T. Ramachandran, J.@mdashThis appeal arises from the judgment and decree of the Sub Judge of Vadakara in O.S. No. 156/93.
2. The Appellants were Defendants 1,2. and 4 in O.S. No. 156/93 before the sub Court of Vadakara. That suit was filed by the first Respondent as Plaintiff for recovery of possession of the plaint schedule property with damages. The facts are that the first Respondent is the oldest male member of Malappangatt tavazhi. He filed the suit as Karanavan of the said tavazhi for recovery of possession of the plaint schedule property. Item No. 1 of the plaint schedule was given on lease as per the lease deed dated 13.6.1982. Items 2 to 4 belonged to the said tavazhi and they were in possession of them. The third Defendant was the earlier Karanavan and Chandu Kurup was the predecessor. While the 3rd Defendant was the Karanavan, he allowed Defendants 1 and 2 to take income from the plaint schedule properties. Later Defendants 1 and 2 formed a trust. Thus, the plaint schedule properties are trust properties now. It was alleged that Defendants 1 and 2 or the trust have no right to get possession of the plaint schedule properties According to the Plaintiff the trust was formed only to defeat the right of the family members. There was a building in the property and there were several trees. The house was demolished and one jack tree and mango tree has been cut and removed. Thus, Rs. 10,000/ - was claimed as damages by the Plaintiff apart from recovery of possession on behalf of the tavazhi. Defendants 1,2 and 4 contended that the suit was not maintainable and that after the Kerala Hindu Joint Family Abolition Act, 1976 the Plaintiff cannot file the suit as Karanavan. It was also contended that as the Plaintiff was one of the trustees, the cannot act against the trust. It was also contended that the house was demolished and the trees were cut as per the resolution recorded in the minutes book and the Plaintiff was signatory to it. the fourth Defendant is a trust and the Plaintiff was not entitled to get recovery of possession of damages. It was also contended that the suit was not filed in the representative capacity. Alter framing necessary issues, the lower Court marked Exts.A1 and B1 to B6 and examined PW1 and DW1 and DW2. The lower court held that by impleading the supplementary 4th Defendant the suit was not bad for non joinder of necessary parties. It was found that the Court fee paid was correct. Relying on the decision reported in 1993 (2) KLT 67 (Valsala v. Sundaram Nadar), the lower Court held that the suit was maintainable as one co-owner is entitled to recover possession on behalf of the other co-owners. Thus, it was held that there was no necessity to file the suit under Order 1, Rule 8 of Code of Civil Procedure. Regarding the damage it was held that the Plaintiff can recover proportionate share of damages due to him. Thus, the lower Court decreed the suit for recovery of possession of the share of the co-owners other than that mentioned in Ext.B5. it was further decreed that the Plaintiff was entitled to recover his share of damages with interest at 6% from the date of suit till realisation. Aggrieved by that judgment and decree this appeal is filed. Cross objections are filed for granting the reliefs fully as prayed for.
3. According to the learned Counsel appearing for the Appellants the lower Court was not correct in decreeing the suit for recovery of possession of the share of the Plaintiff and that the lower Court went wrong in allowing damages due to the Plaintiff as one of the sharers. According to him the decision reported in 1993(2) KLT 67 is not applicable to the facts of the present case. It was argued that in view of Section 14 of the Trust Act one of the trustees cannot act against the interest of the trust Aggrieved by the partial decree, the Plaintiff filed cross objections stating that the decree ought to have been to cover the plaint schedule property and damages of Rs. 10,000/-.
4. The points arising for consideration are: (1) Whether Section 14 of the Indian Trust Act is a bar for filing the suit; (2) Whether the Plaintiff was entitled to get recovery of the plaint schedule property and (3) Whether the Plaintiff was, entitled to damages as prayed for.
