Sri Venkataramana Devara Temple vs Dakshina Kannada Zilla
2023 Latest Caselaw 9780 Kant

Karnataka High Court

Sri Venkataramana Devara Temple vs Dakshina Kannada Zilla on 8 December, 2023

                                   RSA No.1253/2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 8TH DAY OF DECEMBER 2023

                      BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

REGULAR SECOND APPEAL NO.1253 OF 2015 (INJ)

BETWEEN:

     SRI VENKATARAMANA DEVARA TEMPLE
     REPRESENTED BY ITS MANAGING TRUSTEES

1.   M PADMANABHA PAI,
     S/O LATE M S PAI,
     AGED ABOUT 60 YEARS,

2.   ADIGE BALAKRISHNA SHENOY
     S/O LATE A. DAMODAR SHENOY,
     AGED ABOUT 54 YEARS,

3.   K. JAYARAJ PAI
     S/O LATE K. VISHWANATH PAI,
     AGED ABOUT 58 YEARS

     ALL ARE R/AT
     SRI VENKATARAMANA DEVARA TEMPLE
     CAR STREET,
     MANGALORE 575001
                                    ...APPELLANTS
(BY SRI. ANANDARAMA K, ADVOCATE)
                                         RSA No.1253/2015

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AND:

DAKSHINA KANNADA ZILLA
MADIVALARA SANGHA,
REPRESENTED BY ITS SECRETARY,
HAVING ITS REGISTERED OFFICE AT
NARAYANA ELECTRICALS,
OPP.CLOCK TOWER,
MANGALORE 575001
                                        ...RESPONDENT
(BY SRI. B. MANJUNATH, ADVOCATE)

     THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908
AGAINST THE JUDGEMENT AND DECREE DATED
27.03.2015 PASSED IN R.A. NO.114/2000 ON THE FILE OF
THE III ADDL. SENIOR CIVIL JUDGE, MAGALORE, D.K.,
ALLOWING THE APPEAL AND SETTING ASIDE THE THE
ORDER DATED 30.06.2000 PASSED IN O.S. NO.1101/1993
ON THE FILE OF THE IV ADDL. CIVIL JUDGE (JR.DN.)
MANGALORE, D.K.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 21.09.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                     JUDGMENT

This second appeal is filed by the appellants

challenging the judgment and decree dated

27.03.2015 passed in R.A.No.114/2000 by the III

Additional Senior Civil Judge, Mangalore, DK.

2. For the sake of convenience, parties are

referred to as per their ranking before the trial Court.

The appellants are the plaintiffs and respondent is the

defendant in O.S.No.1101/1993.

3. The brief facts leading rise to filing of this

appeal are as under:

The plaintiffs filed two suits i.e.,

O.S.No.860/1993 against the State of Karnataka and

the Corporation of the City of Mangalore for the relief

of permanent injunction and O.S.No.1101/1993

against the present respondent. It is the case of the

plaintiffs that the properties of the temple is situated

at Karangalpady of Kodialbail Village, Mangalore City,

comprising 7 cents in T.S.Nos.145 and 146. The suit

properties contained a small tank and a big tank and

they were used for raising paddy crop. After deity was

taken in a procession on a palanquin to the schedule

property, the members of the Gowda Saraswath

Brahmin Community were offering arathi to the deity.

The temple has been in possession of the land in

question since 1864. There has been number of

correspondence between the Revenue officials and

Commissioner, Mangalore Municipality that the suit

property belongs to the temple. Based on a mistaken

entry that the land is a poramboke land, a sanction

was made by the Government to place the lands for

locating Dhobikhana, though it was never used as

Dhobhi Ghat. When the Madiwalara Sangha

highhandedly tried to tresspass on the land, the

present suit was filed in O.S.No.1101/1993 for a

decree of permanent injunction. Further, the plaintiffs

have also filed a suit in O.S.No.860/1993 against the

State and Corporation of the City of Mangalore.

