  land  from the  aforesaid  Augusthy  Mathai.   The  

predecessor  of  Respondent  No.  1,  namely,  Thomman  Kuruvilla,  

purchased the aforesaid property from Varkey Varkey.  It is alleged that  

Thomman Kuruvilla, the father of Respondent No. 1, was in continuous  

occupation and possession of the land as if he was the owner.  It is only  

in 1957 that the State Government initiated proceedings under the Land  

Conservancy Act, as LC 65 and 66 of 1957 to evict Thomman Kuruvilla  

from the property.  The Board never came forward with any claim at  

any point of time, till 1998 when they filed O.S. No. 37 of 1998.  Since  

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it was the State who initiated eviction proceedings in LC 65 and 66 of  

1957 that Thomman Kuruvilla, father of Respondent No. 1 herein, filed  

the O.S. No. 53 of 1958, before the Additional Munsiff Court, Meenachil  

against the action of the State, seeking a declaration of his title over  

the aforementioned 1.85 acres of property and a perpetual injunction.  

It was also contended that failure to implead the Board in that suit was  

under  such  circumstances,  as  the  State  alone  was  projected  as  the  

owner and believed to be the owner.  The suit - O.S. 53 of 1958 filed by  

the  predecessor  of  Respondent  No.  1  was  decreed  on  30.10.1959  

holding that the Divan had no power to cancel the assignment.  It was  

also alleged that Thiruvithamkur Devaswom is a statutory body which  

came into being only by Act of 1950 and before that the Government  

and  Devaswom was  one  and  the  same  and  there  was  no  separate  

existence,  and  therefore,  whatever  order  was  passed  by  the  

Government  prior  to  1950  regarding  the  land  in  question  was  also  

binding upon the Board.  It was also contended that Section 27 of the  

1950 Act does not nullify any assignment by the Government before the  

Devaswom came into existence.

13. In  order  to  appreciate  the  aforesaid  contentions  we  have  also  

perused the provisions of the aforesaid 1950 Act to which reference was  

made by the counsel appearing for the parties before us.  After coming  

into the force of 1950 Act the administration of temples and all their  

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properties and funds, except the Sree Padmanabhaswami Temple got  

vested in the Travancore Board.

Section 27 of the Act reads as under:

“Devaswom  properties:  Immovable  properties  entered  or  classed  in  the  revenue  records  as  Devaswom  Vaga  or  Devaswom Poramboke and such other Pandaravaga lands  as are in  the possession  or  enjoyment of  the Devaswom  mentioned  in  Schedule  1  after  the  30th Meenam  1097  corresponding to the 12th April, 1922 shall be dealt with as  Devaswom  Properties.   The  provisions  of  the  Land  Conservancy Act of 1091 (IV of 1091) shall be applicable to  Devaswom lands as in the case of Government lands”

14. It  is  clearly  mentioned  in  the  aforesaid  provision  that  the  

immovable  properties  entered  or  classed  in  the  revenue  records  as  

Devaswom property,  which is  in the possession or enjoyment of the  

Devaswom  effective  from  12th April,  1922  shall  be  dealt  with  as  

Devaswom Properties.   In  the  suit  filed  by  the  Board  a  number  of  

documents were placed on record, namely, Exhibit A-6 and Exhibit A-7  

–  Revenue  Register  for  the  period  from  17.08.1949  as  also  other  

relevant  documents  like  Exhibit  A-10,  which was  the Kuthakapattom  

Register,  relating  to  the  land  in  question  but  it  appears  from  the  

Judgment passed by the High Court that the High Court came to the  

conclusion that the Board could not produce any document which shows  

that the schedule property belong to the Board.   

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15. On consideration of the contentions raised before us, we find that  

the trial court as also the High Court were persuaded to dismiss the suit  

filed by the Board, mainly, on the ground that the Respondent No. 1  

obtained a decree in his favour by filing a suit in 1980.  But it appears  

to us that the said suit was filed in the year 1958 by the Respondent  

No. 1 only against the State Government.  Board claims to be the owner  

of  the  suit  property  which  was  the  subject  matter  of  the  suit,  and  

therefore, the Board was a necessary party.  Since the Board was not  

arrayed as a party to the suit and decree was obtained only against the  

State  Government,  so,  the said  decree at  the  most  be binding only  

against the State and not against the Board.  The High Court without  

even considering the contentions that the Judgment in O.S. 53 of 1958  

is not binding on the Board confirmed the said Judgment of the trial  

court only on the ground that there is already a decree passed in favour  

of Respondent No. 1 in O.S. No. 53 of 1958.   But while doing so, the  

High Court  totally  ignored the earlier  Judgment passed by the same  

High  Court  and  also  the  report  of  the  Tahsildar  with  regard  to  the  

encroachment of the temple land by the Respondent No. 1.   We do not  

find any discussion of the material on record regarding proceeding in  

the Kerala High Court initiated in exercise of supervisory power and the  

report obtained by the High Court from the Tehsildar in that regard.  

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There is also no discussion with regard to effect and implication of the  

orders of the High Court dated 24.10.1997 and dated 21.11.1997.

16. The interpretation sought to be given by the High Court so far as  

Section 27 of the 1950 Act is concerned, in our considered opinion was  

incorrect and the High Court was not justified to come to the same as it  

totally  overlooked  the  fact  that  Section  27  stipulates  immovable  

properties entered or classed in the revenue records as Devaswom Vaga  

or Devaswom Poramboke after 12th April 1922 would be dealt with as  

Devaswom Properties whether or not the same Devaswom properties  

was the issue which was sought to be resolved and adjudicated by the  

High Court by looking into various documents which were placed on  

record.   On going through the records,  we find that  the High Court  

upheld the order of the trial court dismissing the suit filed by the Board,  

mainly, on two grounds, namely, the decree passed in suit no. 53 of  

1958, which according to the High Court was final and binding and on  

interpretation of Section 27 of the Travancore Cochin Hindu Religious  

Institution  Act,  1950,  which  according  to  us  was  an  incorrect  

interpretation, particularly, in view of the fact that the findings arrived  

at by the High Court that the Board could not produce evidence that it  

was in possession of the property on the date in question.   

