The U.P. Reorganisation Act, 2000 = High court held that the appellants are not employees of the State of Uttarakhand. The High Court held that the appellants, who were initially appointed by the State of Uttar Pradesh shall remain employees 2 of that State. = Apex court set aside the same = The Central Government, by its letter dated 15 September 2004, permitted the transfer of employees on the basis of the mutual consent of both the States. The State of U.P. gave options to existing employees appointed before 9 November 2000 for transfer of their services to the State of Uttarakhand. However, despite those efforts, a number of vacancies continued in the newly formed State of Uttarakhand. Hence, various employees who were already employed with the State of U.P. prior to the appointed day were provided with a choice of permanent transfer of service to the State of Uttarakhand. In the meantime, in the case of persons such as the appellants where recruitments were completed but appointment letters were not issued the appointment letters indicated that their services may be allotted either to the State of Uttar Pradesh or the State of Uttarakhand after the appointed day. The services of the appellants were transferred and absorbed by the State of Uttarakhand with the mutual consent of both the states. Since then the appellants have been continuing as employees of the State of Uttarakhand. There is no infirmity in the procedure adopted by both the states in the transfer of employees, on the basis of mutual consent. This was clearly contemplated by the letter dated 15 September 2014 of the Government of India in the Ministry of Personnel, Public Grievances and Pensions. Hence, we are unable to agree with the view of High Court.

1
REPORTABLE
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS 8336-8337 OF 2011
KRISHAN KUMAR MADAN AND ORS. ..... APPELLANTS
Versus
ASHOK KUMAR AND ORS ..... RESPONDENTS
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J.
1 Applications for impleadment are allowed.
2 On 17 November 2011, the Division Bench of the High Court allowed the
Writ Petition filed by respondents 1 to 5 and held that the appellants are not
employees of the State of Uttarakhand. The High Court held that the appellants,
who were initially appointed by the State of Uttar Pradesh shall remain employees
2
of that State. The review petition preferred by the appellants was also dismissed
by the High Court by its order dated 23 March 2011. These appeals arise out of
the judgment and order of the Uttarakhand High Court in the Writ Petition and in
review.
3 On 28 March 1999, the U.P. Public Service Commission issued an
advertisement, inviting applications for 170 vacancies in the post of Personal
Assistant in the U.P. Secretariat. The results of the selection process were
published in the newspapers on 3 March 2000. The appellants were selected. The
U.P. Public Service Commission directed the appellants to furnish certified copies
of certain documents. The selection process was challenged before the High Court
of Allahabad and was stayed. Meanwhile, the erstwhile State of Uttar Pradesh was
reorganized into the State of Uttar Pradesh and the State of Uttaranchal (now
Uttarakhand) under the Uttar Pradesh Reorganization Act, 2000, which came into
force on 9 November 2000. Following the dismissal of the Writ Petition before the
Allahabad High Court, the appellants were appointed as Personal Assistants on
29 January 2001 in the U.P. Secretariat at Lucknow.
4 The State of U.P. provided options to its employees, including the appellants
on whether they desired to serve in the State of UP or the reorganised state of
Uttarakhand. The appellants exercised the option to serve the State of Uttarakhand
3
and expressed their willingness for appointment in the Uttarakhand State
Secretariat. The State of U.P. issued orders on 22 May 2001 and 28 July 2001
listing out employees who were approved for appointment in the Uttarakhand State
Secretariat by the Governor of the State of Uttar Pradesh. The appellants joined
the Uttarakhand Secretariat on 23 May 2001 and 1 August 2001.
5 As the newly formed State of Uttarakhand was facing a scarcity of
employees to run the administration, the Government of Uttarakhand issued two
orders dated 28 November 2001 and 7 January 2002 transferring employees
working in various departments to the state secretariat. Respondent Nos. 1 to 5
who were working in other departments joined the Uttarakhand Secretariat as
Stenographers. On 28 September 2004, the services of these Respondents were
confirmed in the cadre of Personal Assistant/Private Secretary by Government of
Uttarakhand. The appellants, pursuant to an order dated 22 November 2004
issued by Uttarakhand government, made a representation for transfer of their
services to the State of Uttarakhand upon a direction of the Central Government
dated 15 September 2004 permitting the transfer of employees on the basis of
mutual consent of the reorganized states. The consent of the State of Uttar
Pradesh was received by a letter dated 22 November 2005 written by Chief
Secretary of the State of U.P. for transfer of the appellants to the State of
Uttarakhand.
4
6 In the meantime, a challenge was made to the seniority list in the cadre of
the appellants posted to the Uttarakhand secretariat by Respondents 1 to 5, in Writ
Petition no 1313 of 2005 filed before the Uttarakhand High Court. The challenge
by Respondent 1 to 5 was only to the seniority list but not to the letter issued by
the Central Government on 15 September 2004 permitting the transfer of
employees with the consent of the reorganized state. The consent of the State of
Uttar Pradesh granted by its letter dated 22 November 2005 relieving the
appellants for transfer to the State of Uttarakhand was not subjected to challenge
in the proceedings before the High Court.
7 The final allocation list published by the Central Government on 7 August
2009 excluded the appellants for transfer of services to the State of Uttarakhand
as they were appointed after the cut-off date. The appellants preferred a
representation to the Central Government requesting allocation of their services to
the State of Uttarakhand. In response to the representation, a letter dated 3
September 2009 was communicated to the appellants denying them allocation to
the State of Uttarakhand as they were appointed after 9 November 2000. The letter
stated that while they are not eligible for allocation under the U.P. Reorganisation
Act, 2000 and neither the State Advisory Committee nor the Central Government
has anything to do with the appellants, the State Governments of U.P. and
Uttarakhand may take mutual action for resolving the issue.
5
8 The High Court in its judgment dated 17 February 2011 observed that the
appellants cannot be termed as employees of the State of Uttarakhand as they
were appointed by the State of U.P. Therefore, in the view of the High Court, they
shall continue to remain employees of the State of Uttar Pradesh. The review
petition filed by the appellants was dismissed by the High Court on 23 March 2011
by reiterating the position earlier taken by High Court in its judgment dated 17
February 2011. The High Court has held that the appellants shall continue to
remain employees of the State of U.P.
9 Aggrieved by the decision of the High Court, the appellants approached this
Court under Article 136 of the Constitution. This Court, by its order dated 25 April
2011 granted status quo with regard to the present posting of the appellants. Leave
was granted on 26 September 2011.
10 During the course of the hearing, learned counsel for appellants has drawn
our attention to a letter dated 13 September 2000 issued by the Union Ministry of
Personnel, Public Grievances & Pensions. The letter deals with the subject of
“Reorganisation of States-Allocation of personnel” and contains guidelines for
allocating personnel belonging to services (other than All India Services) to the
State of Uttar Pradesh. Para (5)(c) of the guidelines is relevant and is reproduced
below:
6
“(5)(c) All recruitments against vacancies in the interim i.e. till
the issue of the final allocation orders, may be kept in
abeyance. Wherever panels have been drawn but not
published, they may be kept in abeyance till reorganization of
States is given effect to. Wherever panels have been recently
published, selected candidates may be notified that their
services in the existing State of Uttar Pradesh may not be
required beyond the "Appointed Day" and that they are liable
to serve the Successor State of Uttaranchal after
Reorganization, as the case may be."
The above guidelines were issued by the Central Government prior to the
reorganization of the State of Uttar Pradesh for allocation of personnel belonging to
the state service to the newly formed state of Uttarakhand. Paragraph (5)(c) of the
guidelines speaks of different eventualities. Recruitments against vacancies until
the issuance of final selection orders were to be kept in abeyance. Similarly, where
panels were drawn but had not been published, they were to be kept in abeyance
until the reorganization of states was given effect to. Moreover, in cases where
panels had been recently published, the selected candidates were to be notified that
they may not be required beyond the appointed day in the State of Uttar Pradesh
and would be liable to serve the successor state of Uttaranchal.
11 It has been submitted by the learned counsel for the appellants that the
results of the recruitment process in which the appellants participated and were
selected were published prior to the issuance of the guidelines and therefore their
recruitment is squarely covered by aforesaid guidelines. Hence, according to the
7
appellants, the option provided to them and their subsequent transfer to the State
of Uttarakhand is valid. It has been also submitted that the appointment letters of
the appellants issued by the competent authority of the Government of Uttar
Pradesh specifically mentions that the services of appellants may be allotted to the
States of Uttar Pradesh or Uttarakhand after the appointed day.
12 We have heard learned counsel for the parties and perused the counter
affidavit filed on behalf of Respondent nos 1 to 3 and 5 who are presently
employees in the Uttarakhand secretariat and were petitioners before the High
Court. They had challenged the seniority list of employees in the Uttarakhand
Secretariat and the inclusion of the appellants as employees of Uttarakhand.
13 It has been submitted by the Respondents that:
(i) The appellants were appointed by the State of Uttar Pradesh to the posts of
Personal Assistant through the Uttar Pradesh Public Service Commission and they
were called upon to join the U.P. Secretariat at Lucknow after the reorganisation
of the State of U.P. Later, they were directed to join the Uttarakhand Secretariat
situated at Dehradun; and
(ii) Government of Uttarakhand by an order dated 22 November 2004 stated that
the appellants could not be allocated to the State of Uttarakhand.
8
14 In response, the State of Uttarakhand in its counter stated that:
(i) The State Reorganization Committee advised that with the consent of the State
of U.P., the appellants can be taken on transfer to the State of Uttarakhand as
there was an acute shortage of officers in the newly constituted State of
Uttarakhand;
(ii) Transfer was done only with the mutual consent of both the States and the
appellants; and
(iii) Transfer of the services of the appellants was affected after the creation of the
State of Uttarakhand is, therefore, not covered by any of the provisions of the U.P.
Reorganization Act, 2000, which has also been mentioned in the letter dated 3
September 2009 of the Government of India; and
iv) The Guidelines dated 13 September 2000 clearly envisage in respect of
recruitment against vacancies, that wherever panels have been drawn but not
published, they may be kept in abeyance till reorganization is given effect to. But
these guidelines did not contemplate what action is to be taken in a situation where
the selection has been made. Hence, in the absence of any specific provision in
the guidelines provided by the Government of India, the decision arrived with the
mutual consent of the two State governments does not suffer from any infirmity
and is justified.