4. Defendant filed written statement contending

that the suit filed by the plaintiffs is false and

frivolous. The plaintiffs being a temple should not

have resorted to file a suit on false and untenable

contentions. The plaintiffs' attempt is to deprive the

legitimate right of the members of the defendant

Sangha to locate the "Dhobikhana", for which the

members of defendant - Sangha have been fighting. It

is contended that in the suit schedule properties there

is one big tank and another small tank and according

to the members of Madivala Community who are the

members of defendant - Sangha, the defendant's

community were using those tanks for washing cloths

since ancient times. The Trustees of the temple are

fully aware of this fact. It is contended that the

plaintiffs own and enjoy landed property comprised in

Sy.No.144 of Kodialbail Village which is adjacent to

the suit property. It is contended that the plaintiffs are

not in possession of land bearing Sy.No.145. It is

denied that entry relating to T.S.Nos.145 and 146 are

poramboke lands in the revenue records. It is

contended that Trustee of the plaintiff - Temple have

played a mischief with the officials of the Municipality

to change the reservation for order to be made insofar

as T.S.Nos.145 and 146 and prayed to dismiss the

suit.

5. The Trial Court, on the basis of the above

said pleadings, framed the following issues:

In O.S.No.860/1993:

1. Whether the plaintiff proves lawful possession and enjoyment of suit property?

2. Whether the plaintiff proves any interference by defendant in the suit property?

3. Whether defendant proves Court had no pecuniary jurisdiction to try the suit?

4. Whether defendant proves suit is not maintainable under the provisions of law?

5. Whether defendant proves suit is bad for mis-joinder of party?

6. Whether the plaintiff is entitle for injunction as sought?

7. What decree or order?

In O.S.No.1101/1993:

1. Whether the plaintiff proves that it is the owner and is in actual present possession of the suit schedule property on the date of the suit as alleged in the plaint?

2. Whether the plaintiff proven any interference as alleged in para 6 of the plaint?

3. What decree or order?

6. In order to prove the case of the plaintiffs,

P.K.Ravindra Pai was examined as PW-1 and got

marked 44 documents as Exs.P1 to P44. In support of

defence of the defendant, three witnesses are

examined as DW.1 to DW.3 and got marked 20

documents as Exs.D1 to D20. The trial Court after

considering the oral and documentary evidence of the

parties, answered issue Nos.1, 2 and 6 in affirmative

and issue Nos.3 to 5 in negative in O.S.No.860/1993

and issue Nos.1 and 2 in affirmative in

O.S.No.1101/1993 and consequently, decreed the

suits of the plaintiffs and a decree for permanent

injunction restraining the defendants from interfering

with or disturbing the possession of the suit schedule

properties and committing trespass into the suit

schedule properties and decreed the suits vide

judgment dated 30.06.2000.

7. The defendant in O.S.No.1101/1993

aggrieved by the judgment and decree passed in the

said suit, preferred appeal in R.A.No.114/2000 on the

file of III Additional Senior Civil Judge and JMFC,

Mangalore, D.K. The First Appellate Court, after

hearing the parties, has framed the following points

for consideration:

1. Whether the plaintiff proves that he is the owner in possession of the suit schedule property as on the date of suit?

If so, further proves the alleged interference by the defendant?

2. Whether the appellant proves that the impugned judgment and decree passed by the trial judge is illegal, perverse and contrary to the provisions of law as well as on facts of the case, therefore, interference of this Court is necessary to set aside the impugned judgment and decree passed by the lower Court in O.S.No.1101/1993 dated 30.06.2000 by the 4th Addl. Civil Judge (Jr.Dn.) Mangalore? If so, to what extent?

3. What order?

8. The First Appellate Court, on re-assessment

of the oral and documentary evidence, answered point

No.1 in negative and point No.2 in affirmative and

consequently allowed the appeal vide judgment dated

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27.03.2015 and set aside the judgment passed in

O.S.No.1101/1993 and consequently dismissed the

suit filed by the plaintiffs. The plaintiffs aggrieved by

the judgment and decree passed in R.A.No.114/2000,

have filed this second appeal.

9. This court admitted the appeal on the

following substantial question of law :

1) Whether the plaintiffs prove that the First Appellate Court was justified in deciding the title in a suit for bare injunction?

