Karnataka High Court
Suresh @ Suryakant Krishna Patil vs Kalbhairavnath Dev Temple on 6 December, 2023
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RSA No. 100281 of 2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.100281 OF 2014 (DEC)
BETWEEN:
SRI. SURESH @ SURYAKANT KRISHNA PATIL,
AGE ABOUT 42 YEARS,
R/AT: GANESHPETH, ZUNNE,
BELAGAVI-590002.
...APPELLANT
(BY SRI MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
1. SRI. KALBHAIRAVNATH DEV TEMPLE,
A PUBLIC TRUST, NATH PAI CIRCLE,
SHAHAPUR, BELAGAVI-590003
REPRESENTED BY ITS TRUSTEES.
2. SRI. GURUNATH R.RAWAL (PRESIDENT),
AGED 64 YEARS,
R/AT: CHAWADI GALLI,
Digitally signed
by VISHAL BELAGAVI-590003.
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date: 3. SRI. VIJAY V.NAIK, (VICE PRESIDENT)
2023.12.11
11:46:02 +0530 AGED 54 YEARS,
R/AT: TEGGIN GALLI,
VADAGAON, BELAGAVI-590001.
4. SRI. MAHADEV A.RAWAL (SECRETARY),
AGED ABOUT 76 YEARS,
R/AT: 1481, GANESHPUR GALLI,
SHAHAPUR, BELAGAVI-590003.
5. SRI. KALLAPPA B.RAWAL (VICE SECRETARY),
AGE: 64 YEARS,
R/AT: RAYAT GALLI,
VADAGAON, BELAGAVI-590003.
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RSA No. 100281 of 2014
6. SRI. VISHWANATH K.NAIK (TREASURER),
AGED ABOUT 44 YEARS,
R/AT: HATTIHOLLI GALLI,
SHAHAPUR, BELAGAVI-590003.
7. SRI. SURESH N.NAIK (VICE TREASURER),
AGED ABOUT 44 YEARS,
R/AT: HATTIHOLLI GALLI,
SHAHAPUR, BELAGAVI-590003.
8. SRI. VITHAL B.RAWAL (MEMBER),
AGED ABOUT 39 YEARS,
R/AT: HATTIHOLLI GALLI,
SHAHAPUR, BELAGAVI-590003.
9. SRI. PARASHURAM B.CHAWAN (MEMBER),
AGED ABOUT 64 YEARS,
R/AT: HATTIHOLLI GALLI,
SHAHAPUR, BELAGAVI-590003.
10. SRI. ASHOK N.CHAWAN (MEMBER),
AGED ABOUT 54 YEARS, OCC: MECHANIC,
R/AT: ADARSHNAGAR,
BELAGAVI-590003.
11. SRI. ASHOK A.RAWAL (MEMBER),
AGED ABOUT 54 YEARS, OCC: PVT. SERVICE,
VADAGAON, BELAGAVI-590003.
12. SRI. ARVIND S.RAWAL,
AGED ABOUT 57 YEARS, OCC: M.R.
R/AT: SHAHPUR, BELAGAVI-590003.
...RESPONDENTS
(BY SRI SMT.RAJESHWARI S.HEREKAR, ADV. FOR CAVEATOR/R1 & R2;
NOTICE TO R3 TO R12 IS SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGEMENT &
DECREE DATED 19.02.2014 PASSED IN R.A.NO.161/2012 ON THE FILE
OF THE I ADDL. SENIOR CIVIL JUDGE, BELAGAVI DISMISSING THE
APPEAL, FILED AGAINST THE JUDGMENT AND DECREE DATED
23.08.2012 AND THE DECREE PASSED IN O.S. NO.257/2009 ON THE
FILE OF THE II ADDL. CIVIL JUDGE AND JMFC., BELAGAVI, DECREEING
THE SUIT FILED FOR DECLARATION AND POSSESSION.
