Velayudam Thankayyan vs Rev. G.W.T. Trowell

M. Anantanarayanan, O.C.J.

These appeals are intimately related to each other, and spring from the subject matter of the same controversy and the same litigation. Hence,

we are disposing of them by means of a common judgment. But it will be most convenient to deal first with L.P.A. 13 of 1963, which alone can be

said to present any problems in adjudication. L.P.A. 12 of 1963, as we shall presently show when dealing with it, is of a very restricted scope, and

can be effectively disposed of in a few lines.

(2) As far as L.P.A. 13 of 1963 is concerned, the second appeal from which it now arises, was instituted before Ramakrishnan J. by the seven

plaintiffs, the respondent being James Arthur Edwards (defendant-1). It is essential to turn to the facts of the litigation from which this second

appeal ultimately emerged, which was O.S. 121 of 1950 before the learned District Munsif, Kuzhithurai. The nine plaintiffs who brought forward

that action of whom the first plaintiff was the attorney of the L.M.S. Corporation of the London Missionary Society, advanced the case that, in

1946, the Travancore Church Council accepted a scheme of union which resulted in the formation of the Church of South India. The validity of

that Union, in the context of the congregational practices of the constituent churches of the Travancore Church Council and the tenets of the newly

formed church of South India, has been the subject matter of controversy in this litigation, and related litigations, disposed of by common

judgments at very considerable length; but, for the restricted purposes of this appeal, it is quite unnecessary to proceed into this controversy, which

may be not improperly termed as partaking of several characteristics of a theological dispute, although not without its legal aspects also.

(3) The action that now concerns us related to the Church of Martandan, and was preceded by certain proceedings under S. 143 of the

Travancore Cochin Criminal P.C. in the court of the local first class Magistrate. There was a magisterial enquiry, and then, a revision to the High

Court. The ultimate result was that the church property, which is the main subject of dispute, was kept under a pending attachment, and the parties

were referred to a civil court with regard to the right to possession. The plaintiffs claimed that the first defendant (James Arthur Edwards, here

appellant), had absolutely no right to possession of the Church property, that he was never in such possession, and that he should now be directed

to surrender possession, and not to disturb or interfere with the possession of the plaintiffs and their conduct of the rituals and ceremonies of the

Church, in accordance with the Church Union, in the Church at Marthandam. The first defendant (appellant) put forward pleas inter alia that the

L.M.S. Corporation was merely a Trustee for the L.M.S. Church, that the true beneficiaries, as far as the Marthandam Church was concerned,

were the members of the London Mission Congregation in the Township, that the first defendant was the elected Secretary of the Church

Committee, and that the Travancore Church Council was incompetent to liquidate the Congregation, so to speak, and to bring about the Union

that we have earlier referred to, thereby acquiescing in practices and tenets that are alien to the congregational worship. The suit was hence liable

to be dismissed with costs.

(4) We find that six issues were framed in the trial court, and that additional issues No.7 to 15, were subsequently framed. Nevertheless, there is

no single issue that can be said to specifically focuss the controversy upon the aspect that seems us to be adequate to dispose of this appeal. For

instance, arguments have been addressed before us with regard to the status of the appellant, James Arthur Edwards, either as Secretary of the

Church Committee, or as representing the Church Committee. There is no issue on that point. The Church Committee is not a party to the suit,

and, as we understand the case of the plaintiffs, they deny that this defendant can legitimately term himself the Secretary of any such Committee, or

can represent the Committee, or even that there is any such Committee at all in existence. There is no plea that the suit is bad for non-joinder of the

Church Committee; at any rate, there is certainly no specific issue on that point. It is indisputable that, whatever the result of the present suit might

be, it would not be res judicata as against bodies not brought into the array of parties in this suit, and strangers to it. The other aspect that seems to

us to be vital is the factum of the possession of Church property on the date of suit. Upon that, there is no specific issue, though there is an issue of

that kind with regard to the Magisterial enquiry. Additional issue No.7 is merely to the effect whether the plaintiffs have any right and possession

over the plaint-property and additional issues Nos.14 and 15 relate to the right of the plaintiffs to compel the defendants to surrender possession,

and to the ownership of the L.M.S. Corporation.