9
15 In the counter affidavit filed on behalf of Union of India by the Under
Secretary, Department of Personnel & Training, Government of India, it was stated
that:
(i) Although the Central Government was made a party to Writ Petition no 1313 of
2005, before the High Court, it did not file a Counter affidavit as none of its
decisions was under challenge; and
(ii) The case was contested between private parties where the State Governments
were to furnish a reply. The Central Government has nothing to say in the matter
except that the appellants could not be allocated as they were out of the purview
of the U.P. Reorganisation Act, 2000 as they were inducted into service in 2001,
which is after the appointed day, 9 November 2000.
16 The State of Uttar Pradesh and the State Advisory Committee, who have
been arrayed as Respondent 8 and 9 in the instant appeals, have not filed counter
affidavits. No counter affidavit has been filed on behalf of Respondent 4 who was
one of the petitioners before the High Court.
17 The U.P. Reorganisation Act, 2000 empowered the Central Government to
issue directions to the State Governments of Uttar Pradesh and Uttarakhand from
time to time to resolve any issues envisaged under the Act. The power of the
10
Central Government under Section 77 of U.P. Reorganisation Act, 2000 is in the
following terms:
“77. Power of Central Government to give directions. — The
Central Government may give such directions to the State
Government of Uttar Pradesh and the State Government of
Uttaranchal as may appear to it to be necessary for the
purpose of giving effect to the foregoing provisions of this Part
and the State Government shall comply with such directions. “
18 The High Court has overlooked the guidelines issued by the Central
Government on 13 September 2000. Para (5)(c) of the guidelines refers to cases
of selections where results were published prior to the cut-off date but appointment
letters were not issued to candidates. Para (5) (c) contemplates that recruitments
would be kept in abeyance until final allocation orders were made. This was to be
so even where panels were drawn but not given effect to. The High Court has
directed its attention to a sole consideration, namely whether there existed any
statutory provision for transferring an employee from one state to another state.
The appellants were declared to be employees of the State of Uttar Pradesh by
the High Court without noticing that the appointment letters issued to them clearly
stipulated that their services could transferred to the successor state of
Uttarakhand. Such a transfer took place with the consent of both the states.
19 The State of Uttarakhand was created with the enactment of the
U.P.Reorganisation Act, 2000 which reorganized the State of Uttar Pradesh into
two states namely, the successor State of Uttar Pradesh and the State of
11
Uttarakhand. Under the Act, 9 November 2000 was the appointed day. During the
initial days after its formation, the State of Uttarakhand was facing an acute
shortage of officers in various departments including the Secretariat. The State of
Uttarakhand was seeking help from the State of Uttar Pradesh and the Central
Government to provide human resources. The Central Government, by its letter
dated 15 September 2004, permitted the transfer of employees on the basis of the
mutual consent of both the States. The State of U.P. gave options to existing
employees appointed before 9 November 2000 for transfer of their services to the
State of Uttarakhand. However, despite those efforts, a number of vacancies
continued in the newly formed State of Uttarakhand. Hence, various employees
who were already employed with the State of U.P. prior to the appointed day were
provided with a choice of permanent transfer of service to the State of Uttarakhand.
In the meantime, in the case of persons such as the appellants where recruitments
were completed but appointment letters were not issued the appointment letters
indicated that their services may be allotted either to the State of Uttar Pradesh or
the State of Uttarakhand after the appointed day. The services of the appellants
were transferred and absorbed by the State of Uttarakhand with the mutual
consent of both the states. Since then the appellants have been continuing as
employees of the State of Uttarakhand. 
12
20 There is no infirmity in the procedure adopted by both the states in the
transfer of employees, on the basis of mutual consent. This was clearly
contemplated by the letter dated 15 September 2014 of the Government of India
in the Ministry of Personnel, Public Grievances and Pensions. Hence, we are
unable to agree with the view of High Court.
21 Accordingly, we allow the appeals and set aside the impugned judgment and
order of the High Court. There shall be no order as to costs.
….....................................CJI
[DIPAK MISRA]

…......................................J
[Dr D Y CHANDRACHUD]

…......................................J
[INDIRA BANERJEE]
New Delhi
August 29, 2018

whether the Trial Court discarded material evidence in the form of eye­witness testimony on the issues of murder, attempt to murder and grievous hurt and completely overlooked evidence on other charges such as unlawful assembly and house­burning. Consequently, we find that the High Court has not given due consideration to the evidence on record to arrive at a reasoned conclusion and has thus failed to exercise its revisional jurisdiction in accordance with established principles. In our opinion, it would be appropriate for the High Court to undertake proper consideration of the material of the matter once again with due application of the judicial mind to find out as to whether the trial Court’s order has caused gross miscarriage of justice, manifest illegality or perversity.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1198 OF 2006
Menoka Malik and others ..Appellants
Versus
The State of West Bengal and others ..Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
1. The instant appeal arises out of the judgment and order
dated 30th June, 2004 passed in C.R.R. No. 765 of 2002 by the
High Court of Judicature at Calcutta confirming the judgment of
acquittal passed by the Sessions Judge at Burdwan dated 15th
2
December, 2001 in Sessions Case No. 91/1998 (Sessions Trial
No. 10(7)/2000).
2. The case of the prosecution in brief is that on 30.05.1993,
panchayat elections were held in Karanda village, wherein the
CPI(M) party won and the IPF party lost.  On the next day, i.e. on
31.05.1993, at about 8:30 a.m., 15 to 16 members of the IPF
party took shelter in the house of PW2, Badal Malik, their party
leader, upon being chased by some CPI(M) workers.  At around
1:30 p.m., Bhanu Hathi, Kachi Hathi and Bhaluk Hathi (accused
no.56/respondent no.57 herein) started to abuse PW3, Shyamali
Pakrey, the wife of PW30, Sunil Pakrey, an IPF supporter, upon
whose  protest,  the   CPI(M)  persons  mobilised  around  250­300
party   workers,   all   being   armed   with   weapons   such   as   lathi,
balam, tangi etc.  It is further the case of the prosecution that the
persons belonging to CPI(M) party set on fire the houses of IPF
members, including the party leader Badal Malik, assaulted IPF
members and broke into the houses of the locality and destroyed
household articles, apart from stealing an amount of Rs.700/­
and snatching a pair of gold earrings.   In the assault on IPF
members, five persons expired and 24 persons were seriously
injured.
3
3. The first information came to be lodged by Menoka Malik
(PW1/appellant   no.1   herein)   before   Memari   Police   Station,
Burdwan   District,   which   came   to   be   registered   in   Case   No.
82/1993 dated 31.05.1993 for the offences punishable under
Sections 147, 148, 149, 342, 448, 325, 326, 436, 379, 307 and
302 of the Indian Penal Code.
4. Charges were framed for the aforementioned offences.   As
many as 82 accused were tried.  49 witnesses were examined by
the prosecution, which included 36 eye witnesses, i.e. PWs 1­23,
29, 30, 31, 33, 34, 35, 39, 40, 42, 43, 44, 45 and 47. Out of
these, the testimonies of PWs 17 and 18 ran counter to the
prosecution’s   case,   and   PW42   claimed   to   not   recollect   the
incident on account of mental sickness.
5. The trial Court, at the outset, determined that there were
cogent allegations only against 32 persons out of the 82 accused
and proceeded to examine the evidence against those 32 persons
only. On evaluation of the material on record, the trial Court
acquitted all the accused by giving them the benefit of doubt. It
was observed by the trial Court that the prosecution sought to
establish the death of five persons through the use of sharp and
pointed weapons, but such factum was not alleged in the first
4
information report and only the factum of assault leading to the
death of two persons was reported; the names of the assailants
had not been disclosed in the first information report; several
witnesses were found to have admitted to have made disclosures
of allegations for the first time before the Court at the time of
recording   their   depositions;   the   evidence   of   the   investigating
officer disclosed a number of contradictions in the evidence of eye
witnesses; there was non­recovery of burnt articles, etc.  It was
also observed by the trial Court that the medical evidence was
contrary to the ocular testimony of the witnesses, inasmuch as
the post mortem reports of the deceased and medical reports of
the injured showed the absence of incised or punctured wounds,
wherein the prosecution witnesses had stated that the deceased
and injured had been assaulted with sharp weapons such as
tangi, ballam, kencha, etc.  The injuries found on the deceased as
well as on the injured persons were in the nature of bruises,
abrasions and lacerations, which, according to the trial Court,
might have been suffered due to a stampede.  On these, among
other grounds, the trial Court acquitted the accused.
6. The State did not prefer any appeal against the judgment
and order of acquittal passed by the trial Court.   However, the
5
first informant along with three others filed a revision petition
under Section 401 of the Code of Criminal Procedure before the
High Court.  During the course of hearing of the revision petition,
it was submitted on behalf of the revision petitioners that no case
is made out against 48 of the 82 accused, and that the revision
petition would be concerned only with rest of the 34 accused.  It
may be noted at this juncture that in the course of arguments
before us, it was brought to our notice that 6 out of these 34
accused are now dead.
7. The High Court found that there was no perversity or gross
procedural defect or error of law leading to glaring injustice, to
warrant interference with the decision of the trial Court.  Though
a number of contentions were raised by the revision petitioners
before the High Court, the High Court proceeded to decide the
revision petition merely on the basis of the above finding. The
only other finding was that the non­determination of the issue of
unlawful assembly by the trial Court in the manner suggested by
the appellants was not a sufficient reason to remand the case.
This was based on the reasoning that a direction for reappraisal
of evidence would create an unconscious impression in the mind
of the trial judge that the High Court wished the lower court to
6
reach a particular conclusion, and would also complicate the
issue in the given situation, where a large number of persons
were involved but no evidence existed against most of them. The
High Court further proceeded to observe that the trial Court had
reached   a   finding   of   acquittal   upon   a   consideration   of   the
probative value of the evidence on record, in accordance with set
canons of law, and upon a meticulous examination of the same.
Certain general observations relating to the revisional powers of
the High Court were adverted to by the High Court, while coming
to its conclusion.  Practically, the High Court has not touched the
case of the prosecution on merits, at least prima facie, to find out
as to whether the trial Court’s reasoning is just and proper or
not.
Preliminary Issue:
8. We   have   heard   learned   counsel   on   either   side.     Before
proceeding   further,   we   would   like   to   decide   the   preliminary
question that arose during the course of arguments regarding the
scope of interference by this Court with a judgment of the High
Court in exercise of its revisional power, affirming a conviction.
