1. The defendants 1 to 3 in O.S. No.25 of 2009, a suit filed for declaration that a settlement deed executed in favour of defendants 1 and 2 by the 3rd defendant for management of the Sree Kaninadu Bhagavathi Temple is void and for recovery of possession, have come up in these appeals, aggrieved by the reversal of the judgment and decree rendered by the Munsiff Court, Perumbavoor, by the Sub Court, Perumbavoor in A.S. No.23 of 2011. The plaintiffs, on the other hand, have come up with the Cross Objection, contending that the first appellate court ought to have allowed the appeal in full and not in part.

2. The brief facts necessary for the disposal of the appeals and the cross objection are as follows:

The dispute centers around 18 Ares of land of Kaninadu Sree Bhagavathi Temple. The deity of the temple is made as the 1st plaintiff, represented by plaintiffs 2 and 3, who are the office bearers of a registered society, by name, Kaninadu Sree Bhagavathi Khesthra Bharana Samithy, a society registered under the provisions of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. The 3rd defendant, through the power of attorney holder, executed a settlement deed in favour of defendants 1 and 2 by which the right of management of the temple was given to the 1st defendant. The plaintiffs impugn the settlement deed on the ground that the 3rd defendant could not have alienated the property of the temple because the property of the temple did not belong to Komana Mana, of which the 3rd defendant claims to be the eldest member, but, on the contrary, to the deity itself. The plaintiffs further claim that the temple is a public temple and therefore the management of the temple vests with the worshipers and thus they formed an association which was registered as a Society under the provisions of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. The plaintiffs further allege that the 1st defendant had trespassed into the property and had taken away the records, and thus they have thrown out the plaintiffs from the management of the society and therefore are constrained to institute the suit for recovery. Additionally, it is pleaded that the 3rd defendant does not have any right to alienate the properties of the temple, which belongs to the deity. In support of their plea, various registers and minute books pertaining to the selection of the office bearers of the society and two tax receipts showing the remittance of tax in respect of the plaint schedule property in the name of the deity were produced. The defendants, on the other hand, contended that the plaintiffs 2 and 3 are usurpers and do not have any right over the management of the temple. The management of the temple was always vested with the Bhramaswom and belonged to the family of Komana Mana, who in turn had derived the right under Ext.B1 partition deed. The 3rd defendant, being the eldest member of the family, had transferred the right of management of the temple to the 1st defendant because the family found it difficult to manage the expenses of the temple. It is further contended that, going by Ext.A2 settlement deed, the 1st defendant had no absolute right over the property but only the right of management, and if it is found that the temple is not being administered properly, the 3rd defendant retains the right to recall Ext.A2 and thereby take back the management of the temple. On behalf of the plaintiffs, Exts.A1 to A12 documents were produced, and PW1 to PW3 were examined. On behalf of the defendants, Ext.B1 to B7 documents were produced, and DW1 was examined. The trial court, on appreciation of the oral and documentary evidence, came to the conclusion that the plaintiffs 2 and 3 have not proved that they are the office bearers of the registered society and that they have no right to manage the affairs of the society and accordingly dismissed the suit. Aggrieved, the plaintiffs preferred A.S. No.23 of 2011 before the Sub Court, Perumbavoor and, the first appellate court, on reappreciation of the evidence, came to the conclusion that though the plaintiffs 2 and 3 have failed to prove that they are the office bearers of the society, still, the suit can be maintained on the strength that they are the worshipers of the temple and have got the right vested in Ext.A11. Further, it was found that the plaint schedule property absolutely belonged to the temple and, therefore, the 3rd defendant had no right to alienate the property of the temple. Accordingly, the appeal was allowed, the suit was decreed in part, Ext.A2 was declared null and void, and the relief for recovery of possession was declined. Hence, the defendants have filed separate appeals, whereas the plaintiffs have come up with the Cross Objection.

3. While admitting R.S.A. No.1277 of 2012 on 6.11.2012, this Court framed the following substantial questions of law for consideration:

                  i. Whether the lower appellate court is justified in reversing the decree passed by the trial court by giving much importance to the revenue records when there are sufficient materials to arrive at a conclusion that the temple in dispute and surrounding properties belong to a Namboothiri Illam and that the plaintiffs have made admissions to that effect and also that they have no case that there is another temple under the same name in the locality?

                  ii. Whether the lower appellate court is justified in reversing the trial court decree when Ext.B1, partition deed clearly reveals that the Kaninadu Bhagavathi Temple and surrounding properties are the Brahmaswam of the Komana Mana which admittedly is a Namboothiri Illam?

                  iii. Whether the lower appellate court is correct in granting a declaration that Ext A2 is invalid when the Kaninadu Bhagavathi Temple is being a private temple?

