The Church Of South India Trust ... vs Mr Abdul Khader
2023 Latest Caselaw 119 Kant

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
         DATED THIS THE 3RD DAY OF JANUARY 2023
                         BEFORE
        THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

        WRIT PETITION NO.21438/2022 [GM-CPC]

BETWEEN :
THE CHURCH OF SOUTH INDIA
TRUST ASSOCIATION
A COMPANY REGISTERED UNDER
THE INDIAN COMPANIES ACT
HAVING ITS OFFICE AT
CHURCH OF SOUTH INDIA SYNOD SECRETARIAT
CATHEDRAL P O MADRAS
REP BY ITS GPA HOLDERS
MR. VINCENT PALANNA
S/O JOHN PRABHAKAR PALANNA
AGED 40 YEARS, TREASURER, CSI KARNATAKA
SOUTHERN DIOCESE
DIOCESAN OFFICE, BALMATTA
MANGALURU - 575 002.
                                     ... PETITIONER
(BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE)
AND :
MR ABDUL KHADER
AGED 50 YEARS
S/O LATE P M SHERIEF
R/AT FLAT NO.A904
RETREAT APARTMENT
S L MATHIAS ROAD
ATTAVARA, MANGALURU.
                                    ... RESPONDENT
(BY SRI. RAVINDRANATH KAMATH.N, SENIOR ADVOCATE
    FOR SMT. VANAJAKSHI, ADVOCATE)
                                2



     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 26.8.2022 PASSED BY THE III
ADDITIONAL SR CIVIL JUDE AND JMFC MANGALURU D.K.
IN MISC APPEAL NO.15/2021 AS PER ANNEXURE-A.

     THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:-


                         ORDER

This petition is by the plaintiff in

O.S.No.542/2020 on the file of the II Additional Civil

Judge and JMFC, Mangaluru, Dakshina Kannada (for

short, 'the civil Court'). The civil Court by its order dated

12.01.2021 has allowed the petitioner's application (I.A.

No. II) under Order XXXIX Rule 1 and 2 of the Code of

Civil Procedure, 1908 (for short, 'CPC') for temporary

injunction directing the petitioner and the respondent to

maintain status quo as regards the possession of the

suit schedule property viz., the land measuring 14.75

cents in R.S.No.132 (T.S.No.421-P1) of Kadri A Village,

Mangaluru Taluk within the Mangalore City Corporation

(the subject property). However, in the respondent's

appeal in M.A.No.15/2021 on the file of the III

Additional Senior Civil Judge and JMFC, Mangaluru,

Dakshina Kannada (for short, 'the appellate Court'), the

civil Court's order dated 12.01.2021 is set aside and

resultantly, the petitioner's application is rejected. As

such, the petitioner has impugned the appellate Court's

order dated 26.08.2022.

2. The petitioner's case is that M/s Rosario

Cathedral Church is the superior owner (wargadar) of

the subject property, and Mr. Ebenezer Perla and his

brother were in possession of the subject property as

the mulgenidars, but Mr. Ebenezer Perla acquired

exclusive mulgeni rights to the subject property under

registered deed dated 08.10.1906 executed by his

brother. Mr. Ebenezer Perla under the sale deed dated

27.08.1907 (Annexure-B) has transferred such mulgeni

rights to M/s Evangelical Mission Society in Basel [M/s

Basel Mission].

3. The petitioner has referred to M/s Basel

Mission's different declarations of trusts for the

management of the subject property [and other

properties] and incorporation of a company under the

provisions of the Companies Act, 1956. The petitioner

has elaborately referred to [a] the declarations of trust

in the year 1932-34, [b] revocation of these declarations

and subsequent declarations of trusts in the year 1957

and the declarations in 1972, and [c] the interest of M/s

United Basel Mission Church Canara and Coorg [M/s

UBMC] and M/s United Basel Mission Church In India

Trust Association [M/s UBMCITA] in the subject

property. M/s. UBMC and M/s UBMCITA are referred

to the trust and the company incorporated for

management of the subject property.

4. The petitioner has next referred to the

proceedings in OS No. 221/1961 and OS No. 7/1991.

The petitioner contends that the suit in OS No.