The question is no more res integra, inasmuch as this Court in
the case of Dharma vs. Nirmal Singh, (1996) 7 SCC 471 has held
7
that the bar under Section 401(3) does not restrict the power of
the Supreme Court under Article 136 of the Constitution.  While
concluding so, the following observations were made:
“4. Before   we   record   our   reading   of   the   evidence
produced   in   the   case,   let   a   legal   submission
advanced by Shri Lalit, appearing for the respondentaccused,
be dealt with. His submission is that as the
complainant   had   approached   the   High   Court   in
revision and as under the revisional power available
to the High Court under Section 401 CrPC, the High
Court could not have altered the finding of acquittal
into   one   of   conviction,  because  of   what   has   been
stated in sub­section (3) thereof, if we were to be
satisfied that the acquittal was wrongful, it would not
be within our competence to convict the respondent;
at best the case could be sent back for retrial. We are
not impressed with this submission inasmuch as the
approach to this Court being under Article 136 of the
Constitution. We do not read the limitation imposed
by Section 401(3) of the Code qua the power available
to us under the aforesaid provision. May it be pointed
out that a similar submission had been advanced by
Shri   Lalit   himself   in   the   case   of E.K.
Chandrasenan v. State of Kerala [(1995) 2 SCC 99 :
1995 SCC (Cri) 329 : JT (1995) 1 SC 496] , then
contending that this Court is incompetent to issue
rule   of   enhancement   as   had   been   done   in   those
cases. It was held in the aforesaid decision that the
power available to this Court under Article 136 is not
circumscribed by any limitation. In any case, power
under Article 142 is available to pass such order as
may be deemed appropriate to do complete justice.
We, therefore, reject this contention of Shri Lalit and
proceed to examine the materials to find out whether
case of conviction does exist, as the contention of the
appellant.”
8
9. In the case of  State of Rajasthan vs. Islam, (2011) 6 SCC
343, this Court relying upon the earlier judgment in  Dharma’s
case, held that if this Court is of the opinion that the acquittal is
not based on a reasonable view, then it may review the entire
material   and   there   will   be   no   limitation   on   this   Court’s
jurisdiction under Article 136 of the Constitution to come to a
just conclusion quashing the acquittal.
10. From the aforementioned decisions, it is amply clear that it
is open for this Court to review the entire material and there is no
limitation on this Court’s jurisdiction under Article 136 to come
to a just conclusion if it determines that the High Court’s view
was not reasonable. The restriction as contained under Section
401(3)   of   the   Cr.P.C.   on   the   High   Court   cannot   restrict   the
powers of this Court under Article 136 of the Constitution.  Thus,
it is for us to determine whether the view taken by the High
Court was reasonable or not based on available records.
Main Issue:
11. The   trial   Court,   while   coming   to   its   conclusion,   has
observed that several eye witnesses had revealed the material
facts before the trial Court for the first time, inasmuch as such
statements   of   the   witnesses   before   the   Court   are   material
9
improvements; such statements were not made by the witnesses
during the course of investigation before the police officials and
omissions are proved as per law.
However, we have endeavoured to satisfy our conscience
regarding   the   consistency/inconsistency   of   the   eyewitness
accounts. To that end, we have gone through the testimonies of
the   PWs.   As   we   do   not   wish   to   burden   this   judgment   by
discussing the testimonies of all PWs, we would like to revisit, as
examples, the testimonies of PWs 5, 7 and 14. Moreover, we are
mindful of the principle that in cases of this nature involving a
large number of offenders and a large number of victims, the
evidence of only two or three witnesses who give a consistent
account of the incident is sufficient to sustain conviction, as was
observed by this Court in the case of Masalti vs. State of U.P., AIR
1965 SC 202.
PW5, Anna Pakrey, deposed that on the day of the incident,
some IPF workers took shelter in the house of PW2, Badal Malik
on being threatened by some CPI(M) workers. After some time,
around 200­250 CPI(M) workers, including Harigopal Goswami
(A­80/R­81   herein),   Ram   Tah   (A­68/R­69   herein)   and   Satya
10
Chakroborty (A­71/R­72 herein) assembled around the house,
hurling abuses at the persons inside. The CPI(M) workers asked
Bhanu Hati (chargesheeted as accused, since deceased) to set the
house on fire, upon which the hiding people rushed out and took
shelter in the house of PW9, Mantu Mal, which was set on fire by
one Kachi Hati (a reference to Kartik Hazra, A­28/R­29 herein).
Thereafter, the IPF workers started running from room to room.
Dilip Pakrey (deceased), PW5’s husband, came out of the house,
at which point he was assaulted by Jiten Kora (A­1/R­2 herein),
Kena   Kora   (A­7/R­8   herein),   Bhola   Mukherjee   (A­77/R­78
herein),   and   Sitaram   Makar   (A­70/R­71   herein),   with   deadly
weapons such as tangi, bogi, and kencha. Pranab Bouri (A­40/R41
herein), struck Dilip Pakrey with a ballam. Sakti Gadi (A15/R­16
herein) passed urine in his mouth. At this point, PW5
fainted.   After   she   regained   consciousness,   she   went   around
looking for her children and got assaulted by Radhi Kora (A­8/R9
herein) with a shavol and by one Santana Majhi (a reference to
Sanatan   Mandi,   A­44/R­45   herein)   by   a   bamboo   lathi.   PW5
further stated that Manik  Hazra (deceased) was assaulted by
Sudeb Hati (a reference to Sudeb Hazra, A­30/R­31 herein), and
that one Rajib Kora cut off Manik Hazra’s penis.
11
PW7, Nemai Hazra is an injured witness. He deposed that
on   the   day   of   the   incident,   on   being   threatened   by   CPI(M)
workers, he, his elder brother Manik Hazra (deceased), PW10,
Uttam Hazra, PW33, Uday Hazra, one Madan Hazra (referring to
PW43, Madau  Hazra) and  Narayan  Hazra (referring to  PW39,
Harayan Hazra) took shelter in PW2 Badal Malik’s house. At
around 11­11.30 am, around 100­150 persons armed with lathis,
rods,   sabol,   tangi,   etc.   assembled   nearby,   upon   which   Badal
Malik left the house and did not return. Soon, the mob outside
surrounded the house, and started throwing stones, brickbats,
etc. at the house. Thereafter, they set the house on fire, with a
view to smoke out the hiding persons, upon which the people
hiding inside took shelter in PW9 Mantu Mal’s house. This house
was also set on fire, though PW7 did not see the perpetrator. As
the hiding persons came out, they started getting assaulted. PW7
was assaulted by Sudeb Hazra (A­30/R­31 herein) with a tangi,
Jeydeb   Hazra   (A­29/R­30   herein)   with   an   iron   rod,   Sitaram
Makar (A­70/R­71 herein) with a lathi, Sadhan Some (A­78/R­79
herein) with a lathi and by Becha Duley (A­67/R­68 herein) as
well.
12
In his cross examination, PW7 stated that he did not know
of any provocation for the incident.  He also stated that around
40­50 persons had hidden inside Badal Malik’s house. He further
stated that he was beaten severely by the mob, and received 8­10
lathi blows, one rod blow, and was also assaulted by tangi, sabol,
etc.
PW14,   Subhadra   Malik   is   the   mother   of   Manik   Hazra
(deceased) and PW2, Badal Malik. She deposed that on the day of
the incident, Manik Hazra along with several IPF supporters took
shelter   in   Badal   Malik’s   house,   where   PW14   also   lived,   after
CPI(M) workers started threatening IPF workers. Soon, several
CPI(M) workers surrounded the house. Bhanu Hati and his son
Bhaluk Hati (A­56/R­57 herein) entered the house, and the latter
set the house on fire on his father’s instruction. After being thus
smoked out, the hiding persons sought shelter in PW9 Mantu
Mal’s house, which was set ablaze by Kachi Hati (possibly Kartik
Hazra, A­28/R­29 herein, see supra). The IPF persons started
coming out one by one and got assaulted. Sitaram Makar (A70/R­71
herein), Abhoy Roy (A­69/R­70 herein), one Sakti Duley,
Joydev Duley, Joydev Hati (Joydeb Hazra, A­29/R­30 herein),
Sudeb Hati (Sudeb Hazra, A­30/R­31 herein), one Khudi Tah,
13
Ganesh Kshetrapal (A­39/R­40 herein), one Promod Kshetrapal
and one Angad Kshetrapal began to assault Dilip Pakrey. One
Pranab Pakrey pierced his belly with a ballam. Sona (Som) Kora
(deceased) was assaulted by Sitaram (A­70/R­71 herein), Abhoy
Roy (A­69/R­70 herein), Joydeb (A­20/R­21 herein), Sudeb Hari
(Sudeb Hazra, A­30/R­31 herein), Joydeb Hari (Joydeb Hazra, A29/R­30
  herein)   and   others.   Sadhan   Nayak   (deceased)   was
dragged out of PW9 Mantu Mal’s house and assaulted by Sitaram
(A­70/R­71 herein), Abhoy (A­69/R­70 herein) and others. Suko
Kora (A­53/R­54 herein) assaulted Sadhan with an axe and killed
him. Manik Hazra (deceased) was assaulted by Sitaram (A­70/R71
herein) with a ballam, and by Sudeb Hari (Sudeb Hazra, A30/R­31
herein) with a sabol, after which he died. Sudeb inserted
a sabol in his rectum. Rajib Kora cut off Manik’s penis with a
banti. PW14 further deposed that she herself was assaulted by
one Sudeb Tah, one Kena Bagdi and others with a lathi, after
which she lost consciousness. She was in hospital for a number
of days due to her injuries.  In her cross examination, she stated
that she did not recollect stating the above facts to the IO.
12. We   could   not   find   any   significant   variation   in   the
testimonies   of   all   these   witnesses.   No   major   contradiction   or
14
variation is found. The presence of the witnesses on the spot has
not  been  seriously  doubted  by  the  defence  during  the  crossexamination.
It is but natural to have certain minor variations in
the evidence of eye­witnesses, when a large number of people had
gathered to assault a smaller group of people and which resulted
in death of five persons and injuries to 24 persons. In such a
scenario, it could not have been possible to meticulously observe
all the actions of each and every accused. The Court also should
not expect from the witnesses to depose in a parrot­like fashion.