4. While admitting R.S.A. No.1280 of 2012 on 29.10.2012, this Court framed the following substantial questions of law for consideration:

                  i. Whether the lower appellate court is justified in not adverting to the admission in Ext.B2 that the Kaninadu Sree Bhagavathi temple is a temple belonging to the Komana mana?

                  ii. Whether the finding that the plaint schedule temple does not belong to the Komana mana sustainable in the light of the provisions contained in Ext.B1, partition deed executed in the Komana mana, which is the only document available to prove the nature of the temple and which has stood the test of time, there being no justifiable reason to discard the description of the plaint schedule temple as Brahmaswom thanathu temple of the illom (private temple of the illom) in Ext.B1?

                  iii. Whether the lower appellate court is justified in not adverting to material provisions contained in Ext. B1 which are conclusive to hold that the temple in question is private temple of the Komana mana, namely, the setting apart of the substantial properties of the illom for the 'nithya nidanam' and 'adiyanthirams' of these temples and the founder illom retaining control and management of these temples to be exercised continuously by the illom and its descendants from time to time in the manner specified in Ext B1?

                  iv. Whether the lower appellate court is justified in coming to the conclusion that the temple in question does not belong to the Komana mana from the non-mentioning of the survey number of the site of the temple, namely, 508/5 in Ext.B1, partition deed while sub divisions of survey No.508 are specifically referred to in schedules to Ext. B1 allotting properties to different members of the illom, in the light of the fact that all the temples of the illom, five thanathu temples and four urainma temples, are referred to in Ext.B1 only by their names and survey numbers and extent of the site of none of these temple being given in Ext.B1?

                  v. Whether Ext.A11, thandaper account and Ext.A12, basic tax register for the site of the plaint schedule temple, the Kaninadu Sree Bhagavathi temple being in the name of the said temple is susceptible of inference that the said temple does not belong to the Komana mana, the said temple, its site and deity being properties of the Komana mana?

                  vi Whether the lower appellate court acted rightly in finding title on the basis of Exts.A11 and A12 revenue records since it is well settled that revenue records neither create title nor extinguish title?

                  vii. Whether the finding that plaintiffs 2 and 3 have locus standi to file the suit for declaration that alienation of temple property is invalid as worshipers sustainable, since the suit is filed by plaintiffs 2 and 3 not in their capacity as worshipers and this claim being not founded on pleading and as such not entertainable and in any view not available in the case of a private temple?

                  viii. Whether plaintiffs 2 and 3 competent to represent the 1st plaintiff deity and file the suit on its behalf, the temple and deity being private properties of the Komana mana?

                  ix. Has not Ext.A2 been misread and misinterpreted? Can Ext.A2 be characterized as an alienation of temple property and whether a suit for declaration that it is null and void is maintainable?

                  x. Is not Ext.A2 valid and within the competence of the 3rd defendant the temple being a private temple of the Komana mana and the 3rd defendant being the competent authority to manage the temple as per the provisions in Ext.B1 and he having authority to manage through his agent like the Karayogom represented by defendants 1 and 2?

5. Heard Sri. P. Viswanathan, the learned Senior Counsel, assisted by Sri. M.Sriram, the learned counsel for the appellants in R.S.A. No.1277 of 2012, Sri. M. Narendra Kumar, the learned counsel for the appellant in

R.S.A. No.1280 of 2012 and Sri. Dinesh R. Shenoy, the learned counsel appearing for the respondents/Cross Objectors.