221/1961 is about the validity of the resolution to

merge M/s UBMC with the petitioner, and the question

of title to the subject property is not examined in this

suit. The suit in OS No. 7/1991 is under the provisions

of Section 92 of CPC. The judgment and decree in OS

No. 7/1991 is revisited in RFA No. 280/2001, and the

judgment in this appeal is pending consideration before

the Hon'ble Supreme Court in SLP No. 13670/2012

[and with the leave being granted, this petition is

pending consideration in CA No 4813/2017]. It is

undisputed that the Hon'ble Supreme Court has

granted an order of status quo in these proceedings.

        5.   The    petitioner       has    contended   that   in

the     year       1959,     M/s           UBMCITA1     inducted

Mr. Sarvothama Amanna in the building in the subject

property as a tenant subject to payment of Rs.18.00 as

monthly rent and Rs.10.00 as annual rent. On the

demise of Mr. Sarvothama Amanna, his wife, Mrs. Edith

Amanna, continued in possession of the property, and

with the petitioner acquiring the mulgeni rights to the

subject property because of the merger of M/s UBMC2,

Mrs. Edith Amanna has paid the agreed rents to the

petitioner. She has paid rents accordingly until the year

2011, but after that she has stopped paying rents.

1 It is stated that M/s Evangelical Missionary Society of Basel [the mulgenidar] has incorporated this company under the Indian Companies Act, 1956 for management when the mulgeni rights to the subject property was held in trust for M/s UBMC 2 It is contended that M/s UBMC Malabar and Bombay Karnataka joined the petitioner in the years 1918 and 1958 respectively

6. The petitioner, for cause of action, has

contended that M/s Rosario Cathedral Church [the

wargadar] has executed sale deed dated 30.03.2011

transferring its rights in the subject property in favor of

Mr. Hifzur Rahman Barmawar, and again Mr. Hifzur

Rahman Barmawar and Mrs. Edith Amanna have

executed the sale deed dated 25.05.2011 in favour of

the respondent. He has learnt about these transactions

on enquiry only after 27.06.2020 when it was noticed

that the building in the subject property is demolished,

and the respondent cannot be permitted to change the

nature of the subject property.

7. The respondent has filed his written

statement denying the plaint assertions, and specifically

contending that neither M/s UBMC nor M/s UBMCITA

has any interest in the property. He is in possession of

the subject property as the absolute owner. M/s

Rosario Cathedral Church has transferred its wargadar

rights in the subject property in favor of Mr. Hifzur

Rahman Barmawar who has also purchased the

tenancy rights from Mrs. Edith Amanna. The

respondent contends that the petitioner, who admits

that M/s Rosario Cathedral Church is the wargadar

and asserts mulgeni rights, has not produced

documents to demonstrate that it has paid annual rent

[muli] to the wargadar, and in the absence of such

documents, the petitioner cannot assert any right in the

subject property as mulgenidar.

8. On possession of the subject property, the

respondent contends that the standing structure in the

subject property was old and dilapidated, and some part

of it was also dilapidated because of rains. Therefore,

he has demolished the existing structure for the

purposes of reconstruction. As regards the direction to

maintain status quo in CA No. 4813/2017, the

respondent contends that the dispute is between the

petitioner and M/s UBMC, and such order cannot affect

the respondent's rights to use the subject property in

accordance with law.

9. The civil Court has considered the merits of

the petitioner's application for temporary injunction in

the light of the aforesaid rival submissions and the

questions such as whether the subject property is part

of the dispute in O.S. No.7/1991 which is presently

pending before the Hon'ble Supreme Court in C.A.

No.4813/2017 and whether the mulgenidar's rights are

extinguished. The civil Court, on reading the schedule

appended to the plaint in O.S. No.7/1991, has opined

that the subject property is mentioned as item No.93 in

such schedule and therefore, it must be concluded that

subject property is included in the dispute pending in

the appeal before the Hon'ble Supreme Court in the

aforesaid proceedings.

10. The civil Court has reasoned that the

respondent relies upon extinguishment of mulgeni rights

in the subject property based on consent letters issued

by M/s UBMC and the petitioner in favor of Mrs. Edith

Amanna, but these consent letters, being unregistered

documents, prima facie will not create any transferable

right in favor of Mrs. Edith Amanna who could have

only continued in possession of the subject property as

sub-mulgenidar. The civil Court has also observed that

M/s UBMCITA is not a party to the proceedings, and if

there is an order of temporary injunction in favor of the

petitioner, the rights of M/s UBMCITA would be

seriously prejudiced. Finally, the civil Court has opined

that in the peculiar facts and circumstances of the case,

the petitioner and the respondent must be directed to

maintain status quo.