(5) This, briefly outlined, is the background of the litigation. The subsequent facts are not in dispute. The suit was decreed in terms of the plain by

the Principal District Munsif, and the first defendant appealed to the learned District Judge, Kanyakumari at Nagarcoil. The learned District Judge

disposed of this appeal by means of a judgment in A.S. 12 of 1960. That is a very brief judgment, in which a great deal of the area of controversy

in excluded from consideration, for the simple reason that the learned Judge dealt with elaborately in the related judgments in A.S. 144 and 150 of

1959, before him; the judgments in those appeals were directed by him to be appended to the judgment here. Ramakrishnan J. Again disposed of

this second appeal along with the other appeals, by means of a very elaborate judgment, in which the validity of the Union that we earlier referred

to, has been the subject of discussion. Ultimately, the learned Judge, for reasons stated by him, reversed the judgment of the first appellate court

and restored the judgment and decree of the trial court, as far as the present action is concerned. Hence, the first defendant has instituted this

Letters Patent Appeal.

(6) There is a ground of preliminary nature raised by learned counsel for the respondents with regard to the maintainability of this appeal. It is a

point of some interest and we might deal with it before disposing of the appeal itself. It can be tersely stated in the following form. At the time when

this litigation or lis commenced, the highest court of competent jurisdiction was the Travancore Cochin High Court, and an appeal lay to that court

under the law governing that territory, from the judgment and decree of the learned District Judge in first appeal. Subsequently, these areas of

Kanyakumari were merged in the Madras State by virtue of the States Reorganisation Act 37 of 1956. Under S. 119 of that Act, there was a

saving provision with regard to any law in force in the merged territories, immediately before the appointed day. If the effect of this is to invest the

parties to this action with the rights which had accrued to them prior to the date of merger, it is contended for the plaintiffs that not merely would

they have a right of second appeal to the High Court, but also that the procedure attaching to that right would have to be the procedure which was

in vogue in the Travancore Cochin High Court. The Travancore-Cochin High Court was not governed by any Letters Patent, similar to the Letters

Patent that governs the organisation and procedure of the Madras High Court. There was only a single right of appeal to the High Court, and there

was no further appeal from the judgment and decree in the second appeal to any Division Bench.

(7) Reliance is placed on the decision of the Supreme Court in Garikapatti Veeraya Vs. N. Subbiah Choudhury, for the proposition that a right of

appeal is a substantive or vested right, and that, if it was available to a party at the time when the lis commenced, it would not be affected by any

subsequent change in the law, which had the effect of taking away the right. Reliance is also placed on the decision of a single Judge of the

Rajasthan High Court in Jas Karan Vs. Bhanwarlal and Another, , for the same proposition. Further, that case purports in follow the dicta in

Garikapatti Veeraya Vs. N. Subbiah Choudhury, . The legal pursuit of a remedy and the appeal and second appeal are connected by an intrinsic

unity, and must be regarded as one legal proceeding. The very institution of the suit carries with it the implication that all rights of appeal then in

force are preserved to the parties, till the rest of the career of the suit. The argument is that, equally, any right flowing from the finality of the

decision at a particular stage must be preserved to the party to whom it accrues. Under the law as it stood at the time of the commencement of the

litigation, if the plaintiffs succeeded in the appeal before the High Court, they were entitled to the preservation of the finality of that right, without

any challenge to the decree by way of a further appeal to a Division Bench of the same High Court. On this logic, it is contended, the present

Letters Patent Appeal to us will be incompetent.

(8) A very similar situation arose in Andhra Pradesh and was dealt with by a Division Bench of that court in In re Sridhar Rao, AIR 1958 Andh

Pra 60. That also related to litigation from certain territory in Telengana, originally governed by the procedures of the defunct Hyderabad High

Court. The proceeding was statutorily transferred to the Andhra Pradesh High Court, and an argument of a very similar character was sought to be

raised that there could be no Letters Patent Appeal against the judgment of a single Judge of the High Court of Andhra Pradesh, disposing of a

second appeal arising out of the area. Subba Rao C.J. (as he then was) referred to the Full Bench decision of this Court in In re Vasudevasamiar,

ILR Mad 361 and also to Garikapatti Veeraya Vs. N. Subbiah Choudhury, . The learned Chief Justice then pointed out that there was an essential

distinction between a substantive right of appeal and the procedure prescribed for disposing of that appeal. Whether the appeal was disposed of

by a single Judge or by a Bench of two Judges it was a disposal of the High Court itself. The internal distribution and allocation of work between

and among the Judges of the High Court was a matter of procedure, not affecting the vested right of a party.