6. Sri. P. Viswanathan, the learned Senior Counsel appearing for the appellants, raised the following submissions:

                  a. The first appellate court erred egregiously in granting the declaratory relief sought for in the suit despite finding that 2nd and 3rd plaintiffs have no right to represent the society, especially since there is no evidence produced by them to show that they are the elected office bearers of the society. The moment the plaintiffs 2 and 3 are held to be not the office bearers of the society, necessarily the framework of the suit itself collapses, especially since the 1st plaintiff is a deity and being considered as a perpetual minor, no application under Order 32 Rule 1 of the Code of Civil Procedure has been filed by either of the plaintiffs.

                  b. The claim for recovery of possession based on the assertion that the plaintiffs are the office bearers of the society cannot be accepted. Ext.B7 information received by the defendants under the Right to Information Act clearly discloses that the society, after being registered in the year 1991, has not filed any return nor submitted any list of office bearers and thus has become defunct.

                  c. A society which has become defunct cannot be permitted to prosecute the suit on behalf of a deity. At any rate, by mere production of Exts.A3 and A4 documents by itself will not show that the plaintiffs 2 and 3 are the office bearers of the society.

                  d. Ext.B1 partition deed specifically mentions about the right of management of the Komana Mana over the Kaninad temple. Therefore, the 3rd defendant, being the eldest member of the Komana Mana, was certainly entitled to execute Ext.A2 settlement deed by which the right of management alone is transferred.

                  e. It is incorrect to state that by virtue of the settlement deed, the right title and interest over the plaint schedule property stands transferred in the name of the 1st defendant. The 3rd defendant still retains the authority to recall the entrustment of the administration of the temple if it is found that the temple is being administered improperly.

                  f. The oral testimony of PW1 would clearly show that the administration of the temple is vested with Komana Mana. In fact, PW1 had no case that the management of the temple was with someone else. It is further contended that there is no evidence to prove that there was an entrustment regarding the administration of the temple with the Bharana Samithy as claimed by the plaintiffs 2 and 3.

                  g. It is pointed out that after 3.12.2005, there was no meeting in respect of the society and that at the time of filing of the suit in the year 2009, no evidence was produced to show that the plaintiffs 2 and 3 are the office bearers of the society.

                  h. Lastly, it is pointed out that, for the same relief, O.S. No.136 of 2007 was instituted before the Munsiff Court, Perumbavoor in which an application for amendment was filed. The application was filed on 16.1.2009, on the same date, the present suit was filed. The application for amendment was allowed, the amendment was carried out and, thereafter, on 6.1.2010, the said suit was withdrawn without liberty to prosecute the present suit, and thus the withdrawal of the earlier suit constitutes as a bar to proceed with the present suit.

7. Per contra, Sri. Dinesh R. Shenoy, the learned counsel for the plaintiffs/cross objectors, countered the submissions of the learned Senior Counsel and raised the following submissions:

                  a. The 1st plaintiff temple is a public temple and therefore all the worshipers have got the right to question the maladministration at the hands of the defendants.

                  b. There is no evidence to show that the temple belonged to the Komana Mana, over which the 3rd defendant claims to be the eldest member.

                  c. The plaintiffs have produced Exts.A11 and A12 documents, which show that, as per the revenue records, the plaint schedule property lies in the name of the deity. Ext.B1 partition deed will not confer any title on the members of the Komana Mana over which the 3rd defendant claims to be the eldest member.

                  d. Ext.A2 document is executed through a power of attorney holder, and the written statement in the suit was also filed by him. In fact, the 3rd defendant has not come into the picture to date in order to test the veracity of the document executed by him. Therefore, the plaintiffs have every reason to believe that Ext.A2 document was executed without the consent of the eldest member of the Illam.

                  e. Referring to the additional documents produced along with the cross objection under Order 41 Rule 27 of the Code of Civil Procedure, the learned counsel pointed out that, going by the settlement register, the temple vests with the 1st plaintiff/deity and not with the Illam and therefore Ext.A2 has no efficacy of law.

                  f. As regards the plea that the present suit is hit by Order 2 Rule 2 of the Code of Civil Procedure read with Order 23 Rule 4 of the Code of Civil Procedure, it is pointed out that no issue was framed regarding the bar of the present suit under Order 2 Rule 2 of the Code of Civil Procedure and therefore the appellants cannot raise the said plea for the first time in the second appeal. In support of the said contention, the learned counsel relied on the decision of the Supreme Court in Gurbux Singh v. Bhooralal [1964 KHC 636 : AIR 1964 SC 1810].

                  g. It is further pointed out that O.S. No.136 of 2007 was based on an entirely different cause of action altogether, and there is no identity of the property. O.S. No.136 of 2007 was sought to be withdrawn by filing I.A. No.40 of 2010, and the same was granted as per the order dated 6.1.2010. Therefore, the learned counsel submits that once a permission is granted under Order 23 Rule 1 of the Code of Civil Procedure, it is presumed that the permission is granted to its entirety and not to a part. In support of his contention, the learned counsel relied on the decision of the Madras High Court in N. Iyyaswamy and Another v. B.Padmini and Others [2o20 SCC OnLine Madras 13418].

                  h. Since there was a dispute as regards whether the temple is a public temple or a private temple, and that the appellants assert that it is a private temple, the burden is on the appellants to prove that it is a private temple. Reliance is placed on the decision of the Supreme Court in Jayaraman C.R. and Others v. M. Palaniappan and Others [2009 KHC 4209 :2009 (3) SCC 425].

