Karnataka High Court
Basavanna Maruti And vs The Chairman on 6 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.100864/2014 (DEC/INJ)
BETWEEN
SRI BASAVANNA MARUTI AND
SRI DURGADEVI TRUST COMMITTEE, HIREYDACHI
RPTD.BY ITS CHAIRMAN, SRI. MALLESHAPPA KENGAPPA SHIRAGAMBI
AGE: 62 YEARS OCC: AGRICULTURE
R/O HIREGADACHI, HIREYADACHI, TQ: HIREKERUR, DIST: HAVERI
... APPELLANT
(BY SRI.S.G.KADADAKATTI, SRI.LINGESH V.KATTIMANI AND
SRI.V.G.BHAT, ADVS.)
AND
1. THE CHAIRMAN
SRI MARADI DURGADEVI TRUST
KYATANAKERI, TQ: HIREKERUR
RPTD.BY ITS CHAIRMAN,
R/O. KYATANAKERI, TQ: HIREKERUR, DIST: HAVERI
2. BASAPPA S/O BHARAMAPPA DODDAMANI
AGE: 60 YEARS, OCC: AGRICULTURE,
TRUST MEMBER, MARADI DURGADEVI
TRUST KYATANAKERI, TQ: HIREKERUR, DIST: HAVERI
3. NAGAPPA S/O RANGAPPA KENCHIRANNAVAR
AGE: 62 YEARS, OCC: AGRICULTURE, TRUST MEMBER,
MARADI DURGADEVI TRUST KYATANAKERI, TQ: HIREKERUR,
DIST: HAVERI
4. RUDRAPPA S/O HANUMANTAPPA MADIWALAR
AGE: 66 YEARS, OCC: AGRICULTURE, TRUST MEMBER,
MARADI DURGADEVI TRUST KYATANAKERI, TQ: HIREKERUR,
DIST: HAVERI
... RESPONDENTS
2
(BY SRI.SRI.SHUBHENDU A.AKALAWADI ON BEHALF OF
SRI.M.H.PATIL, ADV. FOR R2 TO R4,
R1 SERVED & REMAIN UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC SEEKING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 25.08.2014
PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC,
HIREKERUR IN R.A.NO.13/2014 AND THE JUDGMENT AND DECREE
DATED 21.02.2014 PASSED BY THE COURT OF CIVIL JUGE AND JMFC,
HIREKERUR IN O.S.NO.178/2014 AND DECREE THE SUIT OF
APPELLANT BY ALLOWING THE APPEAL.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the
unsuccessful plaintiff questioning the concurrent findings of
the courts below wherein both the courts below have
declined to give the relief of declaration and consequential
relief of permanent injunction.
2. The appellant claims that Durgadevi temple
trust is registered and it is a Public Trust bearing
Reg.No.A1173. It is the specific case of the appellant that
Basavanna and Maruti temples are situated at Hireyadachi
village and Sri.Durgadevi temple is situated towards
western side of the said Hireyadachi village in Sy.No.110A.
The appellant contends that land bearing Sy.No.110A is
measuring 28 acres 28 guntas and the same is reflected in
the PT sheet issued by the then Charity Commissioner,
Belagavi. The appellant/plaintiff claim that Durgadevi
temple was established in the year 1958-59 by its devotees
and the Gopuram over the said temple was constructed in
the year 1980.
3. The appellant/plaintiff further contended that
defendant Nos.2 to 5 are the members of defendant No.1
trust committee of Kyatanakeri village and therefore, they
have no semblance of right in regard to the trust
committee of Sri. Durgadevi temple. However, the
defendants though not concerned to the temple are illegally
interfering with the activities and also interfering with the
internal affairs of the Durgadevi temple and causing
obstruction. The grievance of the appellant/plaintiff is that,
though objections were filed before the Charity
Commissioner, Belagavi opposing the registration of the
defendant No.1 trust, the objection raised by the
appellant/plaintiff was rejected.
4. The primary objection of the appellant is that
the plaintiff trust was registered way back in the year
1953, whereas defendant No.1 trust is registered in the
year 1994 and while registering defendant No.1 trust,
documents are created and on the basis of the concocted
documents, the defendants are virtually interfering with the
administration and as well as pooja performed by the
plaintiff trust. Therefore, the appellant/plaintiff claim that
cause of action accrued to the plaintiff trust on 18.08.2004
and 20.08.2004 when the defendants interfered with the
activities of the plaintiff trust.
5. In response to the suit summons, defendant
No.1 entered appearance and filed written statement and
stoutly denied the entire averments made in the plaint. The
respondents/defendants contended that the allegation that
Durgadevi temple is situated in Sy.No.110A measuring 28
acres 28 guntas is factually incorrect and it is in fact
situated within the limits of R.S.No.60 and the villagers of
Kyatanakeri village are performing pooja of the said
temple. Accordingly, defendant No.1 trust came to be
registered as Maradi Durgadevi trust of Kyatanakeri before
the Charity Commissioner, Belagavi.