2) Whether the First Appellate Court has committed an error in not considering the judgment and decree passed in O.S.No.860/1993 when the trial Court has recorded a finding that the plaintiffs are in possession of the suit schedule property?

3) Whether the First Appellate Court was justified in reversing the judgment and decree passed by the trial Court?

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4) What order or decree?

10. Heard learned counsel for the parties.

11. Learned counsel for the plaintiffs submits

that plaintiffs are in possession of the suit schedule

properties since from time immemorable and submits

that the plaintiffs had also filed the suit against the

Government and Corporation of the City of Mangalore

in O.S.No.860/1993 and the trial Court decreed the

suit of the plaintiffs. The First Appellate Court

committed an error in not considering the decree

passed in the said suit. He further submits that the

present suit and O.S.No.860/1993 were clubbed

together and common evidence was recorded by the

trial Court. The judgment and decree passed in

O.S.No.860/1993 has attained finality. Further the

defendant is not in possession of the suit schedule

properties as there is no dhobikhana in the suit

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properties. He submits that the First Appellate Court

placed much reliance on the stray sentences of the

witnesses to hold that the plaintiffs are not in

possession of the suit properties. He further submits

that the findings recorded by the First Appellate Court

is contrary to the records. Hence, the judgment and

decree passed by the First Appellate Court is perverse

and arbitrary. Hence, on these grounds he prays to

allow the appeal.

12. Per contra, learned counsel for the

defendant submits that land is reserved for

dhobikhana for the benefit of the members of

Madivalara community who are incidentally the

members of the defendant - sangha. He submits that

the plaintiffs are not in possession of the suit schedule

properties and no documents have been produced to

show that Mulageni tenant have ever surrendered

possession of Mulageni which allegedly contained that

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tanks. He submits that the plaintiffs created the

documents and filed the present suit. He further

submits that the Government is likely to reconsider for

grant of said land in favour of Madivalara community.

He submits that by virtue of injunction order sought

by the plaintiffs, the legal right of the defendant -

sangha cannot be deprived. He submits that the

defendant has got a better right, title and interest,

than the plaintiffs in respect of the suit properties

which has been reserved by the Government for

beneficial enjoyment of its members. The First

Appellate Court considering the material on record, is

justified in passing the impugned order. The judgment

passed by the First Appellate Court is just and proper.

Hence, prayed to dismiss the appeal.

13. Perused the records and considered the

submissions of learned counsel for the parties.

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14. SUBSTANTIAL QUESTION NOS.1 TO 3: As

these questions are interlinked, they are taken

together for common discussion in order to avoid

repetition of facts. The suit schedule properties

comprising of 7 cents in T.S.No.145 and 27 cents in

T.S.No.146 belongs to and is in possession and

enjoyment of the temple as the property of the

temple. The suit schedule properties contains small

and big tanks together known as karangalpady tanks

of the temple and used for paddy crop. As the original

title deeds of the schedule properties are lost in

antiquity or cannot be related to the schedule

properties, as the documents prior to survey and

settlement of lands under British Rule were not

described by survey number. A document dated

30.05.1857 is available which is a Mulageni lease

granted by Narayana Pai, trustee of the temple to one

Thimmappa. The said lease refers to the property as

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part of No.35, Rayappa Warg, Kodialbail Village. The

said property relates to the suit schedule property.

The lands in T.S.Nos.145 and 146 were entered in the

revenue records as poramboke lands by mistake. At

the time of resettlement, the Collector of South

Canara informed the Manager of the temple that

action will be taken to set right the wrong entry with

regard to Karangalpady tanks. The Commissioner,

Mangalore Municipality called upon the trustee of the

temple, as owner of the land, to construct parapet

walls to the tanks and to desilt and clean the tanks.