8. Shri. M.Narendrakumar the learned counsel for the appellant in R.S.A. No.1280 of 2012 supported the arguments of learned Senior Counsel for the appellant in R.S.A. No.1277 of 2012 and reiterated that by virtue of Ext.A2 settlement deed, the right of management of the temple alone is conveyed. It is further pointed out that the appellant/3rd defendant retains the right to recall the entrustment of the management of the temple in case it is found that the defendants 1 and 2 are not administering the temple properly. It is further pointed out that if the status of the plaintiffs 2 and 3 is changed to that of worshippers as concluded by the first appellate court, the character of the suit itself changes and will affect its maintainability. If the plaintiffs 2 and 3 intend to maintain the suit purely in their status as devotees, then the relief sought for declaration and consequential recovery must fail.

9. I have considered the rival submissions raised across the Bar and perused the judgments rendered by the Courts below and the records of the case.

10. By order dated 13.2.2026, this Court has framed an additional substantial question of law, which reads as under :

                  “Whether the present suit is hit by Order 2 Rule 2 as well as Order 23 Rule 4 of the Code of Civil Procedure, 1908?”

11. This Court had given its reasons as to why the aforesaid question of law is framed, especially since the records in this case indicate that earlier suit and the present suit were for the same relief. Further, through Ext.B6 application, an amendment was sought for questioning the validity of Ext.A2 settlement deed and the amendment was allowed and the same was carried out also. Pertinently, the present suit and the application for amendment in the earlier suit were filed on the same day. Surprisingly, the pendency of the earlier suit O.S. No.136 of 2007 is not disclosed in the present suit.

12. That apart, having found that the plaintiffs 2 and 3 had not produced any documents to substantiate their case that they are the office bearers of the society, this Court wanted the respondents/plaintiffs to state before this Court as to whether they intend to proceed with the appeals as the office bearers of the society or as worshipers alone.

13. Today, when the matter was taken up for consideration, the learned counsel for the respondents/cross objectors gave conflicting versions regarding the intention of the plaintiffs to move forward with the case. Initially, the learned counsel for the respondents/plaintiffs-cross objectors submitted that they will be satisfied if they are permitted to proceed with the case as worshipers. However, during the course of his argument, the learned counsel retracted from the above statement and pointed out that what was intended by him is only to give up the right of recovery of possession, but at the same time their entitlement to question Ext.A2 settlement deed has not been given up. In light of the inconsistent stand taken by the learned Counsel for the respondents/plaintiffs, this Court is of the view that plaintiffs 2 and 3 are not certain as to the status in which they intend to question Ext.A2 settlement deed. Therefore, this Court felt that the incongruous stand taken by the plaintiffs 2 and 3 is fatal to the cause projected by them.

14. In the above backdrop, this Court proceeds to consider the respective contentions. First, this Court will consider whether plaintiffs 2 and 3 are officer bearers of the society. At the outset, this Court must notice the fact that apart from a vague statement that the plaintiffs 2 and 3 are the office bearers of the registered society who manages the affairs of the 1st plaintiff temple, no evidence is seen adduced by the plaintiffs to prove the same. Exts.A3 and A4 minute books alone were produced before the trial court to show that a general body was convened during the respective periods for the purpose of electing the office bearers of the society. The trial court found that the minute books alone are not sufficient. This Court does not find any reason to defer from the findings of the trial court. The first appellate court also concurred with the above findings, but then traversed beyond the scope of the appeal and went on to hold that the plaintiffs had got a right as worshipers. The sustainability of the said finding will be dealt with by this Court separately.

15. It is worthwhile to mention that during the course of the argument, the learned counsel for the respondents fairly conceded before this Court that, apart from Exts.A3 and A4 minute books, there is no other evidence to prove that the plaintiffs 2 and 3 are the elected office bearers of the society. But then, according to the learned counsel, there is nothing under law which requires them to maintain a list of office bearers of the society other than the minute books maintained in the normal course of business.