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17. At this stage, we are required to deal with and also to answer the  

contentions raised by the counsel appearing for Respondent No. 1 that  

the present appeal itself is not maintainable as the earlier SLP filed by  

the  Board  was  dismissed  on  the  ground  of  limitation  and  the  body  

created by the Board cannot maintain this appeal.  It is indeed true that  

the Board had filed Special Leave Petition No. 15250 of 2005 (CC No.  

6642  of  2005)  but  the  said  SLP  was  dismissed  on  the  ground  of  

limitation as the said SLP was filed by the Board beyond the period of  

limitation.  The appellant herein is a legal entity in view of the fact that  

it was constituted by the Board as per the byelaws issued by the Board.  

While filing the present appeal, the appellant has stated that its interest  

in filing this  appeal  is only to protect the Board properties from the  

encroachers  and  to  see  that  the  lands  belonging  to  temples  and  

religious  worships  are  not  tampered  with  and  also  to  give  effective  

implementation  to  the  provisions  of  the  Travancore  Cochin  Hindu  

Religious  Institution  Act,  1950,  interest  and  purpose  of  which  is  to  

protect Devaswom properties.   The contention of Respondent No. 1  

that the appellant has no locus standi to file the present petition also  

cannot be raised and canvass at this stage in view of the decision of the  

Supreme  Court  in  Gurpreet  Singh  Bhullar  vs.  Union  of  India  

(2006) 3 SCC 758, wherein it was held that:

“18.  This  contention  need not  detain  us  any  longer,  because  permission  to  file  SLP  has  

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already  been  granted  by  this  Court  on  6-1- 2006”.

18. In the present case also we find that an order was passed by this  

Court on 27.02.2006 when permission to file the SLP was granted, and  

therefore, the said question of locus standi cannot be re-agitated before  

this  Court.   We may also  refer  to  another  decision  of  this  Court  in  

Jasbir Singh vs. Vipin Kumar Jaggi (2001) 8 SCC 289, wherein it  

was held that:

“11. At  the  outset,  a  preliminary  objection  raised by Respondent 1 is dealt with. According  to  Respondent  1  this  appeal  has  been  preferred from an order passed in proceedings  to which the appellant was not a party and the  appellant  has  not  challenged  the  order  by  which  his  application  for  intervention  was  rejected.  It  is  contended  that  in  the  circumstances, the appeal preferred before us  is  not  maintainable.  The  objection,  assuming  that it  had some force, does not survive the  order  passed  by  this  Court  on  3-11-2000  granting permission to the appellant to file the  special leave petition.”

19. In  Raju Ramsingh Vasave vs. Mahesh Deorao Bhivapurkr,  

(2008) 9 SCC 54, this Court has held as under:

“46.  We could have dismissed this application  on the simple ground that the appellant has no  locus standi. We did not do so because as a  constitutional court we felt it to be our duty to  lay  down  the  law  correctly  so  that  similar  mistakes  are  not  committed  in  future.  Apart  from the general power of the superior courts  vested in it under Article 226 or Article 32 of  

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the  Constitution  of  India,  this  Court  is  bestowed with a greater responsibility by the  makers of the Constitution in terms of Articles  141 and 142 of the Constitution. Decisions are  galore  wherein  this  Court  unhesitatingly  exercised  such  jurisdiction  to  resort  to  the  creative interpretation to arrive at a just result  in regard to the societal and/or public interest.  We thought that it is a case of that nature. We  may notice that recently such a legal principle  has  been considered  by  this  Court  in  Indian  Bank v.  Godhara Nagrik  Coop. Credit  Society  

Ltd.22 This Court, however, while laying down  the law suitably moulded the relief so as to do  complete justice between the parties.”

20. In view of the aforesaid settled legal position and also in view of  

the fact that permission to file special leave petition was granted by this  

Court, if we find that the order of the High Court cannot be maintained  

and is required to be set aside, we would not hesitate to do so because  

of the locus of the appellant to file the present appeal in this Court.  

The High Court had passed the impugned order only on the basis of the  

fact that earlier decree would be binding on the appellant as also the  

Board and also on interpretation given to Section 27 of the Travancore  

Cochin Hindu Religious Institution Act, 1950.  We have already held and  

recorded a finding that both the aforesaid views taken by the High Court  

are incorrect and required to be re-considered by the High Court.   

21. After considering all the relevant documents including the revenue  

record we find that the High Court could not appreciated the evidence  

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on record and those records would not be ignored by the High Court as  

the High Court was exercising the jurisdiction of the 1st Appellate Court  

and therefore the High Court has committed a manifest error of law  

apparent on the face of the record.   

22. Therefore, we set aside the impugned Judgment and Order passed  

by the High Court and remit back the matter to the High Court for fresh  

consideration of all the aspects, particularly, all the evidence that exist  

on the record.  Since the matter is old, the High Court is requested to  

dispose of the proceedings as expeditiously as possible.  The impugned  

Judgment and order of the High Court is set aside.  Accordingly, the  

appeal is allowed to the aforesaid extent.

…………………..…………………..J. (S.B. Sinha)

…………………..……………………J. (Dr. Mukundakam Sharma)

New Delhi, July 7, 2009

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