Karnataka High Court
Vivekananda Vidya Kendra Trust vs Sri Anjaneya Swamy Devalaya Samithi on 31 July, 2024
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NC: 2024:KHC:30334
RSA No. 929 of 2017
C/W RSA No. 930 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.929 OF 2017
C/W
REGULAR SECOND APPEAL NO.930 OF 2017 (POS)
IN R.S.A. NO.929 OF 2017
BETWEEN:
VIVEKANANDA VIDYA KENDRA TRUST ®
SOMWARPET, KODAGU DISTRICT
REPRESENTED BY ITS
MANAGING TRUSTEE,
DR. B.K. VASANTHA
S/O. LATE B.K. KENCHAPPA SHETTY,
AGED ABOUT 69 YEARS,
R/AT SOMWARPET TOWN,
KODAGU DISTRICT-571 236. ... APPELLANT
Digitally signed by (BY SRI PUNDIKAI ISHWARA BHAT, ADVOCATE)
MAHALAKSHMI B M
Location: HIGH AND:
COURT OF
KARNATAKA
SRI ANJANEYA SWAMY DEVALAYA SAMITHI ®
CHOWDLU VILLAGE, SOMWARPET TOWN,
KODAGU DISTRCT-571 236
REPRESENTED BY ITS
PRESIDENT/SECRETARY. ... RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 27.01.2017
PASSED IN R.A.NO.40/2011 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE, KODAGU, MADIKERI, PARTLY
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NC: 2024:KHC:30334
RSA No. 929 of 2017
C/W RSA No. 930 of 2017
ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT
AND DECREE DATED 26.02.2011 PASSED IN O.S.NO.150/2000
ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI.
IN R.S.A. NO.930 OF 2017
BETWEEN:
VIVEKANANDA VIDYA KENDRA TRUST ®
SOMWARPET, KODAGU DISTRICT
REPRESENTED BY ITS
MANAGING TRUSTEE,
DR. B.K. VASANTHA,
S/O. LATE B.K. KENCHAPPA SHETTY,
AGED ABOUT 69 YEARS,
R/AT SOMWARPET TOWN,
KODAGU DISTRICT-571 236. ... APPELLANT
(BY SRI PUNDIKAI ISHWARA BHAT, ADVOCATE)
AND:
SRI ANJANEYA SWAMY DEVALAYA SAMITHI ®
CHOWDLU VILLAGE, SOMWARPET TOWN,
KODAGU DISTTRICT-571 236
REPSRESENTED BY ITS
PRESIDENT/SECRETARY. ... RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 27.01.2017
PASSED IN R.A.NO.41/2011 ON THE FILE OF THE I ADDL.
DISTRICT JUDGE, KODAGU, MADIKERI, PARTLY ALLOWING
THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE
DATED 26.02.2011 PASSED IN O.S.NO.150/2000 ON THE FILE
OF THE SENIOR CIVIL JUDGE, MADIKERI.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:30334
RSA No. 929 of 2017
C/W RSA No. 930 of 2017
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
These two regular second appeals are preferred by the plaintiff against the rejection of prayer for relief of declaration that the writing dated 26.11.2000 is not binding on the plaintiff, findings recorded on issue No.4 and decreetal of counter claim of the defendant declaring that the Deity Sri Anjaneya Swamy Devaru of Chowdlu Village is the absolute owner.
2. Parties herein are referred to as per the ranking before the Trial Court for the sake of convenience.
3. Suit for declaration :
i. to declare that the writing dated 26.11.2000 is not binding on the plaintiff ii. Further declaration that the plaintiff is entitled to possess and enjoy the suit schedule lands peacefully without being liable to be dispossessed except in due process of law.-4-
NC: 2024:KHC:30334 RSA No. 929 of 2017 C/W RSA No. 930 of 2017 iii. For relief of permanent injunction to restrain the defendant their men, agents, or anybody claiming under them from interfering with the plaint schedule lands and such other costs.