16. This Court is afraid that it is not in a position to subscribe to the contention raised by the learned counsel for the respondents/cross objectors.

17. Admittedly, the Society is governed by the Travancore Cochin Literary, Scientific and Charitable Societies Act, 1955. Section 7 of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 reads as under:

                  7. General meetings and minutes of proceedings of such meetings.—

                  (1) It shall be the duty of the governing body of a society to convene the first general meeting of the society within 18 months from the date of its registration and thereafter once at least in every calendar year and not more than 15 months after the holding of the last proceeding meeting.

                  (2). At the annual general meeting so held, election of members to the governing body shall be made as provided for in the rules and regulations of the society, provided the minimum number of persons in the governing body shall be three.

                  (3). A list of the members of the first governing body of a society shall be filed with the Registrar within fourteen days from the date of registration of the society and thereafter the list of the governing body shall be filed with the Registrar within fourteen days after the date of the annual general meeting.

                  (4). Every society shall cause minutes of all proceedings of general meetings to be entered in books kept for the purpose such minutes shall be signed by the chairman of the meeting at which the proceedings were held.

                  (5). If default is made in holding the annual general meeting, filing the list of governing body or recording the minutes of proceedings of general meetings as laid down in this section, the society and every member of its governing body who is wilfully in default, shall be liable to a fine (of twenty rupees for every day during which the default continues, subject to a maximum of three hundred rupees).

18. Sections 7(2) and 7(3) of the aforesaid Act are specific in nature. A list of the office bearers of the society shall be prepared after every Annual General Body Meeting, and the same shall be forwarded to the Registrar. Though there is no procedure prescribed under the Act by which the Registrar is to give his approval to the list, the requirement of forwarding the list having been included in the Statute, it presupposes that a list of office bearers of the society be drawn annually and forwarded to the Registrar in order to ascertain the status of the present office bearers.

19. Section 15 of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 also mandates such a procedure, which reads as under:

                  15. Society to keep a register of members.—

                  (1) Every society shall have a register of its members wherein the following particulars are entered:-

                  (a) the names and addresses and the occupation, if any, of the members;

                  (b) the date of which each person became a member;

                  (c) the date on which any person ceased to be a member.

                  (2) If default is made in complying with the requirements of this section, the society and every member of the governing body who knowingly and wilfully authorises or permit the default, shall be liable to a fine not exceeding twenty rupees for every day during which the default continues, subject to a maximum of three hundred rupees.

20. Sections 7 and 15, when read in cumulative, lead to an irresistible conclusion that the requirement to furnish the list of office bearers of a society cannot be dispensed with, and it is futile to contend that the Act does not contemplate furnishing such a list. Admittedly, no such list is produced in this case, and hence the concurrent findings of the courts below that the plaintiffs 2 and 3 are not the office bearers of the society do not call for any interference.

21. Once the status of the plaintiffs 2 and 3 has been clearly spelt out, the framework of the suit must necessarily fall. It must be remembered that the first plaintiff is being described as a deity, and the plaintiffs 2 and 3 are seeking themselves to represent the deity. It is trite law that the deity is a perpetual minor. If that be so, either of the plaintiffs 2 and 3 ought to have applied for appointing them as a next friend of the 1st plaintiff deity in an application under Order 32 Rule 1 of the Code of Civil Procedure, 1908.

22. When this infirmity was pointed out by the court, the learned counsel for the respondents submitted that under Order 32 Rule 2 of the Code of Civil Procedure, an application ought to have been filed by the defendants to get back the plaint from the files of the court. In the absence of such an application, according to the learned counsel, there is an implied grant of permission by the trial court. This Court is afraid that it cannot subscribe to the said argument. Though it is possible to hold that the deity could be represented by a worshipper as a next friend, in case the shebait acts against the interest of the idol, in the present case, such a situation does not arise for consideration, especially since the plaintiffs 2 and 3 proceeded on an assumption that they are entitled to represent the deity as a matter of right. The moment it has come out in evidence that the plaintiffs 2 and 3 miserably failed to prove that they are the office bearers of the society, the entire edifice based on which the suit has been framed should fail.

23. Insofar as the question whether the 3rd defendant has any right to execute Ext.A2 settlement deed, one must turn back to Ext.B1 partition deed. In Ext.B1 partition deed, there is a clear indication that the management of the temple is vested with the Illom. When Ext.B1 is read along with the oral testimony of PW1, wherein he had clearly admitted that the management of the temple is vested with the Illom, no further deliberation is required. Hence, as the eldest member of the family, the 3rd defendant was clearly empowered to entrust the management of the temple to the defendants 1 and 2.