THIS REGULAR SECOND APPEAL, COMING ON FOR ADMISSION,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100281 of 2014
JUDGMENT
The present second appeal by the defendant assailing
the concurrent findings of the Courts below, whereby, the
suit seeking for declaration and possession was decreed
declaring that the lease deed executed by Yamaji Digambar
Rawal and his legal heirs in favour of defendant is null and
void and not binding on the plaintiffs and directed the
defendant to vacate and handover the vacant possession of
the suit schedule property within three months from the date
of order of the Courts below.
2. The parties herein are referred to as per their
ranking before the Trial Court for the sake of convenience.
3. Suit for declaration that the lease deed dated
27.06.1968 executed by the deceased Yamaji Digambar
Rawal followed by the lease deed dated 26.02.1995 executed
by the legal heirs of deceased Yamaji Digambar Rawal in
favour of defendant is a void ab-initio and the same is null
and void and not binding on the plaintiff and for possession
of the suit schedule property.
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4. Plaint avers that plaintiff No.1 is the trust by
name Sri Kalbairavanath Dev Temple and plaintiff Nos.2 to
12 are the trustees and plaintiff-trust is registered under the
provisions of Karnataka Societies Registration Act, 1960, the
suit property is comprised in CTS No.167 and belongs to the
plaintiff-trust. It is stated that the property was gifted by the
legal heirs of Sri Harbhat Patvardhan of Kotewad and the
name of plaintiff No.1 was appearing from 1950 and CTS
No.167 had 6 to 7 shops and the same came to be
demolished due to the road widening. There are two
premises in the suit schedule property out of which one is in
the possession of defendant. It is stated that one Yamaji
Digambar Rawal got his name mutated in the records and
executed the lease deed without any authority to the
defendant. After the death of Sri Yamaji Digambar Rawal his
legal heirs have executed lease deed on 26.02.1995 to the
defendant. It is further contended that the plaintiffs' trust
decided to construct a Kalyana Mantapa and room for the
devotees by utilizing the suit property and obtained building
permission on 17.01.1998 and the plaintiffs got issued legal
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notice for vacating the premises after obtaining the
necessary permission from the Charity Commissioner. Hence
the suit seeking for declaration and possession.
5. Pursuant to the suit summons issued by the Trial
Court, defendant appeared and filed his written statement
inter-alia contending that the suit is not maintainable as the
description of the suit property is not proper and the legal
representatives of deceased Yamaji Digambar Rawal were
not arrayed as party to the proceedings. It is further
contended that the grandfather of the defendant one
Parashuram Shattuppa Shinolkar was in possession of the
suit schedule property as a tenant under the owner and
landlord Sri Yamaji Digambar Rawal and a registered lease
deed dated 27.06.1968 for a period of 20 years and after the
expiry of 20 years, on demise of the grandfather of the
defendant, the defendant is in possession and enjoyment of
the suit property along with his father. It is contended that
the legal representatives of Yamaji Digambar Rawal have
leased out the open space to the defendant by executing a
permanent lease in respect of the suit property for a monthly
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rent of Rs.150/- under an agreement dated 26.02.1995 and
thereafter the defendant has constructed a shop by spending
huge amount. It is further contended that the plaintiffs have
no right over the suit property and suit for possession
without seeking declaration is not maintainable and hence
sought for dismissal of the suit.
6. The Trial Court on basis of the pleadings framed
the following issues.
"1. Whether the plaintiffs prove that they are
trustees in the PTR in Inq.No.58/1995 as per
order passed by Asst.Charity Commissioner,
Belgaum, and plaintiff NO.1 is the public Trust?
2. Whether the plaintiffs prove lease deed
executed by one Yamaji Digambar Rawal on
27.6.1968 followed by the lease Deed Dt:
26.2.1995 executed by the legal heirs of
deceased Yamaji Raval in favour of defendant
is void ab-initio and the same is not binding on
the plaintiffs?
3 Whether the defendant proves that suit is bad
for non-joinder of necessary party?
4. Whether this court has no jurisdiction to try
this suit?
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5. What order of decree?
7. In order to substantiate their claim plaintiff No.2
got himself examined as PW.1 and got documents at Exs.P.1
to P.19(a). On the other defendant No.1 got himself
examined as DW.1 and one witness as DW.2 and got marked
documents at Exs.D.1 to D.11.
