Smt Mayamma vs Sri Jayakumaregowda
2022 Latest Caselaw 5638 Kant

                          1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 29TH DAY OF MARCH, 2022

                       BEFORE

          THE HON'BLE MR. JUSTICE R. NATARAJ

     REGULAR SECOND APPEAL NO.1981 OF 2021 (INJ)


BETWEEN:

SMT MAYAMMA
AGED ABOUT 77 YEARS
W/O LATE NAGEGOWDA
R/A GANIGERI BEEDI
BANNUR TOWN
T NARASIPURA TALUK
MYSORE DISTRICT-5711224.
                                        ... APPELLANT
(BY SMT ARCHITHA SURESH, ADVOCATE
   FOR SRI K V NARASIMHAN, ADVOCATE)

AND:

1.     SRI JAYAKUMAREGOWDA
       AGED ABOUT 61 YEARS
       S/O PUTTASWAMYGOWDA

2.     SRI PARTHASARATHI
       AGED ABOUT 65 YEARS
       S/O LATE CHANNEGOWDA

       BOTH ARE R/AT TERINA BEEDI
       BANNUR TOWN
       T NARASIPURA TALUK
       MYSORE DISTRICT-5711224.
                                    ...RESPONDENTS
(BY SRI. BHARGAV G, ADVOCATE FOR C/R1)
                                  2




     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 09.09.2021 PASSED IN RA NO.17/2019
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, T
NARASIPURA DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 19.10.2019 PASSED
IN OS NO.09/2010 ON THE FILE OF THE CIVIL JUDGE AND
JMFC, T NARASIPURA.

     THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                     JUDGMENT

This appeal is filed by the unsuccessful plaintiff

challenging the concurrent finding of the fact that the

plaintiff has no locus standi to sue defendants and

therefore is not entitled for any injunctory relief against

the defendants.

2. The suit filed in O.S.No.9/2010 was for

perpetual injunction restraining the defendants from

interfering with the possession of the properties of the

plaintiff. It is claimed that the suit properties belonged to

one Mayappa, who gifted it in favour of Sri Anantha

Krishnananda Mutt of Bannur. Sri Hariharananda Bharathi

Swamy of Bengaluru held control over the Mutt and he had

constituted a trust in terms of a deed dated 05.06.1950.

This Trust comprised of 12 members, who were required to

carry on spiritual activities and to maintain suit properties.

It is claimed that one Chikkathammaiah was one of the

trustees and he was entrusted with the suit properties to

conduct agricultural activities and his name was entered in

the RTC but the khatha was in the name of one of the

trustees by name Sri Patel Siddegowda. After the death of

Chikkathammaiah, his son Ramegowda continued in

possession of the suit properties on behalf of the Trust.

After the death of Ramegowda, his son-in-law Nagegowda

was conducting agricultural operation and was performing

pooja at Mutt. After the death of Nagegowda, the plaintiff

was in possession of the suit properties. She claimed that

the defendants were attempting to interfere with the

possession of the suit properties. Therefore, she filed a suit

for perpetual injunction.

3. The defendants contested the suit and denied

the claim of the plaintiff. They disputed the gift of the suit

properties to Anantha Krishnananda Mutt. However, they

admitted the constitution of the Trust. They admitted that

it was the trust which was managing the suit properties

and discharging spiritual duties for the welfare of the

society. They denied that Chikkathammaiah was entrusted

to conduct agricultural activities in the suit properties.

They denied that after the death of Chikkathammaiah, his

son Ramegowda and later Nagegowda and then the

plaintiff were cultivating the suit properties. They claimed

that Krishnananda Swamiji Mutt was established by Sri

Ananth Krishnananda Pramahamsa Swamiji. At that time,

the grandfather of defendant No.2(Narayangowda) and

father of defendant No.1(D M Mayigowda) had purchased

an extent of 32 guntas in survey No.9, 18 guntas in survey

No.8/2 in terms of a sale deed dated 10.04.1930 and

05.10.1928 in the name of Sri Krishnananda Swamiji Mutt.

Likewise, 9 guntas in survey No.1983 belonged to the

Mutt. After the death of Anantha Krishnananda Swamiji, a

trust was constituted on 05.06.1950. They claimed that

their ancestors continued in possession and enjoyment of

the suit properties to further the cause of general public.

They claimed that the plaintiff has no right whatsoever to

file a suit in respect of a trust property.

4. Based on the rival contentions urged by the

parties, the trial Court framed the following issues:

"1. Whether the plaintiff proves that she is in peaceful possession and enjoyment of the suit schedule property as on the date of suit?

2. Whether the plaintiff proves the alleged interference by the defendants?

3. Whether the plaintiff is entitled for the releifs as sought for?

4. What order or decree?

Additional Issue No.1.

1. Whether the suit is not maintainable by not following the procedure under Section 92 of the Code of Civil Procedure?"

5. The trial Court recorded the evidence of the

parties. Based on the oral and documentary evidence, the

trial Court held that suit properties belonged to public

Trust and therefore the general public were beneficiaries

and therefore, it is held that suit was not maintainable in

view of Section 92 of Code of Civil Procedure. Hence,

dismissed the suit.

6. Being aggrieved by the aforesaid judgment and

decree, the plaintiff filed R.A.No.17/2019. The first

appellate Court confirmed the findings of the trial Court

and dismissed the appeal. Being aggrieved by the same,

the present second appeal is filed before this Court.

7. The learned counsel for the appellant/plaintiff

submitted that Section 92 of CPC does not bar a suit for

perpetual injunction. Learned counsel contended that the

plaintiff was in possession of the suit properties on behalf

of the Trust and therefore, she was entitled to protect her

possession against the defendants, who were not the

incumbent trustees of the Trust.

8. If the plaintiff claimed under the Trust, she

could not file a suit for perpetual injunction and it was the

Trust alone through its trustees who could file the suit. The

trial Court and the first appellate Court have rightly held

that the suit was clearly barred under Section 92 of CPC.

In that view of the matter, this Court does not find any

error in appreciation of the evidence and application of law

to the facts and circumstances of this case. The appeal

lacks merits and the same is dismissed.

9. However, it is open for the Trust to take

appropriate steps to protect its possession in accordance

with law.

Sd/-

JUDGE

nms