24. Despite this, the learned counsel for the respondents asserted before this Court that, going by Exts.A11 and A12 revenue records, it is evident that the plaint schedule property stands in the name of the deity. Placing further reliance on the settlement records produced along with Cross Objection as additional documents, the learned counsel submitted that reference to Ext.B1 by the courts below is improper. On an anxious consideration of the submission, this Court finds that the revenue records will not confer any title and therefore, reliance placed on revenue records is misplaced. Moreover, this Court finds no reason to accept the additional evidence before this Court.

25. Having concluded that the management of the temple does not vest with the plaintiffs 2 and 3, the larger question before this Court is whether the plaintiffs 2 and 3 could question the said entrustment under Ext.A2. The argument raised on behalf of the plaintiffs is that because they are the worshipers of the temple, they are entitled to maintain a suit. No doubt, a worshiper of the temple is entitled to question the maladministration of the temple. But then, it must be remembered that the framework of the present suit is such that there is no averment that the suit is sought to be sustained on the ground that they are the worshippers of the temple. Midway through the consideration of the suit, when it is found out that the plaintiffs 2 and 3 have no right to represent the deity, they cannot be permitted to shift their stand and contend that the suit be maintained as though they are the worshippers.

26. Equally so, this Court cannot accept the argument of the learned counsel for the respondents/plaintiffs that the temple in question is a public temple. In fact the question as to whether the temple is a public temple or not is not an issue to be called for in the present suit. Merely because the public is allowed to worship in a temple is not a criteria to hold that the temple is a public temple. At any rate, no evidence is seen adduced in this regard, and therefore, this Court is not persuaded to go into the said question.

27. Moreover, as against Ext.B1, there is no contra evidence adduced by the plaintiffs. But, having failed throughout, a fervent attempt is made at the second appellate stage through an application under Order 41 Rule 27 of the Code of Civil Procedure to produce additional documents. Having found that the additional documents cannot be accepted, it is inevitable for this Court to find that there is no contra evidence adduced by the plaintiffs.

28. Next, it is to be considered whether Ext.A2 conveys the right title and interest over the property. Read as may, this Court could not find any clause under Ext.A2 which confers the right title and interest over the plaint schedule property in favour of the defendants 1 and 2. The defendants are in unison in their submissions before this Court that the 3rd defendant had not intended to convey any title over the plaint schedule property in favour of the defendants 1 and 2.

29. Moreover, a reading of Ext.A2 shows that a right to recall the management is reserved with the 3rd defendant. Therefore, this Court is of the considered view that if, in any case, the 3rd defendant finds that there is mismanagement, he is entitled to recall Ext.A2 settlement deed. In such circumstances, the first appellate court went beyond its jurisdiction in declaring Ext.A2 as null and void.

30. An incidental question that requires to be addressed by this Court is whether the present suit as such is maintainable. O.S. No.136 of 2007 was instituted by the plaintiffs for the very same relief. The pleadings in the earlier suit are available on record as Exts.B5 and Ext.B6. However, both sides were not sure about the ultimate outcome of the suit. In view of the above, this Court felt it expedient to call for the records relating to O.S. No.136 of 2007 in order to ascertain what exactly happened to the suit. From the records forwarded by the Munsiff Court, Perumbavoor, it is seen that the suit was permitted to be withdrawn by Judgment dated 6-1-2010.

31. The plaintiffs had sought liberty to proceed with the present suit while seeking permission to withdraw the suit. It appears from the Judgment in O.S. No.136 of 2007 that though permission to withdraw the suit with liberty was sought for, the same appears not to have been granted. On request of the learned counsel for the respondents, copies of the petition to withdraw the suit, the judgment rendered in O.S. No.136 of 2007 were directed to be served by order dated 13-2-2026. Counsels for both sides have received the copies.

32. Extensive arguments were addressed by learned counsel for the respondents/plaintiffs on the applicability of the provisions of Order 2 Rule 2 read with Order 23 Rule 4 of the Code of Civil Procedure. Ext.B5 is the plaint in O.S. No.136 of 2007, and Ext.B6 is the copy of the amendment petition filed in the same. When the cause of action for filing the earlier suit as well as the present suit is closely scrutinised, it is evidently clear that the cause of action is one and the same.