(9) We are of the view that the preliminary objection can be clearly disposed of within the ratio of Garikapatti Veeraya Vs. N. Subbiah

Choudhury, alone, without any further complication or difficulty. We certainly agree that, even apart from S. 119 to which reference has been

made, upon well-settled principles of law, the rights which would accrue to the plaintiffs would be the rights governing the lis at its commencement,

and that such rights would be available to both parties for the entire career of the litigation, regarded as an intrinsic unity, unaffected by any

enactment which supervenes. But that is subject to the specific exception that any such right might conceivably be affected either by a retrospective

provision in the statute itself, or by any law which has that consequence, by necessary intendment.

This principle has been recognised in Craies on Statute law, 6th Edn., page 398 following the observations of Evershed M.R. in Hutchinson v.

Jauncey, 1950 1 KB 574 . The principle has been put in the form that ""if the necessary intendment of the Act is to affect pending causes of action,

then, the court will give effect to the intention of the Legislature, even though there is no express reference to pending actions."" Certainly, the

necessary intendment of the States Reorganisation Act is that the Madras High Court should have jurisdiction to dispose of that second appeal,

which would have been file in the Travancore Cochin High Court, but for the merger. It has to be noted that, here, there is no question of a vested

right of appeal being taken away; on the contrary, the right is affirmed, but, in the new High Court which has competent jurisdiction. Such an

appeal, as pointed out in the Andhra Pradesh decision cited, will be governed by the rules relating to appeals, which are a matter of internal

organisation of the High Court, by Letters Patent. Those rules provide for a disposal of the appeal by a single Judge, and a further appeal

therefrom to a Divisional Bench of the same High Court, as a question of internal procedure of the High Court. No vested right of appeal is thereby

taken away; nor can it be said that the finality of any decision is affected for the Letters Patent appeal is an extension of the same process of the

disposal of the second appeal by a single Judge of the High Court of Madras. We are hence of the view that this preliminary objection has no

force.

(10) Proceeding now to the merits, the main argument of learned counsel for the appellant, Sri K.S. Sankara Aiyar, is the simple one that this

court, in second appeal, would have no jurisdiction to interfere with a finding of fact, even if that finding be erroneous. Hence, the learned Judge

(Ramakrishnan J.) erred in disposing of the second appeal, by reversing the decree of the first appellate court and restoring the decree of the trial

court, when the first appellate court has found, as a question of fact, that the plaintiffs were not entitled to possession of the Marthandam church.

There are several authorities of the Supreme Court, which need not be cited here, since the proposition is not in dispute, laying it down in

unambiguous terms, that this court would have no jurisdiction to interfere in second appeal upon what is virtually a question of fact, even if the

finding be erroneous. The only jurisdiction, this court would have, under those circumstances, is to set aside the decree and to remit the first appeal

for further hearing and disposal, in case this court is inclined to view the disposal under the appeal as inadequate or imperfect.

(11) We do not think it is necessary to proceed into this aspect at all, for, it appears to us that the disposal of the second appeal by the learned

Judge (Ramakrishnan J.) could be justified on a restricted aspect of the case, without at all canvassing the validity of the Union, or the possession

of the L.M.S. Corporation vis-a-vis the L.M. Congregation at Marthandam, if there be one, after the Union had come into existence. The first

appellate court, as far as we are able to gather from the judgment, did not at all proceed into the factum of possession of the Church property on

the date of suit. For this purpose, we need not refer to the prior criminal proceedings under S. 143 Crl. P.C. and that appears to us to be of very

little relevance or significance. There are two questions which alone arise for consideration, on this restricted aspect, and which are quite adequate

to dispose of this appeal. The first is: who was the party in actual and lawful possession of the Church property on the date of suit? The second is:

Is the defendant (appellant) claiming any right to possession or any other right whatever as a private individual, and, at the highest for him, a single

member of the alleged congregation of Marthandam?