However, the overall evidence of these witnesses,  prima  facie,
appears to be untainted.
13. It is also evident that the above testimonies are consistent
on material facts, such as that on the day of the incident, CPI(M)
workers threatened IPF workers, who hid in PW2 Badal Malik’s
house. Thereafter, a mob of CPI(M) workers assembled outside
the house, which was set on fire to smoke out the hiding persons.
When they tried hiding in PW9 Mantu Mal’s house, that house
was set on fire as well. Finally, the IPF supporters ran out, at
which   point   they   were   assaulted   by   CPI(M)   persons.   All   the
witnesses may not be consistent on each and every detail, such
15
as   who   set   the   house   on   fire   and   who   hit   who   with   which
weapon, etc. It may be true that their depositions are found to
contain exaggerations such as the mutilation of deceased Manik
Hazra’s   penis,   which   was   found   to   be   intact   upon   medical
examination. However, such embellishments and inconsistencies
do not go to the root of the matter. Additionally, we find from the
material on record that the improvements, if any, were only with
respect to weapons that had been used in the assaults and not to
the factum of assaults per se. The improvements, if any, made for
the first time before the Court, no doubt, need to be eschewed.
But that does not mean that the entire evidence of the witnesses
should be ignored only on the said ground.
14.  It is a well settled position of law that the testimony of a
witness cannot be discarded in toto merely due to the presence of
embellishments   or   exaggerations.   The   doctrine   of  falsus   in
uno, falsus in omnibus, which means “false in one thing, false in
everything”   has   been   held   to   be   inapplicable   in   the   Indian
scenario,   where   the   tendency   to   exaggerate   is   common.   This
Court has endorsed the inapplicability of the doctrine in several
decisions, such as Nisar Ali v. State of Uttar Pradesh, AIR 1957
SC 366,   Ugar Ahir v. State of Bihar, AIR 1965 SC 277,   Sucha
16
Singh v. State of Punjab, (2003) 7 SCC 643,   Narain v. State of
Madhya Pradesh, (2004) 2 SCC 455  and  Kameshwar Singh v.
State of Bihar, (2018) 6 SCC 433. In  Krishna Mochi v. State of
Bihar, (2002) 6 SCC 81, this Court highlighted the dangers of
applying the doctrine in the Indian scenario:
“51.   …The   maxim falsus   in   uno,   falsus   in
omnibus has   no   application   in   India   and   the
witnesses   cannot   be   branded   as   liars.   The
maxim falsus in uno, falsus in omnibus (false in one
thing, false in everything) has not received general
acceptance nor has this maxim come to occupy the
status of rule of law. It is merely a rule of caution. All
that it amounts to is, that in such cases testimony
may   be   disregarded,   and   not   that   it   must   be
disregarded.   The   doctrine   merely   involves   the
question of weight of evidence which a court may
apply in a given set of circumstances, but it is not
what may be called “a mandatory rule of evidence”.
(See Nisar Ali v. State of U.P. [AIR 1957 SC 366 : 1957
Cri  LJ   550]  )…   The  doctrine   is   a  dangerous  one,
specially in India, for if a whole body of the testimony
were   to   be   rejected,   because   the   witness   was
evidently speaking an untruth in some aspect, it is to
be   feared   that   administration   of   criminal   justice
would come to a dead stop. Witnesses just cannot
help in giving embroidery to a story, however true in
the main. Therefore, it has to be appraised in each
case   as   to   what   extent   the   evidence   is   worthy   of
acceptance, and merely because in some respects the
court considers the same to be insufficient for placing
reliance on the testimony of a witness, it does not
necessarily follow as a matter of law that it must be
disregarded in all respects as well. The evidence has
to be sifted with care. The aforesaid dictum is not a
sound   rule   for   the   reason   that   one   hardly   comes
across a witness whose evidence does not contain a
17
grain   of   untruth   or   at   any   rate   exaggeration,
embroideries or embellishment. (See Sohrab v. State
of   M.P. [(1972)   3   SCC   751   :   1972   SCC   (Cri)   819]
and Ugar Ahir v. State of Bihar [AIR 1965 SC 277 :
(1965) 1 Cri LJ 256] .) An attempt has to be made to,
as   noted   above,   in   terms   of   felicitous   metaphor,
separate   the   grain   from   the   chaff,   truth   from
falsehood.”
 15. It is not uncommon for witnesses to make exaggerations
during the course of evidence.   But merely because there are
certain   exaggerations,   improvements   and   embellishments,   the
entire prosecution story should not be doubted.  In Ranjit Singh
v. State of Punjab, (1974) 4 SCC 552,  this Court observed:
“26. It   is   trite   that   even   when   exaggerations   and
embellishments are galore the courts can and indeed
are expected to undertake a forensic exercise aimed
at discovering the truth. The very fact that a large
number of people were implicated in the incident in
question who now stand acquitted by the High Court
need   not   have   deterred   the   High   Court   from
appreciating the evidence on record and discarding
what was not credible while accepting and relying
upon   what   inspired  confidence.  That   exercise   was
legitimate for otherwise the Court would be seen as
abdicating   and   surrendering   to   distortions   and/or
embellishments whether made out of bitterness or
any other reason including shoddy investigation by
the agencies concerned. The ultimate quest for the
court at all times remains “discovery of the truth”
and   unless   the   court   is   so   disappointed   with   the
difficulty besetting that exercise in a given case, as to
make it impossible for it to pursue that object, it
must make an endeavour in that direction.”
18
This Court in  State of Punjab v. Hari Singh (1974) 4 SCC 552,
observed as follows:
“16. As   human   testimony,   resulting   from   widely
different powers of  observation and description,  is
necessarily  faulty  and   even  truthful   witnesses not
infrequently exaggerate or imagine or tell half truths,
the Courts must try to extract and separate the hard
core of truth from the whole evidence. This is what is
meant   by   the   proverbial   saying   that   Courts   must
separate   “the   chaff   from   the   grain”.   If,   after
considering the whole mass of evidence, a residue of
acceptable truth is established by the prosecution
beyond any reasonable doubt the Courts are bound
to give effect to the result flowing from it and not
throw   it   overboard   on   purely   hypothetical   and
conjectural grounds.”
 16. Thus, it cannot be doubted that it is the duty of the Court to
separate the chaff from the grain. Moreover, minor variations in
the evidence will not affect the root of the matter, inasmuch as
such   minor   variations   need   not   be   given   major   importance,
inasmuch   as   they   would   not   materially   alter   the
evidence/credibility of the eye witnesses as a whole.
17. In light of the above discussion,  prima facie, we find from
the records that the versions of the eye witnesses cannot be said
to be untrustworthy, especially in light of the observation of this
Court in Masalti’s case (supra).  There are as many as 24 injured
19
eye witnesses in the case and their presence cannot be doubted.
In this situation, we find that the High Court has not applied its
judicial mind in determining whether the judgment of the trial
court was perverse inasmuch as the entire body of evidence was
discarded, simply on the basis that some of the witnesses had
deposed for the first time before the Court.
18. Curiously, the High Court has not at all considered the
evidence concerning charges other than murder.  Although, the
charges had been framed on questions such as burning houses,
unlawful assembly, etc., the evidence on these questions was
entirely overlooked and no finding was made by the trial Court as
well   as   the   High   Court.   For   instance,   the   Trial   Court   has
overlooked the entire evidence related to burning of houses, on
the sole ground that the burnt articles were not produced before
the Court. On the other hand, we find from the records that the
burnt articles were seized and produced before the Court, as is
clear from the seizure list (Ex. 1). 
19. So far as the issue of unlawful assembly and common object
of the unlawful assembly is concerned, the Court generally could
determine those aspects based on the evidence on record. In the
20
matter on hand, 36 eye­witnesses are available. According to the
case of the prosecution, all the accused came in a group to the
house of PW2, Badal Malik and PW9, Mantu Mal, and torched
these houses knowing fully well that the IPF party men had
assembled in those houses.  Prima facie, the Court can visualize
the common object of unlawful assembly from this evidence. The
Court cannot expect the prosecution to prove its case by leading
separate   evidence   with   respect   to   unlawful   assembly   and
common object. If those factors can be found out based on the
available material on record, there is no reason as to why the
Courts should ignore the same.
20. The   non­consideration   of   such   vital   issues   by   the   High
Court, without which a question before the Court could not have
been satisfactorily determined, has led to injustice of a serious
and substantial character, warranting interference of this Court
and remand of the matter to the High Court for rehearing.  We
find that the High Court has failed to consider whether the trial
Court brushed aside material evidence related to the issue of
murder,   attempt   to   murder   and   grievous   hurt,   and   entirely
overlooked   material   evidence   on   vital   issues   such   as   house
21
burning, grievous hurt and unlawful assembly.   Thus, in this
aspect too, the High Court has failed to apply its judicial mind to
verify whether the judgment of acquittal passed by the trial Court
was perverse or not.
21. With regard to the conflict between the ocular testimony
and the medical evidence, in our considered opinion, the High
Court   has   ignored   the   fact   that   lathis   were   also   used   while
assaulting along with sharp edge weapons.   Moreover, it is by
now well settled that the medical evidence cannot override the
evidence   of   ocular   testimony   of   the   witnesses.     If   there   is   a
conflict between the ocular testimony and the medical evidence,
naturally the ocular testimony prevails.   In other words, where
the   eye   witnesses   account   is   found   to   be   trustworthy   and
credible, medical opinion pointing to alternative possibilities is
not accepted as conclusive [See State of U.P. vs. Krishna Gopal,
(1988) 4 SCC 302]. We do not wish to comment further on the
merits   of   the   matter   at   this   stage   since   the   matter   needs
remittance to the High Court. 
22. The High Court has not at all assigned any cogent reason
for reaching its conclusion.   We are conscious of the fact that
22
revisional jurisdiction must be exercised by the High Court only
in exceptional circumstances, where there is a gross miscarriage
of justice, manifest illegality or perversity in the judgment of the
lower court.  Interference would be warranted only if there is a
manifest illegality in the judgment of the lower court.  But in the
matter   on   hand,   in   our   considered   opinion,   because   of   nonfurnishing
of valid reasons by the Trial Court, while coming to its
conclusion, there is manifest illegality, and thus, the view taken
by the High Court cannot be termed as reasonable. When there is
a glaring defect or manifest error leading to a flagrant miscarriage
of   justice,   this   Court   cannot   shut   its   eyes   merely   on
technicalities,   particularly   while   exercising   jurisdiction   under
Article 136 of the Constitution.   In our considered opinion, the
revisional jurisdiction vested in the High Court has not been
properly exercised by the High Court.  The High Court should not
have proceeded casually while affirming the judgment of the trial
Court.     Having   regard   to   the   material   on   record   and   having
regard to the magnitude of the offence, the High Court should
have been more serious while considering the revision petition.