8. The Trial Court on basis of the pleadings, oral and
documentary evidence on record arrived at a conclusion
that;
(i) The plaintiffs proved that they are the
trustees in PTR in Inq.No.58/1995 as per the
order passed by the Assistant Charity
Commissioner, Belagavi and plaintiff No.1 is a
public trust.
(ii) The plaintiffs proved that lease deed executed
by one Yamaji Digambar Rawal on
27.06.1968 followed by lease deed dated
26.02.1995 executed by the legal heirs of
Yamaji Digambar Rawal in favour of the
defendant is void and not binding on the
plaintiff and by judgment and decree the Trial
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Court decreed the suit of the plaintiff and
directed the defendant to hand over the
vacant possession of the suit schedule
property.
9. Feeling aggrieved defendant preferred appeal
before the First Appellate Court. The First Appellate Court
while re-appreciating and reconsidering the entire oral and
documentary evidence independently has arrived at a
conclusion that the plaintiff is entitled for declaration and
possession as sought for directing the defendant to hand
over the possession and concurred with the judgment and
decree of the Trial Court.
10. Feeling aggrieved the present second appeal by
the defendant.
11. Heard Sri Mruthyunjaya Tata Bangi learned
counsel appearing for the appellant and Sri Rajeshwari
S.Herekar learned counsel appearing for respondent Nos.1
and 2 and perused the judgment and decree of the Courts
below.
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12. Exs.P.1 and 2 are the CTS extracts of the
property. Ex.P.3 is the certificate of registration of the trust.
Ex.P.5 is the form of application for registration of the public
trust which was numbered as Inq.No.298/52. Ex.P.8 is the
order of the Charity Commissioner passed on 04.09.1952.
The material placed by the plaintiff was that plaintiff No.1 is
a trust by name Sri Kalbhairavanath Dev Temple and plaintiff
Nos.2 to 12 are the trustees of the management trust and its
properties i.e., CTS No.167 belongs to the plaintiffs. The
materials placed by the plaintiffs more particularly at Exs.P.1
to P.18 are the documents which evidence that plaintiff
No.1-trust is the owner of the suit schedule property. The
defendants has set up a defence that name of Yamaji
Digambar Rawal was found in the CTS records and as such
he was the owner of the property and accordingly registered
lease deed dated 27.06.1968 was executed by Yamaji
Digambar Rawal as per Ex.P.19 in favour of the grandfather
of defendant.
13. The Trial Court and the First Appellate Court
arrived at a conclusion that Ex.P.19 which is the registered
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lease deed reveals that the First Party is Sri Kalbhairavanath
Dev Temple represented by its occupants Sri Yamaji
Digambar Rawal and the Second Party is shown as
Parashuram Shattuppa Shinolkar, who is the grandfather of
defendant. The Trial Court and the First Appellate Court held
that Sri Yamaji Digambar Rawal cannot have any individual
right or interest over the suit property and what was claimed
by himself is that he is the vahiwatdhar of Sri
Kalbhairavanath Dev Temple i.e., the occupant of the said
First Party. The Courts below held that merely because a
name of Sri Yamaji Digambar Rawal is found in the revenue
record it could not create that he had exclusive right or title
over the said property and further that the lease deed
executed by Sri Yamaji Digambar Rawal and his legal heirs
subsequently would not bind the plaintiff trust to the said
aspect and accordingly declared that the lease deed to be
null and void and not binding on the plaintiffs.
14. The capacity of defendant on the basis of lease
deed executed by Sri Yamaji Digambar Rawal without there
being any independent right of ownership over the property
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was not sustainable in law, the reasons assigned by the
Courts below to decree the suit of the plaintiff for declaration
and possession is justifiable.
15. The manner in which, the Courts below have
assessed the entire oral and documentary evidence, this
Court is of the considered view that the concurrent findings
of facts of the Courts below does not warrant any
interference by this Court to be dealt with under Section 100
CPC. Accordingly, this Court pass the following;
ORDER
(i) The regular second appeal is hereby
dismissed.
(ii) The judgment and decree of the Courts
below stands confirmed.
Sd/-
JUDGE
EM, CT: UMD :