By an agreement dated 10.11.1955, the tanks were

taken on lease by the Assistant Director of Fisheries,

South Canara, for the purpose of pisciculture for a

period of 5 years. Subsequently, by a letter dated

09.01.1958, the Assistant Director of Fisheries

surrendered the possession of the tanks to the

temple. It is contended that the defendant is

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attempting to commit trespass into the suit schedule

properties and use it as a dhobikhana high-handedly

and illegally and attempted to put a fence enclosing

the schedule properties. The defendant has no right

over the suit schedule properties.

15. The defendant denied that the plaintiffs are

the owners of the suit schedule properties and

admitted that the suit properties contained one big

and small tanks, which were being used by the

community people for washing clothes since ancient

times. It is contended that the plaintiffs got created

the records and filed the present suit. The plaintiffs

got examined 5 witnesses as PW.1 to PW.5. PW.1 has

reiterated the plaint averments and produced

documents. Ex.P.1 is the Mulageni chit dated

30.05.1857, Ex.P.2 is the copy of proceedings of the

Collector of South Canara, Mangalore, issued by the

Commissioner Municipality dated 05.09.1949. The said

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Ex.P.2 discloses that the Manager of the temple was

informed that action will be taken to set right the

wrong entry, if any, with regard to Karangalpady tank

and further there is also reference at serial No.1 in

Ex.P.2 in regard to the petition submitted by the

manager of the plaintiff - temple, Ex.P.3 is the

communication dated 06.02.1951 addressed by

Municipal Health Officer, Mangalore to the Manager of

the plaintiff-temple inviting the attention of the

manager and requesting to remove rank vegetation

grown in Karangalpady tank, failing which, an action

will be taken against the manager of the plaintiff -

temple. Ex.P.6 is the lease agreement executed

between the trustees of the plaintiff-temple and

Assistant Director of Fisheries, South Canara,

Mangalore on 10.11.1955. The said lease agreement

pertains to T.S.Nos.145 and 146 of Kodialbail Village.

The said lease was for a period of 5 years for the

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purpose of pisciculture. Ex.P7 is the endorsement

issued by the Assistant Director of Fisheries which

discloses that two sets of agreements were prepared

and one set was handed over to the trustees of the

temple and another was retained by the Assistant

Director of Fisheries. Ex.P.8 is the communication

addressed by the Assistant Director of Fisheries to the

trustees of plaintiff-temple indicating that the

Assistant Director of Fisheries are requested to

terminate the lease and cancel the lease agreement

dated 10.11.1955 and further requested to waive off

the compensation payable to temple from the year

1955. Ex.P.9 is the communication dated 25.2.1958

addressed by the Commissioner, Mangalore

Municipality, to the managing trustee of plaintiff

temple, wherein the commissioner municipality

admitted that Karangalpady tanks belongs to the

plaintiff - temple and requested to repair and remove

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silt and keep it in a clean and sanitary condition.

Ex.P.10 is the communication dated 14.11.1969

addressed by the Commissioner, City Municipal

Council, Mangalore, calling upon the trustees

proposing to fill up the temple tanks which have

become a breeding place for mosquitoes by dumping

debris and sought for implementing the proposal. The

trustee of the plaintiff-temple in reply to Ex.P.10,

submitted reply contending that trustees are

agreeable for filling the said tanks by dumping the

debris. Ex.P.12 is the copy of notice under Section 80

of CPC issued by the trustees of the temple to the

Deputy Commissioner of D.K., and office of the

Deputy Commissioner, Mangalore and Commissioner,

Corporation of City of Mangalore, alleging that the

trustees have an apprehension that the temple

possession is in danger of being interfered with or

disturbed and intimating that the plaintiffs will initiate

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proceedings against the Deputy Commissioner and

Commissioner of Corporation of the City of Mangalore.