4. The plaintiff contended that the plaintiff is a trust registered under the Indian Trust Act and the defendant is a society registered under the Societies Registration Act, and the defendant is the owner of the suit schedule properties. On request of the plaintiff, the defendant had leased the lands to the plaintiff on ground rent and the rent has been increased every year and it is the contention of the plaintiff that they have put up school building on 'A' schedule and are running a school. Further, this being the state of affairs on 26.11.2000, at about 10.00 a.m. the defendant's men led by D.D. Jayaram came to the suit schedule property and put barbed wire fence across road, inside the main gate so as to obstruct movement of vehicles and though the complaint was filed by the plaintiff, no action was taken and the police asked -5- NC: 2024:KHC:30334 RSA No. 929 of 2017 C/W RSA No. 930 of 2017 the trustees of the plaintiff to come to the police station and under the pressure of the police, the plaintiff-trust signed the document prepared therein at the police station on 26.11.2000 and obtained the same by coercion.
5. On notice, the defendant resisted the suit and filed written statement and made counter claim that the suit properties are the absolute properties of Deity Shri Anjaneya Swamy of Chowdlu Village and sought for relief of eviction of plaintiff from item Nos.3 and 4 of the schedule properties mentioned in written statement, permanent prohibitory injunction against the plaintiff and mesne profits.
6. The Trial Court, on basis of the pleadings, framed the following issues:
"1. Whether the plaintiff proves that, as per the request of the plaintiff-trust, the defendant let out the plaint schedule lands on a ground rent of Rs.2,000/- per year and rent was increased to Rs.5,000/- per year some time later and the plaintiff has been paying the ground rent promptly and regularly?-6-
NC: 2024:KHC:30334 RSA No. 929 of 2017 C/W RSA No. 930 of 2017
2. Whether the plaintiff proves that, the plaintiff has put up a school buildings on the plaint 'A' schedule land and entire area is covered by barbed wire fence, compound wall and iron gate at the entrance?
3. Whether the plaintiff proves that, on 26-11- 2000 at about 10.00 a.m., the defendant's men led by the said D.C. Jayaram came to the plaint schedule lands and put up a barbed wire fence across the road inside the main gate of the plaint schedule lands so as to obstruct the movement of vehicles coming to the school and preventing the use of the play ground by the children?
4. Whether the plaintiff proves that, the writing dated 26-11-2000 as mentioned in para-9 of the plaint is not binding on the plaintiff?
5. Whether the plaintiff proves that, the plaintiff is entitled to possess and enjoy the plaint schedule lands?
6. Whether the defendant proves that, the written statement schedule properties are the absolute properties of the Deity of Sri Anjaneya Swamy of Chowdlu village?-7-
NC: 2024:KHC:30334 RSA No. 929 of 2017 C/W RSA No. 930 of 2017
7. Whether the defendant proves that, only an area of 50 cents out of item Nos.3 and 4 of plaint schedule properties were allowed to be used by the trustees of the plaintiff?
8. Whether the defendant proves that, taking advantage of the ad-interim exparte temporary injunction issued by this Court, the plaintiff has trespassed over the remaining area of item No.3 and 4 of the suit schedule properties by removing the barbed wire fence and tried to level the earth by using bulldozer?
9. Whether the defendant is entitled for the relief of possession of item No.3 and 4 of counter-claim schedule property?
10. Whether the defendant proves that the plaintiffs have illegally cut and fell the valuable trees in the written statement schedule property of deity and transported the same?
11. Whether the plaintiff is liable to render accounts in respect of the valuable timber and trees alleged to have been destroyed or appropriated by the plaintiff from the written statement schedule property?
12. Whether the plaintiff is liable to render proper and correct accounts in respect of the income from the institution and school run on the suit schedule -8- NC: 2024:KHC:30334 RSA No. 929 of 2017 C/W RSA No. 930 of 2017 properties and the written statement schedule properties and to pay the same to the defendant on behalf of Deity Sri Anjaneya Swamy of Chowdlu village from the date of the counter claim to the date of delivery of possession?
13. Whether the defendant is entitled to mesne profits from the plaintiff for use and occupation of the written statement schedule property Item No.3 and 4 and the buildings situated thereon?