The second question is equally important for the simple reason that the plaintiffs do not accept that the defendant (appellant) is Secretary of any

Church Committee or that he represents such Committee, or even that there is such a Committee or a local congregation, which is opposing, or

has opposed, the Union. According to the plaintiffs, this is simply a case of a party in a minority of one, attempting obstructionist tactics. As we

pointed out earlier, the Church Committee is not a party if there exists such a Committee, and it will not be bound by this decision, which will not

be respondent judicata. Either the Congregation of Marthandam outside the L.M.S. Corporation, or the Church Committee, will be perfectly at

liberty to pursue all remedies at law, as advised, unaffected by this decision. It is obvious that, to the extent to which the appellant is a party, as a

single private individual and member of the Congregation, he can claim no rights, and cannot even set up jus tertii, if the truth is that the Church was

in the possession of the plaintiffs on the date of suit. This is the restricted aspect on which the appeal can be very easily disposed of.

(12) On that aspect, we find that there are explicit findings of the trial court in favour of the plaintiffs, which are unambiguous. Even if it be true that

the learned District Judge has not referred to them, and that the learned Judge here (Ramakrishnan J.) has not disposed of the second appeal on

that basis, we do not see why it is necessary to remit the first appeal back for disposal, or call for any further finding, since the existing findings of

fact by the trial Court are explicit, and have not been dissented from by any of the superior courts. Under S. 103 C.P.C., if we are of the view that

the evidence on record is sufficient, we may certainly determine this issue of fact necessary for the disposal of the appeal. We find that, both in

paragraphs 9 and 10 of the trial court''s judgment, there are explicit findings that the Church building was in the legal possession of the plaintiffs

(L.M.S. Corporation) on the date of suit, and that the first defendant, as a private individual, had no shadow of possession in the property. In that

view, the decree of the trial court was rightly affirmed, and that decree does not affect the rights of the entire congregation dissenting from the

Union, if there be such a congregation, or any Church Committee, independent of the L.M.S. Corporation, if it exists. For these reasons, we have,

in exercise of our powers under S. 103 C.P.C. examined the evidence for ourselves, and we are satisfied that it supports the findings of the trial

court embodied in paragraphs 9 and 10 of its judgment as to actual possession of the date of commencement of the litigation. On this finding alone,

the Letters Patent Appeal by this single private individual (James Arthur Edwards) will have to fail. It is accordingly dismissed.

(13) L.P.A. 12 of 1963: As we observed earlier, this can be disposed of within a very brief compass. In this suit, which was for declaration of title

and possession, the sole defendant (appellant) who is an alleged lessee with regard to a very small extent, put forward, in defence, the right of his

lessor and his derivative right under Ex. A-1, dated 6-1-1948, being an unstamped document of lease, said to have been executed by the

defendant in favour of L.M. Church, Arumana. We have examined this document, and we find that the period has expired long ago, and that, at

the highest, the defendant (appellant) can only claim to be a lessee holding over, after the determination of the tenancy. The lessor is not a party to

these proceedings and, obviously, will not be bound by the decree herein. We have examined the evidence, and we are unable to see any

justification for differing from the learned Judge (Ramakrishnan J.) as to the disposal of this action on the merits. Actually, the trial court held that

the defendant had not proved his title as lessee and possession under Ex. 1; in that case, he was certainly liable to be evicted as a trespasser. But

there is an undertaking submitted before us during the course of arguments, which we record here, by learned counsel for the plaintiff, on behalf of

the London Mission Society Corporation, that, if the defendant (appellant) is willing to attorn in writing to the plaintiff on the same terms, he will not

be evicted from the plain schedule property, and may continue in possession as a recognised tenant. In the light of this undertaking, we dismiss the

appeal, but with the modification that the decree for possession will be enforceable only if the defendant (appellant) does not execute a document,

attorning to the L.M.S. Corporation on the same terms within 3 months from this date; if he attorns, the new tenancy will be recognised as valid,

and the decree will not be enforceable as between the parties. The two appeals are disposed of accordingly. The parties will bear their own costs

here.

H/D.H.Z.

(14) Appeals dismissed.