6. Based on the rival contentions, respective
parties lead ocular evidence and produced documentary
evidence to substantiate their claim. The trial court having
appreciated the oral and documentary evidence, while
dealing with issue No.3 has recorded a categorical finding
that right to sue first accrued in favour of the
appellant/plaintiff way back in 1994 and therefore, the
appellant/plaintiff was required to initiate legal action
within the prescribed period of limitation as contemplated
under Article 58 of the Limitation Act. The trial court has
also taken judicial note of filing of bare suit for injunction
by the appellant/plaintiff in O.S.No.449/1994 and also
appeal preferred in M.A.No.14/1994 which was came to be
dismissed on 04.04.1995.
7. The appellant/plaintiff feeling aggrieved,
preferred regular appeal in R.A.No.13/2014. The first
appellate court on reappreciation of oral and documentary
evidence has concurred with the finding of the trial court
and proceeded to dismiss the appeal.
8. Heard the learned counsel for the appellant at
length and learned counsel for the respondents and
perused the judgments under challenge.
9. Though several contentions were canvassed by
the learned counsel for the appellant, the question that
needs to be examined by this court is, as to whether both
the courts below were justified in dismissing the suit on the
ground of limitation.
10. On perusal of the judgments under challenge,
what emerges is that the appellant/plaintiff has filed a bare
suit for injunction and suffered an order at the hands of the
Charity Commissioner wherein the objections raised by the
appellant/plaintiff trust in regard to registration of
defendant No.1 trust was overruled and the Charity
Commissioner approved defendant No.1 trust by order
dated 19.08.1994 vide Ex.P16. Therefore, this court is of
the view that cause of action in favour of the
appellant/plaintiff did accrue immediately after passing of
an order by the Charity Commissioner on 19.08.1994. The
appellant/plaintiff trust instead of pursuing its remedy
against the order of the Charity Commissioner, approached
the competent civil court by filing a bare suit for injunction
in O.S.No.449/1994. From the records, it reveals that
appellant/plaintiff was granted interim injunction and
thereby defendants were restrained by way of an ad-
interim injunction. The said order was questioned in
M.A.No.14/1994. The first appellate court dismissed the
appeal. It is also forthcoming from the records that,
appellant/plaintiff having filed a bare suit for injunction has
not proceeded to prosecute the suit, which came to be
dismissed for non-prosecution.
11. It is also forthcoming from the records that the
Charity Commissioner order was questioned before the
appellate authority who dismissed the appeal and the said
order was questioned before this court in W.P.34675/2002.
However, the appellant/plaintiff withdrew the said writ
petition. The contention of the appellant/plaintiff is that he
withdrew the writ petition with liberty to approach the
competent civil court. However, no documents are placed
on record to demonstrate that leave was granted while
permitting the appellant/plaintiff to withdraw the writ
petition. When these significant details are taken into
consideration, this court would find that the Charity
Commissioner vide order dated 19.08.1994 approving
defendant No.1 trust in respect of Durgadevi temple has
attained finality since the petitioner withdrew the writ
petition filed in W.P.No.34675/2002.
12. The present suit is filed by the appellant/plaintiff
by suppressing all earlier litigations. There is absolutely no
whisper in regard to dismissal of earlier suit filed for bare
injunction in O.S.No.449/1994. There is absolutely no
reference in regard to the said suit. The
respondents/defendants by way of rebuttal evidence have
in fact produced certified copy of the written statement in
O.S.No.449/1994, certified copy of the order passed on
I.A. in O.S.No.449/1994 and certified copy of the judgment
in M.A.No.14/1994. The order sheet is also placed on
record to demonstrate that earlier suit was dismissed for
non-prosecution. If these relevant events are taken into
consideration, then this court is of the view that the
present suit which is filed seeking the relief of declaration
and injunction is not maintainable on two counts. The
appellant/plaintiff had filed bare suit for injunction in
O.S.No.449/1994. Then it was incumbent on the part of
the appellant/plaintiff to seek all possible relief to which he
was entitled. The earlier suit filed for injunction is
simplicitor, presupposes that the present relief of
declaration was waived off. The provisions of Order 2 Rule
2 of CPC are squarely applicable. Therefore, the present
suit is not at all maintainable.
13. Insofar as the suit filed by the appellant/plaintiff
in O.S.No.178/2004 is concerned, both the courts below
have concurrently held that the present suit is barred by
limitation, as cause of action had accrued to the
appellant/plaintiff way back in 1994. As per Article 58 of
the Limitation Act, the appellant/plaintiff is required to
bring in the suit seeking the relief of declaration within
three years, which is not done in the present case and on
the contrary, the present suit is filed in the year 2004. Both
the courts below have held that the suit is barred by
limitation. The concurrent findings of both the courts below
in holding that the suit is barred by limitation is in
accordance with law. I do not find any substantial question
of law that would arise in the present case on hand.
14. The appeal is devoid of any merits is
accordingly, dismissed.
15. In view of dismissal of the appeal,
I.A.No.2/2014 filed for temporary injunction does not
survive for consideration and the same is dismissed.
Sd/-
JUDGE
MBS/-