14. Whether the plaintiff is entitled for the reliefs as prayed for?
15. What Order or decree?"
(underline emphasis supplied)
7. The Trial Court, by the judgment and decree, dismissed the suit of the plaintiff and answered issue No.4 in the negative, counter claim filed by the defendant was allowed declaring that the Deity Sri Anjaneya Swamy of Chowdlu Village is the absolute owner of the suit schedule properties and the defendant are entitled for eviction of plaintiff-trust from item Nos.1 to 4 of the written statement schedule properties and they are entitled for -9- NC: 2024:KHC:30334 RSA No. 929 of 2017 C/W RSA No. 930 of 2017 mesne profits from the date of decree till the date of delivery.
8. Aggrieved by the dismissal of the suit and allowing of counter claim, the plaintiff preferred R.A.Nos.40/2011 and 41/2011 before the First Appellate Court. The First Appellate Court, while re-appreciating the entire oral and documentary evidence, reversed the judgment and decree of the Trial Court and held that the plaintiff is entitled to possess and enjoy the suit schedule properties without being dispossessed, except then by due process of law and the defendant is at liberty to evict the plaintiff from the suit schedule properties, by following the due process of law, the declaration that the writing dated 26.11.2000 is not binding on the plaintiff, was dismissed. The counter claim filed by the defendant was partly allowed and held that the Deity of Sri Anjaneya Swamy Devaru of Chowdlu Village was declared as absolute owner as per the written statement schedule properties. Aggrieved, the plaintiff is before this Court.
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NC: 2024:KHC:30334 RSA No. 929 of 2017 C/W RSA No. 930 of 2017
9. Heard Sri Pundikai Ishwara Bhat, learned counsel for the appellant. Though the respondent was served with notice, they have chosen to remain absent.
10. Learned counsel for the appellant submits that the appellant is aggrieved by answering issue No.4 against the plaintiff and the Trial Court and the First Appellate Court have not considered the fact that under what circumstances, the writing was obtained by the police and it has to be held that the writing date 26.11.2000 is not binding on the plaintiff.
11. This Court has carefully considered the submission made by the learned counsel for the appellant and perused the material on record.
12. Issue No.4 came to be framed by the Trial Court based on the pleadings, which reads as under:
"4. Whether the plaintiff proves that, the writing dated 26-11-2000 as mentioned in para-9 of the plaint is not binding on the plaintiff?"
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NC: 2024:KHC:30334 RSA No. 929 of 2017 C/W RSA No. 930 of 2017
13. The Trial Court, while answering issue No.4, held that neither the plaintiff-trust nor the defendant- Samithi have produced the said document before the Court admittedly. The writing taken place before the police in the police station. The Trial Court answered issue No.4 in the negative and had dismissed the suit of the plaintiff. The First Appellate Court holds that the alleged writing / letter is not produced before the Trial Court and refrains from giving any finding on issue No.4. the First Appellate Court has granted relief to the plaintiff holding that the plaintiff is entitled to possess and enjoy the suit property, without being dispossessed, except then due process of law and any statements made to the police in the course of investigation are not having any evidentiary value. Evidence is what relevant facts the witness states before the Court on oath. Both the courts have answered issue No.4 against the plaintiff which does not warrant any interference by this Court. The plaintiff does not dispute about the ownership and title of the defendant and thus, the allowing of counter claim by the Courts below does not
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NC: 2024:KHC:30334 RSA No. 929 of 2017 C/W RSA No. 930 of 2017 warrant any interference. There counter claim finding is held that the plaintiff is not entitled for the said declaration. The findings recorded by the Trial Court and the First Appellate Court does not warrant any interference by this Court and no substantial question of law would arises for consideration to be dealt with under Section 100 CPC. Accordingly, this Court pass the following:
ORDER i. The regular second appeals are hereby dismissed.
ii. Impugned judgment and decree of the Courts below stand confirmed.
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(K.S. HEMALEKHA) JUDGE MBM List No.: 1 Sl No.: 10