33. In fact, the most intriguing fact is that the amendment was sought on 16.1.2009, the same date on which the present suit was instituted. The amendment was allowed and thereafter carried out. After the amendment was carried out, the relief sought for in O.S. No.136 of 2007 and O.S. No.25 of 2009 are one and the same. At this point, the plaintiffs filed I.A. No.40 of 2010 in O.S. No.136 of 2007 for withdrawing O.S. No.136 of 2007 with liberty to proceed with O.S. No.25 of 2009. A reading of Judgment dated 6.1.2010, in O.S. No.136 of 2007, shows that I.A. No.40 of 2010 stands allowed and the suit stands dismissed as withdrawn. However, it is seen that no liberty was granted to the plaintiffs.

34. Faced with the situation, the learned counsel for the respondents submitted that the court has no option to permit a part withdrawal. Either the court must permit withdrawal as a whole or reject the same. Once the application for withdrawing the suit is allowed, the liberty is deemed to have been granted for the purpose of filing a fresh suit. This Court finds force in the submission of the learned counsel for the respondents. Therefore, the additional substantial question framed by this Court is answered in favour of the respondents.

35. However, that by itself will not lead to the conclusion that the plaintiffs are entitled to succeed. Only since the defendants raised a question regarding the maintainability of the suit, this Court thought it fit to address the suit.

36. Coming back to findings rendered by the first appellate court, it is surprising to note that notwithstanding the fact that the plaintiffs failed to prove that they are the office bearers of the society and that there is no evidence to show that beyond 17.12.2005, there was no election to the office bearers of the society, still the appellate court found that, they are entitled to succeed based on the claim that they are the worshippers of the temple cannot be sustained under any circumstances.

37. A perusal of the grounds mentioned in the memorandum of appeal before the first appellate court shows that no such plea was taken. Therefore, on what basis the first appellate court formed an opinion that the plaintiffs 2 and 3 can institute the suit based on the status as worshippers remains to be seen.

38. Moreover, assuming that the claim of plaintiffs 2 and 3 as worshippers could be sustained, then the reliefs sought for, for a declaration and recovery of possession, must necessarily fail. Though the learned counsel for the respondents/plaintiffs conceded that they do not want a recovery of possession, that by itself will not enable them to sustain the plea of declaratory relief. The relief No.A claimed in the plaint reads as under:

                

                 

39. A perusal of the above relief shows that they have sought for a declaration that document No.461/1 of 2006 of SRO, Puthencruz, is not binding upon plaintiffs 2 and 3. When this relief is juxtaposed with the status of plaintiffs 2 and 3 as claimed in the plaint, it is inevitable for this Court to hold that the relief can only be granted qua the status of plaintiffs 2 and 3 as the office bearers of the society.

40. The moment the plaintiffs 2 and 3 downgrade themselves to that of worshippers, the challenge to Ext.A2 must fail at this very inception. It is pertinent to note that the right of a worshiper to institute a suit for the administration of a temple is no longer res integra.

41. In M. Siddiq (Dead) through legal representatives (Ram Janmabhumi temple case) vs. Mahant Suresh Das and Others [2020(1) SCC (1)], the Supreme Court considered the rights of a worshipper to maintain a suit questioning the administration of the temple.

                  Paragraph Nos.457 and 455 of the judgment are extracted herein as under:

                  “455. A suit by a worshipper in their personal capacity cannot however canvass the range of threats the idol may face at the hands of negligent shebait and it may be necessary for the court to permit the next friend to sue on behalf of the idol itself to adequately protect the interests of the idol. For example, where a shebait fails to file a suit for possession on behalf of a deity, a suit by a worshipper in their personal capacity is inadequate. Rather, what is required is a suit by a next friend on behalf of the idol for the recovery of possession of the property. It is true that possession will not be delivered to the next friend. However, the court can craft any number of reliefs, including the framing of a scheme upon an application by the Advocate General or two persons under Section 92 of the Civil Procedure Code, 1908, to ensure that the property is returned to the idol. Where the inaction or mala fide action of the shebait has already been established, such a scheme may be the appropriate remedy, however this will necessarily depend on the facts and circumstances of every case.