23. In the case of Sheetala Prasad vs. Shree Kant (2010) 2 SCC
190,  this   Court   noted   the   principles   on   which   the   revisional
23
jurisdiction can be exercised.  The relevant observations of this
Court are as under:
“12. The   High   Court   was   exercising   the   revisional
jurisdiction at the instance of a private complainant
and, therefore, it is necessary to notice the principles
on   which   such   revisional   jurisdiction   can   be
exercised. Sub­section (3) of Section 401 of the Code
of   Criminal   Procedure   prohibits   conversion   of   a
finding of acquittal into one of conviction. Without
making   the   categories   exhaustive,   revisional
jurisdiction can be exercised by the High Court at the
instance of a private complainant
(1)   where   the   trial   court   has   wrongly   shut   out
evidence which the prosecution wished to produce,
(2)   where   the   admissible   evidence   is   wrongly
brushed aside as inadmissible,
(3) where the trial court has no jurisdiction to try
the case and has still acquitted the accused,
(4)  where   the   material   evidence   has   been
overlooked either by the trial court or the appellate
court   or   the   order   is   passed   by   considering
irrelevant evidence, and
(5)   where   the   acquittal   is   based   on   the
compounding of the offence which is invalid under
the law.
13. By   now,   it   is   well   settled   that   the   revisional
jurisdiction, when invoked by a private complainant
against an order of acquittal, cannot be exercised
lightly   and   that   it   can   be   exercised   only   in
exceptional cases where the interest of public justice
requires   interference   for   correction   of   manifest
illegality  or  the  prevention  of  gross miscarriage of
justice. In these cases, or cases of similar nature,
retrial or rehearing of the appeal may be ordered.”
24
    (Emphasis Supplied)
24. From the aforementioned decision, it is clear that where the
material evidence has been overlooked either by the trial Court or
by the appellate Court or the order is passed by considering
irrelevant evidence, the revisional jurisdiction can be exercised by
the High Court.  In the matter on hand, as already mentioned,
material evidence has been overlooked by the Trial Court and the
High Court was incorrect in observing that the witnesses have
deposed for the first time before the court.   We have already
clarified that the contradictions and improvements were minor in
nature, e.g. mainly with regard to weapons used.  In the matter
on hand, the presence of the witnesses is not in dispute, and the
fact that 24 witnesses have suffered injuries cannot be disputed
either. Five deaths have also taken place.  Curiously, the Courts
have observed that the injuries must have been suffered in a
stampede.  There is no reason as to why only one group of people
would sustain injuries in the alleged stampede, if any. Thus, the
theory of stampede also prima facie may not be available to the
defendant having regard to the evidence on record.    Moreover,
25
the material evidence regarding the charges other than murder
has also been ignored.
25. Thus, the High Court has failed to consider whether the
Trial Court discarded material evidence in the form of eye­witness
testimony   on   the   issues   of   murder,   attempt   to   murder   and
grievous   hurt   and   completely   overlooked   evidence   on   other
charges   such   as   unlawful   assembly   and   house­burning.
Consequently, we find that the High Court has not given due
consideration to the evidence on record to arrive at a reasoned
conclusion   and   has   thus   failed   to   exercise   its   revisional
jurisdiction   in   accordance   with   established   principles.   In   our
opinion, it would be appropriate for the High Court to undertake
proper consideration of the material of the matter once again with
due application of the judicial mind to find out as to whether the
trial   Court’s   order   has   caused   gross   miscarriage   of   justice,
manifest illegality or perversity.
26. Before parting with the matter, we hasten to add that any
observations made in this order will not influence the High Court
in   deciding   the   revision   petition   on   merits.   With   these
observations, the appeal is allowed, the impugned judgment and
order of the High Court dated 30.06.2004 passed in C.R.R. No.
26
765 of 2002 is set aside and the matter is remitted to the High
Court to decide the revision petition on merits, in accordance
with law.
……………………………………..J.
[N.V. RAMANA]
NEW DELHI; ………………………………………J.
AUGUST 28, 2018. [MOHAN M. SHANTANAGOUDAR]

suit for a declaration that the Quilon Metropolitan and the Vicars appointed by him have exclusive right to conduct religious services in the plaint church, Cemetery and Kiurisumthotty and prayed for prohibitory injunction restraining the defendants and 1 others who do not obey the plaintiffs/appellants from entering the plaint church and plaint schedule properties. = K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Church and others (2017) 15 SCC 333 under Article 26 of the Constitution of India”. After referring to various judgments rejecting the contention of the Patriarch of Antioch as to the violation of the right under Articles 25 and 26 of the Constitution of India. In para (146) of the judgment, it was held as under:- “146. …….. Spiritual power is also with various authorities like Catholicos, Malankara Metropolitan, etc. Thus it is too far-fetched an argument that the Patriarch of Antioch or his delegate should appoint a Vicar or priest. There is no violation of any right of Articles 25 or 26 of the Constitution of India. Neither any of the provisions relating to appointment of the Vicar can be said to be in violation of any of the rights under Articles 25 and 26 of the Constitution of India. The 1934 Constitution cannot be said to be in violation of Articles 25 and 26 of the Constitution of India. It was suggested that the faith involved in the present case refers to apostolic succession from Jesus Christ viz. the blessings and grace of Christ descends through an apostle i.e. St. Peter or St. Thomas as the case may be, and from the said apostle to the Pope/Patriarch who appoints a Vicar. The argument ignores and overlooks other offices that are inbetween like Catholicos, Malankara Metropolitan, and Diocesan Metropolitan, etc. It is not necessary for the Pope and the Patriarch to appoint Vicar because management of a Church is not a religious ritual.”- The impugned judgment of the Division Bench is in contradiction to the judgments of the Supreme Court in Thukalan K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Church and others (2017) 15 SCC 333 Paula Avira34, P.M.A. Metropolitan35 and K.S. Varghese case36 and the same cannot be sustained. In the result, the impugned judgment is set aside and these appeals are allowed.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6263-6265 OF 2001
MATHEWS MAR KOORILOS (DEAD)
AND ANR. ETC. ….Appellants
Versus
M. PAPPY (DEAD) AND ANOTHER ETC. ….Respondents
J U D G M E N T
R. BANUMATHI, J.
Suit O.S. No.187 of 1977 was filed by appellant
No.1/Metropolitan of Quilon Diocese of the Malankara Orthodox
Syrian Church and appellant No.2/Vicar appointed by him for St.
Mary’s Church, Kattachira. Defendants/respondents in the suit
represent the Parishioners of the Church. Plaintiffs/appellants inter
alia prayed for a declaration that the Quilon Metropolitan and the
Vicars appointed by him have exclusive right to conduct religious
services in the plaint church, Cemetery and Kiurisumthotty and
prayed for prohibitory injunction restraining the defendants and
1
others who do not obey the plaintiffs/appellants from entering the
plaint church and plaint schedule properties.
2. Case of the appellants is that as per Ext.-A3 (original of which
is Ext.-B19) assignment-cum-gift deed dated 29.06.1972, the first
defendant C.K. Koshy assigned the plaint properties along with the
church and cemetery etc. situated thereon, to the Metropolitan,
Quilon Diocese and that they are entitled to conduct religious
services and to manage the church and its properties. The
Parishioners who question such authority are not entitled to hold
any office as members of the Church Committee or to enter the
church.
3. Defendants/respondents who are said to be the
representatives of the Parishioners contended that the Church was
founded with the object of conducting religious services by religious
dignitaries who possess the spiritual grace transmitted from the
Patriarch of Antioch and all the East, for the benefit of the
Parishioners. The church and its properties constitute a trust and
can be used only for the purpose for which it was founded. The
respondents/defendants contended that the plaintiffs/appellants
have repudiated and defied the spiritual powers of the Patriarch and
the appellants/plaintiffs are not entitled to conduct any religious
services in the plaint church. According to them, the plaint church is
2
administered under the Constitution framed by the Parishioners
marked as Ext.-B9 dated 23.01.1959 and no priest can function in
the church without the consent of the Parishioners.
4. The Parishioners/respondents have filed a separate suit in
O.S. No.17 of 1976 challenging the validity of Ext.-A3-Sale-cum-Gift
Deed (dated 29.06.1972) in favour of Quilon Metropolitan. On the
same grounds taken by them in the other suit, they alleged that as
beneficiaries of the Church and as its Managing Committee
Members, they are entitled to see that its properties are not lost.
They prayed for a decree declaring that Ext.-A3-Sale-cum-Gift Deed
is ab initio void and for a perpetual injunction restraining the
Metropolitan from implementing any of the provisions in the said
document.
5. The trial court vide common judgment dated 06.03.1986
dismissed the suit O.S. No.17 of 1976 filed by the respondents and
decreed the appellant’s suit O.S. No.187 of 1977, declaring that the
appellants have the right to conduct religious services in the plaint
church and cemetery. The trial court granted permanent injunction
restraining the respondents/defendants and persons who do not
obey the plaintiffs/appellants from entering the church and the plaint
schedule properties and conducting religious services, and
obstructing others who obey the plaintiffs/appellants. The
3
respondents/defendants were also restrained from obstructing the
appellants in completing the construction of the Kattachira church
building or attending to its repairs.
6. Being aggrieved, the respondents/defendants filed appeals
A.S. Nos.140 and 142 of 1986 in O.S. No.187 of 1977 before the
High Court of Kerala challenging the common judgment dated
06.03.1986. The Single Judge dismissed both the appeals and held
as under:-
1. Various clauses of Ext. A3 gift deed dated 29.06.1972 make it
clear that the executant Koshy gave the assignment-cum-gift in
favour of the Quilon Metropolitan intending that it may be
treated as Bhadrasanam properties. Ext. A3 also provided that
the Metropolitan may directly administer the said properties or
through his representative and that the Parishioners and the
Managing Committee should abide by the dictates of the
Metropolitan from time to time. In view of the unambiguous
terms in Ext. A3, the parishioners are not entitled to question
the right of Metropolitan over the plaint church and its properties
and its right to conduct religious services.