Ex.P.13 is the postal acknowledgment which discloses

that the Corporation Commissioner has accepted the

legal notice, Exs.P.14 and 15 are the postal

acknowledgements that the notice issued as per

Ex.P.12 was served on the Deputy Commissioner and

the Commissioner of Corporation of the City of

Mangalore, Ex.P.15 is the RTC extract in respect of

land bearing Sy.No.145, Ex.P.16 is the RTC extract in

respect of T.S.No.146, Ex.P.17 is the sketch prepared

by the survey department, Exs.P.18 to 22 are the RTC

extracts in respect of Sy.No.141 which discloses in

column No.9 the name of plaintiff-temple in respect of

land bearing Sy.Nos.141, 144, 147, 147/2, 147/3 and

148. Exs.P.23 to 25 are the RTC extract in respect of

land bearing Sy.No.146, Ex.P.26 is the extract of

survey and settlement register, Ex.P.27 is the copy of

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complaint submitted by the plaintiff - temple to the

police authorities on 17.10.1993, Ex.P.28 is the

endorsement issued by the police authorities for

having received the complaint from the temple on

17.10.1993 in respect of T.S.Nos.145 and 146,

Ex.P.29 is the agreement, Ex.P.30 is the registered

agreement executed on 08.06.1938, Ex.P.30A is the

true copy of Ex.P.30, Ex.P.31 is the communication

addressed by the Commissioner to the Manager of the

plaintiff-temple dated 24.01.1953, intimating that

resolution was passed on 10.05.1953 and resolved to

request the manager of plaintiff-temple to keep the

tanks area clean and proposal to surrender the tanks

to the Municipality was not accepted by the

Department, Ex.P.32 is the letter addressed by the

Municipal Health Officer to the manager of the

plaintiff-temple on 08.12.1950. Exs.P.33, 34 , 35, 36,

37, 38 are the letters addressed by the Municipal

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Health Officer, Mangalore, City Municipal calling upon

the trustees/manager for removal of rank vegetation

in Karangalpady tanks. Ex.P.39 is the letter addressed

to the Commissioner, Mangalore Municipality, Ex.P.40

is the dittam book which discloses that expenditure of

daily viniyogas, Ex.P.41 is an application submitted by

the plaintiff-temple to the Commissioner dated

18.10.1993, Ex.P.42 is the proceedings of the Deputy

Commissioner which discloses that T.S.No.145(7

cents) and 146 (27 cents) of Kodialbail Village at the

disposal of municipality for locating dhobikhana,

Ex.P.43 is the sketch of village map, Ex.P.44 is the

notice.

16. Further, the plaintiffs in order to establish

the possession, examined the witnesses as PWs.2 to

PW.5, they have deposed that the plaintiff temple is in

possession of T.S.Nos.145 and 146 and the defendant

is not in possession of the suit schedule property.

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Nothing has been elicited in the course of cross-

examination from these witnesses. Official of the

State by name Sri. Vijayendranath Shetty was

examined as DW.1. He has reiterated the written

statement averments filed in O.S.No.860/1993

wherein in the course of cross-examination he admits

that the tanks are situated in T.S.Nos.145 and 146.

He pleads ignorance that said tanks belong to the

plaintiffs and he do not know to whom it belongs to.

He admits that procession being led from plaintiff -

temple to the suit schedule properties on

Vijayadashami day, the years of corn collected in the

suit schedule land is taken in the procession. DW.2 is

the president of Madivalara Sangha and he has

admitted that the defendant-sangha is not in

possession of T.S.Nos.145 and 146. He admits that

several public complaints were received by the State

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for changing the land use for dhobikhana in the

records.

17. The defendant in O.S.No.1101/1993 filed

documents. Ex.D.1 is the copy of proceedings by the

Government of Mysore dated 21.03.1968, wherein

Government has accorded place to an extent of 34

cents out of T.S.No.146(0-07) cents and 146 (0-27)

cents in favour of Mangalore Municipality, free of site

value for locating dhobikhana and the grant is subject

to complying the conditions, Ex.D2 is the proceedings

of the Deputy Commissioner dated 28.04.1962, to

transfer the aforesaid lands to parambhog dhobikhana

with immediate effect, Ex.D3 is the written argument

submitted by the plaintiff before the Deputy

Commissioner, Ex.D4 is the copy of the proceedings of

the Deputy Commissioner dated 15.04.1991 wherein

the petition filed by the plaintiff-temple was

dismissed. Ex.D5 and Ex.D6 are the certified copies of

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adangal, Ex.D7 is the copy of proceedings of Municipal