11. The respondent has carried the civil Court's

impugned order dated 12.01.2021 in appeal before the

appellate Court. The appellate Court has tested the civil

Court's order as against the touchstone of being in

accordance with the settled principles of law and

without arbitrariness. The appellate Court, referring to

letters dated 07.02.1998 and 03.01.20003 addressed by

M/s UBMCITA in favor of Mr. Hifzur Rahman Barmawar

and Mrs. Edith Amanna [and these letters are based on

the communication addressed by Mrs. Edith Amanna

expressing her willingness to transfer her interest

in the subject property and mobilize funds for her

sustenance], has opined that M/s UBMCITA has

transferred mulgeni rights. The appellate Court, apart

3 The respondent has produced a copy of these letters as Annexures-R2 and R5

from the aforesaid correspondence, has referred to the

revenue records to opine that these records demonstrate

that the respondent has purchased the subject property

from Mr. Hifzur Rahman Barmawar. The appellate

Court has also opined that the respondent, at the stage

when the trial is yet to commence, has placed on record

material to show lawful possession of the subject

property.

12. The appellate Court, as regards the orders of

the status quo passed by the Hon'ble Supreme Court,

has referred to the petitioner's case that the dispute in

the proceedings before the Hon'ble Supreme Court is

about the validity of resolution for merger of M/s UBMC

with the petitioner, and because this dispute has not

attained finality and the respondent is not a party to the

proceedings, the orders of status quo will not bind the

respondent. Finally, the appellate Court has opined that

the civil Court has granted an order of status quo

overlooking material circumstances.

13. This Court on 09.11.2022, has granted

interim order directing the parties to maintain status

quo without changing the nature of the subject property

until the next date of hearing and with the change in

counsel, a memo is moved for listing of the petition

along with an application for vacating the interim order

granted by this Court. With the pleadings being

complete even on the application, and upon both Sri.

Pundikai Ishwar Bhat, the learned counsel for the

petitioner, and Sri. N. Ravindranath Kamath, the

learned Senior Counsel for the respondent, being

informed that the petition would be taken up for final

disposal, the petition is taken up for final hearing.

14. Sri. Pundikai Ishwar Bhat submits that the

appellate Court has interfered with the civil Court's

order to maintain status quo because it has misdirected

itself to the facts and circumstances of the case. In this

regard, he draws the attention of this Court to the

appellate Court's opinion that the "said Hifzur Rahman

Barmawar has sold muli rights in favor of the defendant

and hence the defendant has become the wargadar of

the property." The learned counsel submits that M/s

Rosario Cathedral Church is the wargadar and this

entity may have transferred its wargadar rights in

favour of Mr. Hifzur Rahman Barmawar but that cannot

be construed as transfer of mulgeni rights because the

mulgeni rights are vested in the petitioner.

15. Sri. Pundikai Ishwar submits that Mr.

Sarvotham Amanna was inducted by M/s UBMCITA [an

entity incorporated by the then mulgenidar - M/s UBMC

in the 1950s to manage the subject property] only as a

tenant, and on his demise, his wife Mrs. Edith Amanna,

has continued in possession. Even if Mrs. Edith

Amanna has joined in execution of the sale deed in

favor of the respondent along with Mr. Hifzur Rahman

Barmawar, it cannot be contended that the petitioner's

mulgeni rights have been extinguished. The petitioner is

entitled for the mulgeni rights because of the resolution

to merge M/s UBMC Canara and Coorg with it.

16. Sri. Pundikai Ishwar Bhat relies upon the

sale deed dated 30.03.2011 executed in favor of Mr.

Hifzur Rahman Barmawar by the wargadar, M/s

Rosario Cathedral Church to contend that as of that

date only symbolic possession was delivered, and also

the terms of the subsequent sale deed dated 25.05.2011

to contend that Mrs. Edith Amanna, who was only a

tenant, could not have delivered possession of the

subject property. The respondent's claim for possession

to the exclusion of the subject property is strenuous

and there is case for grant of temporary injunction, or in

the least an order to maintain status quo.

17. Sri. N Ravindranath Kamath, on the other

hand, submits that respondent has acquired not only

warga rights but also the mulgeni rights, and crucially,

is put in possession of the subject property by Mrs.

Edith Amanna who admittedly was in possession of the

subject property. The petitioner cannot dispute that the

respondent has acquired warga rights to the subject

property with M/s Rosario Cathedral Church executing

sale deed dated 30.03.2011; that Mrs. Edith Amanna,

who had the benefit of the consent letter/resolution by

both by the petitioner and M/s UBMCITA and could

have transferred not just the tenancy rights but also the

mulgeni rights, has transferred such rights in the

subject property to the respondent in joining Mr. Hifzur

Rahman Barmawar in executing the sale deed dated

25.05.2011.