2. Ext. A3 makes it clear that a particular individual has gifted the
properties in favour of the first appellant Metropolitan to be
treated as Bhadrasanam properties and subject to the control of
the first appellant Metropolitan. Once it is recognised that the
properties are Bhadrasanam properties over which the first
appellant Metropolitan can exercise absolute control and
management, appellants are entitled to these reliefs.
3. The 1934 constitution shall govern and regulate the affairs of
the Parish Churches too. The Parish Churches are not
exempted from the clauses of the 1934 Constitution and they
are equally constituent of the Malankara Association though it
enjoys some degree of autonomy.
4. The ex-communication of Catholicos by the Patriarch and/or by
the Universal Synod is invalid.
The Single Judge also held that it is Vicar who should conduct the
election as provided in Ext.-A1 Constitution. However, in order to
4
allay the apprehension of both parties and to ensure that the
election is free and fair and in accordance with Ext.-A1 Constitution,
the Single Judge appointed two observers to oversee the process of
election right from the beginning to ensure that the conditions in
Ext.-A1 1934 Constitution and the directions of the Supreme Court
are followed.
7. Being aggrieved, the defendants/respondents filed appeals
A.F.A. Nos.26-27 of 1997 before the Division Bench. The Division
Bench vide common judgment dated 04.04.2000 allowed CRP
No.1314 of 1998 and disposed of AFA Nos.26-27 of 1997 and set
aside the findings of Single Judge. The Division Bench recorded its
conclusions as under:-
 That the civil courts have jurisdiction to entertain suits relating
to church and its properties and to mould reliefs in such a way
as to promote the paramount interest of the parishioners and
to reflect the will of the community.
 That though the title of the properties vests with the Quilon
diocese, the properties including church, cemetery etc. under
Ext.-A3 are still under the control and management of the
parishioners of St. Marys Syrian Church, Kattachira.
 That the first plaintiff-Metropolitan of Quilon Diocese had no
authority to appoint Vicar for the control and management of
the plaint church and its properties though Ext.-A3-Sale-cumGift
Deed executed by C.K. Koshy in favour of Quilon Diocese
and C.K. Koshy, executor of Ext.-A3-Sale-cum-Gift Deed
intended to transfer his right in the properties over for the
5
benefit of entire members of the Church and that the
Parishioners have the power to hold the movable and
immovable properties of St. Mary’s Church.
 That the provisions of the 1934 Constitution sufficiently
establish that the Parishioners have power to hold movable
and immovable items of properties.
8. We have heard learned senior counsel for the parties at
length. We have considered the written submissions and perused
the impugned judgment and other materials on record.
9. The issue of spiritual and temporal authority between
Malankara Church and the Patriarch of Antioch has been the
subject matter of several rounds of litigations in various matters right
from the year 1879. It is not necessary for us to elaborately refer to
those litigations; suffice to refer the litigations which led to the
Constitution Bench judgment in Moram Mar Basselios Catholicos
v. Thukalan Paulo Avira and others AIR 1959 SC 31 and the
judgment of three-Judges Bench in Most Rev. P.M.A. Metropolitan
and others v. Moran Mar Marthoma and another 1995 Supp (4)
SCC 286 and the latest judgment in K.S. Varghese and others v.
Saint Peter’s and Saint Paul’s Syrian Orthodox Church and
others (2017) 15 SCC 333.
10. Samudayam Suit:- The Patriarch group in the year 1938 filed
Samudayam suit in the District Court, Kottayam for a declaration of
their title as trustees of Samudayam properties (common properties
6
of the Malankara Church) and for a further declaration that the
defendants to that suit belonging to Catholicos group, were not
lawful trustees. The suit was dismissed by the trial court on
18.01.1943 against which the plaintiff thereon filed an appeal which
was allowed on 08.08.1946 and the suit was decreed1
 by majority of
Judges by 2:1. The matter was carried to this Court. This Court
directed2
 the High Court to rehear the appeal on all the points.
Thereafter appeal was reheard and was allowed vide judgment
dated 13.12.1956. The suit was decreed. The defendants,
Catholicos group, filed an appeal in this Court which was allowed on
12.09.1958 as per Moram Mar Basselios Catholicos v. Thukalan
Paulo Avira and others AIR 1959 SC 31. Samudayam suit has
been elaborated and discussed in paras (17) to (21) in K.S.
Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333.
11. In the year 1979, Catholicos filed O.S. No. 4 of 1979 inter alia
praying that Malankara Church be declared Episcopal in character
and that it is governed in its administration by the Constitution of the
Malankara Church. The Catholicos sought for further declaration
1
Moram Mar Basselios Catholicos & Anr. v. Most Rev. Mar Poulose
Athanasius & Ors. 1951 SCC OnLine Ker 7
2
Moram Mar Basselios Catholicos & Anr. v. Mar Poulose Athanasius
& Ors. AIR 1954 SC 526
7
that no metropolitan, priest or deacon can officiate in any of the
Malankara Churches unless appointed under 1934 Constitution.
After dismissal of the suit by the Single Judge of the High Court, the
Division Bench allowed the appeal thereby upholding the claim of
Catholicos group to larger extent. The matter finally reached to
Supreme Court. The Supreme Court in Most Rev. P.M.A.
Metropolitan and others v. Moran Mar Marthoma and another
1995 Supp (4) SCC 286 held that the power and authority of the
Catholicos was affirmed in Kalpana A-13 and A-14 and was
reinforced and enlarged in 1934 Constitution. It was held that 1934
Constitution is applicable to Malankara Church and its parish
Churches and organisations recognising that the Malankara has
control over both spiritual and communal affairs of the Malankara
Church. It was held that the Patriarch group cannot question the
legality and validity of the 1934 Constitution. The court issued
further directions for amendment of clause 68 of Constitution to
bring about proportional representation based on the size of
congregation of each Parish Church.
12. In P.M.A. Metropolitan3
, this Court has inter alia recorded the
conclusions in para (89) as under:-
3
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
8
“89. The conclusions thus reached are:
1. (a) The civil courts have jurisdiction to entertain the suits for violation
of fundamental rights guaranteed under Articles 25 and 26 of the
Constitution of India and suits.
(b) The expression ‘civil nature’ used in Section 9 of the Civil
Procedure Code is wider than even civil proceedings, and thus
extends to such religious matters which have civil consequence.
(c) Section 9 is very wide. In absence of any ecclesiastical courts any
religious dispute is cognizable, except in very rare cases where the
declaration sought may be what constitutes religious rite.
………
4. (a) The effect of the two judgments rendered by the Appellate Court
of the Royal Court and in Moran Mar Basselios (supra) by this
Court is that both Catholicos and Patriarch groups continue to be
members of the Syrian Orthodox Church.
(b) The Patriarch of Antioch has no temporal powers over the
Churches.
(c) Effect of the creation of Catholicate at Malankara and 1934
Constitution is that the Patriarch can exercise spiritual powers
subject to the Constitution.
(d) The spiritual powers of the Patriarch of Antioch can be exercised by
the Catholico in accordance with the Constitution.
5. (a) The Hudaya Canon produced by the Patriarch is not the
authentic version.
(b) There is no power in the Hudaya Canon to excommunicate
Catholicos.
6. The excommunication of the Catholicos by the Patriarch was invalid.
7. All churches, except those which are of Evangelistic Association or
Simhasana or St. Mary are under spiritual and temporal control of
the Malankara Association in accordance with 1934 Constitution.”
The judgment in P.M.A. Metropolitan4 has been elaborately
referred to and discussed in paras (26) to (36) in K.S. Varghese
case5
.
4
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
5
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
9
13. Amendment of the Constitution as per P.M.A.
Metropolitan6
 judgment:- Amendment proposals were considered
by this Court in P.M.A. Metropolitan7
. This Court permitted the
amendment and directed substitution of Section 68 corresponding
to Section 71 and also directed that the election shall take place
within three months on the basis of Articles 71 and 46 as amended.
This Court further directed status quo to be maintained until the new
Managing Committee was elected. Subsequently, the matter came
up again before this Court pursuant to the P.M.A. Metropolitan8
and revised decree was passed in Most Rev. P.M.A. Metropolitan
and others v. Moran Mar Marthoma Mathews and another (1996)
8 SCC 470. The court directed certain modifications in paras (2),
(3) and (4). This Court inter alia held thus:-
“5. The decree shall then say that the decree passed by the High
Court (decree under appeal) shall stand modified to the extent
indicated above.
PART II
6
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
7
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
8
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
10
6. In Part II of the order dated 25.03.19969
, the following sentence
shall be inserted before the last sentence: ‘The above direction is
subject to the condition that any and every person claiming to hold
any office or post in this Church shall be bound by and shall swear
allegiance to the 1934 Constitution.’” [Referred to and quoted in
para (39) of K.S. Varghese case10]
The judgment in P.M.A. Metropolitan11 was implemented in
execution proceedings before the Kerala High Court. The details of
the execution proceedings are discussed in paras (40) to (42) in
K.S. Varghese case12
.
14. Dispute arose relating to Kolenchery Church, Varikoli Church
and Mannathur Church regarding which civil suits were filed in a
representative capacity. The dispute arising from all these three
Churches travelled to this Court. This Court again considered the
earlier judgments in Moram Mar Basselios Catholicos v.
Thukalan Paulo Avira and others AIR 1959 SC 31 and Most Rev.
P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286. After considering the
9
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma
Mathews and another (1996) 8 SCC 470
10
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
11
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
12
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
11
submissions on both sides, in the light of Thukalan Paula Avira13
and P.M.A. Metropolitan14 judgments and after such elaborate
consideration, this Court in K.S. Varghese case15 summarised the
conclusions inter alia as under:-
“228. Resultantly, based on the aforesaid findings in the judgment,
our main conclusions, inter alia, are as follows:
228.1. Malankara Church is episcopal in character to the extent it is
so declared in the 1934 Constitution. The 1934 Constitution fully
governs the affairs of the parish churches and shall prevail.
228.2. The decree in the Most Rev. P.M.A. Metropolitan v. Moran
Mar Marthoma 1995 Supp (4) 286 is completely in tune with the
judgment. There is no conflict between the judgment and the
decree.