                  xxx

                  457. This, however, brings us to the second question whether allowing a next friend to sue on behalf of the idol puts the idol at risk. The idol and its properties must be protected against the threat of a wayward "next friend". Where the shebait acts in a mala fide manner, any person claiming to be a "next friend" may sue. Such a person may in truth have intentions hostile to the deity and sue under false provenance. Even a well- intentioned worshipper may sue as a next friend and purely due to financial constraints or negligence lose the suit and adversely bind the deity. A solution offered by Pal, J. in Tarit Bhusan Rai vs. Sri Sri Iswar Sridhar Salagram Shila Thakur [1941 SCC OnLine Cal 107 : AIR 1942 Cal 99] and urged by Dr Dhavan in the present proceedings, is that only court appointed next friends may sue on behalf of the idol. No doubt this would satisfy the court that the next friend is bonafide and can satisfactorily represent the deity.

42. At any rate, in the nature of averments in the present suit, there is nothing to indicate that the defendants 1 and 2 are not administering the temple properly. The first appellate court had unfortunately failed to notice the crucial aspect as regards the sustainability of the prayer in the suit when the status of the plaintiffs 2 and 3 was changed. This essential difference, having gone unnoticed by the first appellate court, is susceptible for interference under Section 100 of the Code of Civil Procedure 1908.

43. Resultantly, this Court is of the view that the substantial questions of law framed by this Court are required to be answered in favour of the appellants as follows:

                  RSA No 1277 of 2012.

                  1. The first appellate court was not justified in reversing the decree passed by the trial court by placing reliance on the revenue records when there were enough materials to conclude that the management of the temple was vested with the Namboothiri Illam.

                  2. The first appellate court was not justified in reversing the trial court decree when Ext.B1 partition deed reveals that the Kaninadu Bhagavathi temple and surrounding properties are being managed by Komana Mana, admittedly a Namboothiri Illam.

                  3. The first appellate court went wrong in granting a declaration that Ext.A2 is invalid when the temple is a private temple.

RSA 1280 of 2012.

                  1. When there is an admission in Ext.B2 that the Kaninadu Sree Bhagavathi temple is a temple belonging to the Komana mana, the finding of the first appellate court that the plaint schedule temple does not belong to the Komana mana is not sustainable.

                  2. When there is a clear indication in Ext.B1 which is conclusive to hold that the temple in question is a private temple of the Komana mana, namely, the setting apart of the substantial properties of the illom for the 'nithya nidanam' and 'adiyanthirams' of these temples and the founder illom retaining control and management of these temples to be exercised continuously by the illom and its descendants from time to time in the manner specified in Ext.B1, finding to the contrary is unsustainable.

                  3. Ext.A11, thandaper account and Ext.A12, basic tax register for the site of the plaint schedule temple, cannot confer title of the plaint schedule property on the deity.

                  4. The plaintiffs 2 and 3 have locus standi to file the suit for declaration that alienation of temple property is invalid as worshipers, since the suit is filed by plaintiffs 2 and 3 not in their capacity as worshipers and this claim being not founded on pleading and as such not entertainable and also

                  5. in any view not available in the case of a private temple.

                  6. The plaintiffs 2 and 3 are not competent to represent the 1st plaintiff deity and file the suit on its behalf, the temple and deity being private properties of the Komana mana, and in the absence of permission being sought under Order 32 Rule 1 of CPC.

                  7. Ext.A2 is valid and within the competence of the 3rd defendant, the temple being a private temple of the Komana mana and the 3rd defendant being the competent authority to manage the temple as per the provisions in Ext.B1.

44. Coming to the Cross Objection, it must be noted that the Cross Objection is solely based on the refusal of the first appellate court to grant

recovery of possession. Since the learned counsel for the Cross Objectors has conceded before this Court that the respondents/cross objectors do not want the relief for recovery of possession to be pressed, this Court finds that there is no requirement to deal with the respective contentions in the Cross Objection.

45. Resultantly, finding that no substantial question of law arises for consideration in the Cross Objection, the Cross Objection is dismissed.

46. In fine, on the basis of the discussions above, and also the answers given to the questions of law framed in the appeals, this Court is of the view that the judgment of the Sub Court, Perumbavoor, in A.S. No.23 of 2011 cannot be sustained. Accordingly, these appeals are allowed by reversing the judgment and decree in A.S. No.23 of 2011 on the files of the Sub Court, Perumbavoor and restoring the judgment and decree in O.S. No.25 of 2009 to the files of the Munsiff Court, Perumbavoor. The appellants are entitled to costs throughout.

                  Ordered accordingly.