18. Sri. N Ravindranath Kamath submits that if

the petitioner succeeds in the dispute pending before

the Hon'ble Supreme Court would be entitled to mulgeni

rights subject to the enactment for extinguishment of

mulgeni rights, and the respondent, subject to the

caveat as aforesaid, cannot dispute such rights. On the

question of balance of convenience and irreparable

injury, Sri. N Ravindranath Kamath submits that after

the aforesaid sale deeds, the revenue records for the

subject property are mutated in favor of the respondent

who has obtained appropriate building plan and has

commenced construction. He relies upon the

photograph enclosed to the statement of objections to

assert that the respondent has excavated earth for

construction of RCC wall for basement. He relies upon

the following photograph:

19. The merits of the rival submissions are

considered thus. The petitioner claims mulgeni rights to

the subject property and its claim as mulgenidar is

hinged on the resolution that is the subject matter of

the dispute that is pending before the Hon'ble Supreme

Court. The respondent is unequivocal that if the

petitioner succeeds in the proceedings before the

Hon'ble Supreme Court, he who has acquired warga

rights and symbolic possession from the wargadar and

actual possession from Mrs. Edith Amanna, who was

indisputably in possession of the subject property,

cannot contest such rights and his possession and

construction will be such rights but subject to caveat as

aforesaid.

20. This unequivocal stand offers perceptive on

the question whether the petitioner could succeed in the

suit on the strength of the asserted mulgeni rights, but

this aspect will have to be finally decided by the civil

Court after the parties have let in their evidence, and

subject to the decision of the Hon'ble Supreme Court.

As such, this Court is of the considered view that

though there is elaborate discussion by both the civil

Court and the appellate Court on the petitioner's rights

as mulgenidar, it may not be decisive at this stage.

21. The petitioner does not dispute that Mrs.

Edith Amanna was in possession of the subject property

though it contends that it is only as a tenant and not as

a sub-mulgenidar. The respondent is put in possession

of the subject property by Mrs. Edith Amanna under a

registered transfer. The respondent is unequivocal that

if the petitioner succeeds in the proceedings before the

Hon'ble Supreme Court, he who has acquired warga

rights and symbolic possession from the wargadar and

actual possession from Mrs. Edith Amanna, cannot

contest such rights and his possession and the

construction in the subject property will be subject to

such rights.

22. Further, it cannot be gainsaid that even if

the petitioner succeeds in establishing its rights as

mulgenidar of the subject property, the petitioner cannot

claim exclusive possession unless possession thereof is

recovered in the manner known to law. The respondent

has asserted that it has commenced construction in the

subject property, and a photograph as extracted above

is also placed on record. The petitioner does not

dispute the status of the property as seen in this

photograph. In the aforesaid circumstances, the

question will be whether the subject property must

continue as it now exists with the excavation when the

parties' respective rights will ultimately be decided by

the civil Court as aforesaid subject to the decision of the

Hon'ble Supreme Court in the proceedings and the

evidence let in by the parties.

23. This question must necessarily be

considered not just as against the merits of the

appellate Court's order but also subsequent event viz.,

the respondent obtaining the building license and

commencing construction with excavation of earth for

construction of a basement. It is settled law that the

injunction cannot be granted merely because there is

prima facie case (in the sense that there is a case for

trial) and the Courts must also examine the question of

balance of convenience and irreparable injury. Sri

Ravindra Kamath is categorical, even when repeatedly

queried by this Court, that the construction by the

respondent in the subject property would be subject to

the outcome of the dispute pending before the Hon'ble

Supreme Court and the decision in the suit.

24. If the respondent proceeds to put up

construction in the subject property in the light of this

unequivocal stand, this Court is of the considered view

that the petitioner, who could only assert mulgeni rights

without claiming exclusive possession unless the

possession of the subject property is recovered in a

manner known to law, cannot be prejudiced. It would

also not be just and fair to let the property to remain as

an excavated property lest there is threat to life and the

adjacent properties. For the aforesaid reasons, this

Court must dispose of the petition dissolving the interim

order granted, and the petition stands disposed of

accordingly.

All the pending applications also stand disposed of

by this order.

Sd/-

JUDGE

RB, AN/-, nv