228.3. The Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma
1995 Supp (4) 286 arising out of the representative suit is binding
and operates as res judicata with respect to the matters it has
decided, in the wake of the provisions of Order 1 Rule 8 and
Explanation 6 to Section 11 CPC. The same binds not only the
parties named in the suit but all those who have interest in the
Malankara Church. Findings in earlier representative suit i.e.
Samudayam suit are also binding on parish churches/parishioners
to the extent issues have been decided.
228.4. As the 1934 Constitution is valid and binding upon the parish
churches, it is not open to any individual Church, to decide to have
their new Constitution like that of 2002 in the so-called exercise of
right under Articles 25 and 26 of the Constitution of India. It is also
not permissible to create a parallel system of management in the
Churches under the guise of spiritual supremacy of the Patriarch.
228.5. The Primate of Orthodox Syrian Church of the East is
Catholicos. He enjoys spiritual powers as well, as the Malankara
Metropolitan. Malankara Metropolitan has the prime jurisdiction
regarding temporal, ecclesiastical and spiritual administration of
Malankara Church subject to the riders provided in the 1934
Constitution.
13
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
14
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
15
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
12
228.6. Full effect has to be given to the finding that the spiritual
power of the Patriarch has reached to a vanishing point.
Consequently, he cannot interfere in the governance of parish
churches by appointing Vicar, priests, Deacons, Prelates (High
Priests), etc. and thereby cannot create a parallel system of
administration. The appointment has to be made as per the power
conferred under the 1934 Constitution on the Diocese,
Metropolitan, etc. concerned.
228.7. Though it is open to the individual member to leave a
Church in exercise of the right not to be a member of any
association and as per Article 20 of the Universal Declaration of
Human Rights, the Parish Assembly of the Church by majority or
otherwise cannot decide to move Church out of the Malankara
Church. Once a trust, is always a trust.
228.8. When the Church has been created and is for the benefit of
the beneficiaries, it is not open for the beneficiaries, even by a
majority, to usurp its property or management. The Malankara
Church is in the form of a trust in which, its properties have vested.
As per the 1934 Constitution, the parishioners though may
individually leave the Church, they are not permitted to take the
movable or immovable properties out of the ambit of the 1934
Constitution without the approval of the Church hierarchy.
228.9. The spiritual power of Patriarch has been set up by the
appellants clearly in order to violate the mandate of the Most Rev.
P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp (4) 286 of
this Court which is binding on the Patriarch, Catholicos and all
concerned.
228.10. As per the historical background and the practices which
have been noted, the Patriarch is not to exercise the power to
appoint Vicar, priests, Deacons, Prelates, etc. Such powers are
reserved to other authorities in the Church hierarchy. The Patriarch,
thus, cannot be permitted to exercise the power in violation of the
1934 Constitution to create a parallel system of administration of
Churches as done in 2002 and onwards.
228.11. This Court has held4 in 1995 that the unilateral exercise of
such power by the Patriarch was illegal. The said decision has also
been violated. It was only in the alternative this Court held in the
Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp
(4) 286 that even if he has such power, he could not have
exercised the same unilaterally which we have explained in this
judgment.
228.12. It is open to the parishioners to believe in the spiritual
supremacy of the Patriarch or apostolic succession but it cannot be
used to appoint Vicars, priests, Deacons, Prelates, etc. in
contravention of the 1934 Constitution.
228.13. Malankara Church is episcopal to the extent as provided in
the 1934 Constitution, and the right is possessed by the Diocese to
settle all internal matters and elect their own Bishops in terms of the
said Constitution.
13
228.14. Appointment of Vicar is a secular matter. There is no
violation of any of the rights encompassed under Articles 25 and 26
of the Constitution of India, if the appointment of Vicar, priests,
Deacons, Prelates (High priests), etc. is made as per the 1934
Constitution. The Patriarch has no power to interfere in such
matters under the guise of spiritual supremacy unless the 1934
Constitution is amended in accordance with law. The same is
binding on all concerned.
228.15. Udampadies do not provide for appointment of Vicar,
priests, Deacons, Prelates, etc. Even otherwise once the 1934
Constitution has been adopted, the appointment of Vicar, priests,
Deacons, Prelates (High priests), etc. is to be as per the 1934
Constitution. It is not within the domain of the spiritual right of the
Patriarch to appoint Vicar, priests, etc. The spiritual power also
vests in the other functionaries of the Malankara Church.
228.16. The functioning of the Church is based upon the division of
responsibilities at various levels and cannot be usurped by a single
individual howsoever high he may be. The division of powers under
the 1934 Constitution is for the purpose of effective management of
the Church and does not militate against the basic character of the
Church being episcopal in nature as mandated thereby. The 1934
Constitution cannot be construed to be opposed to the concept of
spiritual supremacy of the Patriarch of Antioch. It cannot as well, be
said to be an instrument of injustice or vehicle of oppression on the
parishioners who believe in the spiritual supremacy of the Patriarch.
228.17. The Church and the cemetery cannot be confiscated by
anybody. It has to remain with the parishioners as per the
customary rights and nobody can be deprived of the right to enjoy
the same as a Parishioner in the Church or to be buried honourably
in the cemetery, in case he continues to have faith in the Malankara
Church. The property of the Malankara Church in which is also
vested the property of the parish churches, would remain in trust as
it has for time immemorial for the sake of the beneficiaries and no
one can claim to be owners thereof even by majority and usurp the
Church and the properties.
228.18. The faith of Church is unnecessarily sought to be divided
vis-à-vis the office of Catholicos and the Patriarch as the common
faith of the Church is in Jesus Christ. In fact an effort is being made
to take over the management and other powers by raising such
disputes as to supremacy of Patriarch or Catholicos to gain control
of temporal matters under the garb of spirituality. There is no good
or genuine cause for disputes which have been raised.
228.19. The authority of Patriarch had never extended to the
government of temporalities of the Churches. By questioning the
action of the Patriarch and his undue interference in the
administration of Churches in violation of the Most Rev. P.M.A.
Metropolitan v. Moran Mar Marthoma 1995 Supp (4) 286, it cannot
be said that the Catholicos faction is guilty of repudiating the
spiritual supremacy of the Patriarch. The Patriarch faction is to be
14
blamed for the situation which has been created post 1995
judgment4. The property of the Church is to be managed as per the
1934 Constitution. The judgment of 19954 has not been respected
by the Patriarch faction which was binding on all concerned. Filing
of writ petitions in the High Court by the Catholicos faction was to
deter the Patriarch/his representatives to appoint the Vicar, etc. in
violation of the 1995 judgment4 of this Court.
228.20. The 1934 Constitution is enforceable at present and the
plea of its frustration or breach is not available to the Patriarch
faction. Once there is Malankara Church, it has to remain as such
including the property. No group or denomination by majority or
otherwise can take away the management or the property as that
would virtually tantamount to illegal interference in the management
and illegal usurpation of its properties. It is not open to the
beneficiaries even by majority to change the nature of the Church,
its property and management. The only method to change
management is to amend the Constitution of 1934 in accordance
with law. It is not open to the parish churches to even frame byelaws
in violation of the provisions of the 1934 Constitution.
228.21. The Udampadies of 1890 and 1913 are with respect to
administration of churches and are not documents of the creation of
the trust and are not of utility at present and even otherwise cannot
hold the field containing provisions inconsistent with the 1934
Constitution, as per Section 132 thereof. The Udampady also
cannot hold the field in view of the authoritative pronouncements
made by this Court in the earlier judgments as to the binding nature
of the 1934 Constitution.
228.22. The 1934 Constitution does not create, declare, assign,
limit or extinguish, whether in present or future any right, title or
interest, whether vested or contingent in the Malankara Church
properties and only provides a system of administration and as
such is not required to be registered. In any case, the Udampadies
for the reasons already cited, cannot supersede the 1934
Constitution only because these are claimed to be registered.
228.23. In otherwise episcopal Church, whatever autonomy is
provided in the Constitution for the Churches is for management
and necessary expenditure as provided in Section 22, etc.
228.24. The formation of the 2002 Constitution is the result of illegal
and void exercise. It cannot be recognised and the parallel system
created thereunder for administration of parish churches of
Malankara Church cannot hold the field. It has to be administered
under the 1934 Constitution.
228.25. It was not necessary, after amendment of the plaint in
Mannathoor Church matter, to adopt the procedure once again of
representative suit under Order 1 Rule 8 CPC. It remained a
representative suit and proper procedure has been followed. It was
not necessary to obtain fresh leave.
15
228.26. The 1934 Constitution is appropriate and adequate for
management of the parish churches, as such there is no necessity
of framing a scheme under Section 92 CPC.
228.27. The plea that in face of the prevailing dissension between
the two factions and the remote possibility of reconciliation, the
religious services may be permitted to be conducted by two Vicars
of each faith cannot be accepted as that would amount to
patronising parallel systems of administration.
228.28. Both the factions, for the sake of the sacred religion they
profess and to pre-empt further bickering and unpleasantness
precipitating avoidable institutional degeneration, ought to resolve
their differences if any, on a common platform if necessary by
amending the Constitution further in accordance with law, but by no
means, any attempt to create parallel systems of administration of
the same Churches resulting in law and order situations leading to
even closure of the Churches can be accepted.”
15. Though various arguments were advanced by learned senior
counsel Mr. Shyam Divan to urge that the conclusions arrived in
K.S. Varghese case16 is not in consonance with the judgment in
P.M.A. Metropolitan17
, the same do not merit acceptance. Having
carefully gone through the conclusions in para (228) of the K.S.
Varghese case18
, in our view, the conclusions are well in
consonance with the Thukalan Paula Avira19 and P.M.A.
Metropolitan20 judgments. The detailed discussions and
16
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
17
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
18
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
19
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira AIR 1959 SC
31
20
16
conclusions arrived at in K.S. Varghese case21 settles the disputes
between the appellant Patriarch and the respondents Malankara.