5. Point No. 1: The Plaintiff is the present Karanavan of his tavazhi. Thus, as Karanavan of the tavazhi he has filed the suit for recovery of possession of the plaint schedule properties on behalf of the tavazhi. The first Defendant is the President of Eramala Kshethra Committee. The second Defendant is the Secretary and the 4th Defendant is the trust represented by the managing trustee. They are the Appellants in this appeal the trust was formed for the administration of the temple. In the trust some of the members of the tavazhi were parties and they were the trustees, the Plaintiff is one of the trustees. There was an old building in the property and as per the resolution of the trustees as recorded in the minutes book, the house was decided to be demolished and two trees were cut and removed. The 3rd Defendant is another trustee and he was the former karanavan. As the Plaintiff is one of the trustees, it is contended that he cannot file a suit against the trust in view of Section 14 of the Indian Trusts Act. It is also seen that all the co-owners are not parties to the sit. Ext.B1 is the minutes of the trust. Ext.B1 shows that the Plaintiff was one of the signatories to the resolution by which the building was decided to be demolished the suit was not filed in a representative capacity and the Plaintiff wanted recovery of possession only as karanavan.Ext.B4 is the trust deed of the year 1988. Ten tavazhi members and others formed the trust. Executant No. 2 was the third Defendant and executant No. 3 was the Plaintiff. Thus, the trust was created for the proper management of the temple. Now, the third Defendant has supported the Plaintiff in the suit. Thus, as the Plaintiff is one of the trustees,'' Section 14 of the Trusts Act is a bar for filing the suit against the interests of the trust. Thus, I hold the suit is not maintainable.
6. Point No. 2: It is seen that after the suit as per Ext.B5 many members of the tavazhi assigned their right to the trust. Thus, the trust is now has the capacity of co-owner also. The Joint Family Abolition Act came into force in the year 1976. As such there is no karanavan in the tavazhi. PW1 stated that he wanted the relief only as karanavan. Thus, the suit is not maintainable. The lower Court relied on the decision reported in 1993 (2) KLT 67 (Valsala v. Sundaram Nadar). Thee it was held that one co-owner is entitled to recover possession of the building without the junction of the other co-owners. But that was a suit against a stranger and that was why this Court held that one of the co-owners is entitled to recover possession of the building without the junction of other co-owners. In view of Ext. B5, it is clear that the trust has got assignment of the share of some of the co-owners II is futile to contend that on the date of suit, the trust was not in the position of the co-owner. The Court can take cognizance of subsequent events in such cases. The decision reported in 1972 KarLJ 49 (Unnikrishna Menon v. Kozhikkot Narayana Menon) held that a co-owner in possession cannot be evicted from property by another co-owner. The same view as held by this Court in the decision reported in 1963 KarLJ 1164 (Avanthika v. Sita Bai). The lower Court relied on the decision reported in 1986 KLT 481 (Andappan v. Saramma Varghese). In that decision it was held that a petition filed under the Kerala Buildings (Lease and Rent Control) Act 1965 by one co-sharer for eviction was maintainable. That was a decision under a special statute and it is not applicable to the facts of the present case. It is to be noted that the suit was not filed in a representative capacity under Order 1 Rule 8 of Code of Civil Procedure. To grant a prayer for recovery of possession all the co-owners must be on the party array. This Court in the decision reported in 1989 (2) KLT 38, Case No. 46 (Suhara v. Hilda Godfred) held that when thee are other co-sharers suits by one of the co-sharers without impleading others is not maintainable.
7. The learned Counsel appearing for the Respondents argued before me that Ext.B5 cannot be considered as it was after the suit. As against this argument the learned Counsel appearing for the Appellant cited the decisions reported in
8. Point No. 3: The lower Court granted share of damages due to the Plaintiff as payable by Defendants 1,2 and 4. But it is to be noted that the damage claimed is regarding the demolition of the building and cutting of trees. But that act was done in pursuance of the resolution passed by the trustees as noted in the minutes book. It is also to be noted that the Plaintiff and the 3rd Defendant have signed in the resolution as the trustees. Thus, they are bound by that resolution and as such they are not entitled to get any compensation or damages.
For the above reasons, this appeal is allowed and the judgment and decree of the Court below are set aside and suit is dismissed. The parties are to bear their costs. The cross objections are dismissed.