Council dated 18.03.1964, disclosing that council has

agreed to abide by the conditions for the disposal of

suit properties for locating dhobikhana, Ex.D8 is the

proceedings of the Deputy Commissioner in respect of

transfer of classification of lands to parambhog

dhobikhana and Ex.D9 is the certified copy of the

sketch map issued by the survey departments,

Exs.D11 to 16 are the RTC extracts in respect of

T.S.Nos.145 and 146 and Ex.D17 is an application

submitted by the plaintiffs on 21.09.1985 requesting

to pass orders for re-establishing warg right over

lands in Sy.Nos.145 and 146 of Kodialbail villzage as

the plaintiff-temple is enjoying the property since time

immemorable and permitted to take up development

works. Ex.D18 is the order passed by the Deputy

Commissioner rejecting the application of the plaintiff,

Ex.D19 is the order dated 27.01.1989, passed by the

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Municipality of Mangalore, Ex.D20 is the proceedings

by the Government permitted for change of

classification for parambhog dhobikhana.

18. From the perusal of the records produced

by the plaintiffs, it discloses that the documents

produced by the plaintiffs came into existence during

undisputed period. Further as per Ex.P6, the lease

executed by Assistant Director of Fisheries in favour of

trustees of the plaintiff - temple and also from the

perusal of oral and documentary evidence, it discloses

that the plaintiffs are in possession of the suit

schedule properties. Further DW.2 in his evidence has

admitted that the defendant is not in possession of

T.S.Nos.145 and 146 as on day. Further the trial Court

placing reliance on the evidence of plaintiffs' witnesses

and the documents produced, has recorded a finding

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that plaintiffs are in possession of the suit schedule

properties.

19. In rebuttal, the defendant has not

produced any records to establish it's possession over

the suit schedule properties. Official of DW.1 has

clearly admitted that there are tanks in T.S.Nos.145

and 146 and he also admitted that the procession is

being led from plaintiff-temple to the suit schedule

properties on Vijayadashami. The Corporation has not

led any evidence. In a suit for bare injunction, the

Court is required to consider the possession and

interference by the defendant. The plaintiffs have

proved that the trustees are in possession of the suit

schedule properties. The plaintiffs also filed a suit in

O.S.No.860/1993 against the State and Corporation of

the City of Mangalore. The trial Court considering the

oral and documentary evidence held that the plaintiffs

have proved lawful possession and enjoyment over

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the suit schedule properties and decreed the suit of

the plaintiffs in O.SNos.860/1993 and 1101/1993. The

defendant in O.S.No.1101/1993 preferred an appeal in

R.A.No.114/2000. The State and the Corporation

have not challenged the judgment and decree passed

in O.S.No.860/1993. The judgment passed in the

aforesaid suit has attained finality. The First Appellate

Court without considering the findings recorded in

regard to the possession of plaintiff in

O.S.No.860/1993, passed the judgment dismissing

the suit in O.S.No.1101/1993. Admittedly, the

properties are not yet transferred in the name of the

defendant and the defendant is not in possession of

the properties. Without considering the said aspect,

the First Appellate Court has recorded a finding that

the plaintiffs have miserably failed to prove their

ownership and possession. The First Appellate Court

has failed to look into the records that suit is only for

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bare injunction and not for the relief of declaration of

title. It is well established principle of law that Court is

required to consider the possession as on the date of

filing of suit and alleged interference and Court cannot

go into the issue of title in a suit for bare injunction.

The First Appellate Court has committed an error in

passing the impugned judgment. In view of the above

discussions, I answer substantial question Nos.1 and 3

in the negative and substantial question No.2 in the

affirmative.

20. Accordingly, I proceed to pass the

following:

ORDER

Appeal is allowed.

The judgment and decree dated 27.03.2015, passed by the III Additional Senior Civil judge, Mangalore in R.A.No.114/2000 is set aside.

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The judgment and decree passed by the trial Court in O.S.No.1101/1993 is restored.

No order as to the costs.

SD/-

JUDGE

SSB, SKS