16. As per the consistent view taken in the above judgments,
1934 Constitution is valid and binding upon the Parishioners. The
Parish Church has to be managed as per the powers conferred
under the 1934 Constitution. It is not open to any individual church
to have a parallel system of management in the churches under the
guise of spiritual supremacy in the Patriarch. As per the consistent
findings in the above judgments, the prime jurisdiction with respect
to the temporal, ecclesiastical and spiritual administration of the
Malankara Church is vested with Malankara Metropolitan and other
authorities appointed by Malankara Metropolitan. Malankara
Metropolitan enjoys all the temporal, ecclesiastical and spiritual
administrative powers (Para (145) of K.S. Varghese case22). As
held in K.S. Varghese case23
, “Full effect has to be given to the
finding that the spiritual power of the Patriarch has reached to a
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
21
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
22
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
23
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
17
vanishing point. Consequently, he cannot interfere in the
governance of parish churches by appointing Vicar, priests,
Deacons, Prelates (High Priests), etc. and thereby cannot create a
parallel system of administration. …….”.
17. The present matter relates to the Parish Church-St. Mary’s
Church, Kattachira. The plaint Church was listed as Serial No.41-
among 1064 Parish Churches included in the plaint Schedule in the
representative suit in OS No.4 of 1979. Ext.-A3-Sale-cum-Gift Deed
was executed by C.K. Koshy in favour of Metropolitan of Quilon
Diocese. The recitals in Ext.-A3 make it clear that C.K. Koshy
executed the Sale-cum-Gift Deed in favour of Metropolitan of Quilon
Diocese intending that it may be treated as Bhadrasanam
properties. Ext.-A3 provided that the Metropolitan may directly
administer the said properties or through his representatives. Ext.-
A3 further provided that the Parishioners and the Managing
Committee should abide by the dictates of the Metropolitan from
time to time. The recitals in Ext.-A3 make it clear that St. Mary’s
Orthodox Syrian Church, Kattachira and the properties have been
gifted in favour of first plaintiff-Metropolitan Malankara to be treated
as Bhadrasanam properties subject to the control of the
Metropolitan in appointing Vicar, Priests etc. As per recitals in Ext.-
18
A3, the plaint church and the properties come under the spiritual
and the temporal control of the Malankara Metropolitan.
18. As per the decision of the Supreme Court in the Constitution
Bench in Thukalan Paula Avira24 and P.M.A. Metropolitan25, St.
Mary’s Church is bound by Ext.-A1 Constitution and the control of
the Metropolitan. Having held that the 1934 Constitution is binding
upon the Parish Church and its Parishioners, the Division Bench
was not right in holding that the Metropolitan had no power to
appoint Vicar, Priests etc. The conclusion of the Division Bench that
the Parishioners have the right to make all such appointments and
to manage the affairs of St. Mary’s Church is directly contrary to the
express provisions of the 1934 Constitution and the findings of the
Supreme Court in P.M.A. Metropolitan26. Considering the recitals
in Ext.-A3 and the judgments of the Supreme Court in Thukalan
Paula Avira27 and P.M.A. Metropolitan28, the trial court and the
24
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
25
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
26
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
27
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
28
19
Single Judge rightly held that the St. Mary’s Church is a constituent
of Malankara and the power to appoint Vicar, Priests etc. is vested
with the first plaintiff-Malankara Metropolitan or his representatives.
19. Metropolitan of Quilon Diocese was exercising control over St.
Mary’s Church is also evident from various document adduced in
evidence referred to in detail in the judgment of the trial court as
under:-
“18. …….Ever since the reproachment was made between the patriarch
group and the Catholicose group after the judgment of the Supreme
Court in the above case in 1958, the plaint church has paid dues both to
the Diocesan Metropolitan and the Catholicose in recognition of their
spiritual control over the church. Exts. A4 and A6 would show that the
plaint church was sending its delegates for representing it in the
Malankara Syrian Christian association. The priests are appointed in the
church by the first plaintiff and the church was sending to him the salary
due to the priests regularly. Exts. A14 to A17 and A23 to A32 will bear
this out. Several other dues payable to the Metropolitan and Catholicose
are also seen to have been sent by the plaint church accepting the
spiritual supremacy of the Catholicose and the Metropolitan under him.
Exts. A18 is the printed annual report of the Quilon Bhadrasanam for the
year 1974 showing the contributions made by the Bhadrasanam for the
building of the plaint church. Exts. A7 and A8 are Kalpanas issued by
the first plaintiff appointing priests to the plaint church…..”
20. The above exhibits referred to in the judgment of the trial court
namely appointment of the Priests to the plaint church by the
Metropolitan and the regular payment of salary to the Priests so
appointed and the church sending its delegates for representing it in
the Malankara Church Association and other documents would
amply show that the plaint church has been a constituent of
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
20
Metropolitan Malankara and the churches and its properties come
under the spiritual and temporal control of Catholicos.
21. DW-1 has spoken about the pothuyogam of the plaint church
which has taken the decision that Ext.-A1-1934 Constitution is not
suitable to the church and the sabha and that as per the said
Resolution, the pothuyogam had decided to request the authorities
of the Malankara Church or Sabha to repudiate the 1934
Constitution (Ext.-A1) which was then in force. As rightly observed
by the trial court, once 1934 Constitution (Ext.-A1) had been
adopted by the plaint church and was in force, there can be no
question of requesting the authorities to repudiate it. This is also an
indication to show that the plaint church has accepted the 1934
Constitution and the spiritual authority of the Catholicos. The finding
of the Division Bench that the Metropolitan had no authority to
appoint a Vicar is directly opposed to the provisions of the 1934
Constitution and also recitals in Ext.-A3-Sale-cum-Gift Deed and
number of other documents adduced by the appellants. The finding
of the Division Bench that the Metropolitan had no authority to
appoint Vicar and Priests is directly in contradiction to the
21
Constitution Bench judgment in Thukalan Paula Avira29 and P.M.A.
Metropolitan30
.
22. Contention of the respondent is that the issue regarding the
interpretation of Articles 25 and 26 of the Constitution of India ought
to be determined by a Bench comprising at least five Judges of the
Supreme Court under Article 145 (3) of the Constitution of India is
not tenable. The contention of Patriarch that the Parishioners have
a right of freedom of religion and the question of law regarding
fundamental rights under Articles 25 and 26 of the Constitution of
India had already been raised and elaborately argued by different
senior counsels in K.S. Varghese case31 (vide paras 57.2, 57.2.1,
57.2.2, 57.4, 59.2, 60, 62 etc.). Contention relating to violation of
Articles 25 and 26 of the Constitution of India has been elaborately
considered in K.S. Varghese case32 under sub-heading “In re:
parishioners have a right to follow their faith under Article 25 and
appointment of Vicar, priest and deacons, etc. and manage affairs
29
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
30
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
31
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
32
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
22
under Article 26 of the Constitution of India”. After referring to
various judgments rejecting the contention of the Patriarch of
Antioch as to the violation of the right under Articles 25 and 26 of
the Constitution of India. In para (146) of the judgment, it was held
as under:-
“146. …….. Spiritual power is also with various authorities like
Catholicos, Malankara Metropolitan, etc. Thus it is too far-fetched
an argument that the Patriarch of Antioch or his delegate should
appoint a Vicar or priest. There is no violation of any right of Articles
25 or 26 of the Constitution of India. Neither any of the provisions
relating to appointment of the Vicar can be said to be in violation of
any of the rights under Articles 25 and 26 of the Constitution of
India. The 1934 Constitution cannot be said to be in violation of
Articles 25 and 26 of the Constitution of India. It was suggested that
the faith involved in the present case refers to apostolic succession
from Jesus Christ viz. the blessings and grace of Christ descends
through an apostle i.e. St. Peter or St. Thomas as the case may be,
and from the said apostle to the Pope/Patriarch who appoints a
Vicar. The argument ignores and overlooks other offices that are inbetween
like Catholicos, Malankara Metropolitan, and Diocesan
Metropolitan, etc. It is not necessary for the Pope and the Patriarch
to appoint Vicar because management of a Church is not a
religious ritual.”
We endorse the above view taken in K.S. Varghese case33 that the
1934 Constitution cannot be said to be in violation of Articles 25 and
26 of the Constitution of India.
23. The impugned judgment of the Division Bench is in
contradiction to the judgments of the Supreme Court in Thukalan
33
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
23
Paula Avira34, P.M.A. Metropolitan35 and K.S. Varghese case36
and the same cannot be sustained. In the result, the impugned
judgment is set aside and these appeals are allowed.
.…….…………...………J.
[RANJAN GOGOI]
…………….……………J.
 [R. BANUMATHI]
…………….……………J.
 [NAVIN SINHA]
New Delhi;
August 28, 2018
34
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
35
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
36
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
24

whether the appellant, being the mortgagee, can claim grant of ownership by contending that the right of morgagor has been foreclosed. 4. This issue is squarely covered by a judgment of this Court in Singh Ram (Dead) Thr. Legal Representatives v. Sheo Ram and Others, (2014) 9 SCC 185 where this Court held that “A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage”.

1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s). 8994 of 2018
(Arising out of SLP(C)No.37997 of 2013)
BIR SINGH Appellant(s)
 VERSUS
RAM KANWAR SINGH(D) TH. LRS & ORS. Respondent(s)
J U D G M E N T
BANUMATHI, J.:
1. Leave granted.
2. The appellant claims through the original mortgagee under
the usufructuary mortgage. The appellant-mortgagee filed a
suit claiming ownership of the property in-question by
prescription and also sought for permanent injunction in favour
of the appellant. The trial court decreed the suit and granted
permanent injunction. On appeal, the first appellate court
partly allowed the appeal holding that the appellant, claiming
through the mortgagee, cannot claim right to ownership over the
property in-question. However, the first appellate court
affirmed the permanent injunction in favour of the appellant in
the capacity of the appellant as a mortgagee. The same view
was affirmed by the High Court. However, the High Court
granted liberty to the respondents to work out their remedy for
right to redemption in separate proceedings. While doing so
the High Court affirmed the grant of injunction in favour of
the appellant.
2
3. The short question involved in this appeal is whether the
appellant, being the mortgagee, can claim grant of ownership by
contending that the right of morgagor has been foreclosed.
4. This issue is squarely covered by a judgment of this Court
in Singh Ram (Dead) Thr. Legal Representatives v. Sheo Ram and
Others, (2014) 9 SCC 185 where this Court held that “A
usufructuary mortgagee is not entitled to file a suit for
declaration that he had become an owner merely on the expiry of
30 years from the date of the mortgage”.
5. In view of above, this appeal is dismissed.

..........................J.
 (R. BANUMATHI)
..........................J.
 (VINEET SARAN)
NEW DELHI,
AUGUST 28, 2018.