Karnataka High Court
Sri Jagathguru Sri Neelakanta ... vs S P Velayutham on 22 May, 2023
Bench: K.S.Mudagal, Rajendra Badamikar
1
M.F.A.No.7038/2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MAY 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
MISCELLANEOUS FIRST APPEAL NO.7038/2021(LAC)
BETWEEN:
SRI JAGATHGURU SRI NEELAKANTA
SARANGA DESI KENDRA MAHASWAMIGALU
RAMALINGESHWARA MATT
PEETADIPATIGALU
HARANAHALLI, HONALLI TALUK
SHIVAMOGGA DISTRICT ...APPELLANT
(BY SRI.A.G.SHIVANNA, SENIOR COUNSEL FOR
SRI.M.N.SRIKANTH, ADVOCATE)
AND:
1. S P VELAYUTHAM
S/O LATE SABHAPATI
AGED ABOUT 64 YEARS
R/AT NO.5, SABARI STREET
MADIPAKKAM
CHENNAI - 600 091
2. YASHVIR GOYEL
S/O LATE G D GOYEL
AGED ABOUT 76 YEARS
R/AT NO.202/41
SANKEY ROAD
SADASHIVA NAGAR
BENGALURU - 560 080
2
M.F.A.No.7038/2021
3. SRI SRI SRI RAMALINGESHWARA SWAMY
SARVAADIKARIGALU
SRI SRI SRI SADGURU
RAMALINGESHWARA MAHASWAMIGALU
KANIVE BILACHI
CHENNAGIRI TALUK
4. SRI SHIVAYOGISWARA
SHIVAACHARYA MAHASWAMIGALU
SRI RAMALINGESHWARA MUTT
HARANAHALLI, SHIMOGA TALUK
SRI H R VISHWANATH, SECRETARY
SRI RAMALINGESHWARA MUTT
HARANAHALLI, SHIMOGA TALUK
(DELETED VIDE ORDER DATED 19.07.2019)
5. SRI SHA BRA CHANDRAMOULISWARA
SHIVACHARYA SWAMIGALU
MATADHIPATI
SRI RAMALINGESHWARA MUTT
HARANAHALLI, SHIMOGA DISTRICT
6. SRI G R GURUMUTT, SARVADHIKARI
SRI RAMALINGESHWARA MUTT
HARANAHALLI, SHIMOGA TALUK
7. SRI MADHUMANAND SWAMIJI
KARYADHYAKSHARU
SRI RAMALINGESHWARA MUTT
HARANAHALLI, SHIMOGA TALUK
8. SRI JNANAPRAKASH GOYAL
MR GOYAL ESTATE
NARANG CHAMBERS, N R ROAD
BENGALURU
9. SRI SRI SRI MALLIKARJUNA
SHIVACHARYA MAHASWAMIGALU
MATHADIPATHI AND SARVADHIKARI
OF SRI RAMALINGESHWARA MUTT
HARANAHALLI, HARANAHALLI HOBLI
SHIMOGA TALUK AND DISTRICT
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M.F.A.No.7038/2021
10 . SRI SHA BRA VISHWARADYA
SHIVACHARYA SWAMIGALU
AGED 42 YEARS
MATADHIPATI
OF SRI RAMLINGESHWARA MUTT
HARANAHALLI
SHIMOGA TALUK AND DISTRICT
11 . SPECIAL LAND ACQUISITION OFFICER
KIADB (METRO RAILWAY PROJECT)
NRUPATHUNGA ROAD
BENGALURU
12 . GENERAL MANAGER (LA AND E)
BMRCL SHANTHINAGAR
BENGALURU ...RESPONDENTS
(BY SRI.RAVI B NAIK, SENIOR COUNSEL FOR
SRI.M.J.ALVA, ADVOCATE FOR R1 & R2;
R3 IS SERVED;
SRI.H.H.KALADGI, ADVOCATE FOR R4;
V/O DTD: 28.02.2022 APPEAL STANDS ABATED AGAINST R5;
SRI.J.M.UMESHA MURTHY, ADVOCATE FOR R6;
SRI.H.M.GIRISHA, ADVOCATE FOR R7 & R8;
R9 IS SERVED;
SRI.ARUN A GADAG, ADVOCATE FOR R10;
SRI.P.V.CHANDRASHEKAR, ADVOCATE FOR R11;
SRI.K.KRISHNA, ADVOCATE FOR R12)
THIS MFA IS FILED U/S 54(1) OF LAND ACQUISITION ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
04.09.2021 PASSED IN LAC.NO.51/2014 ON THE FILE OF THE II
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(C.C.H.NO. 17), PARTLY ALLOWING THE REFERENCE PETITION
FILED UNDER SECTION 30 AND 31(2) OF THE LAND ACQUISITION
ACT.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD
AND RESERVED ON 21.04.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, K.S.MUDAGAL J.,
DELIVERED THE FOLLOWING:
4
M.F.A.No.7038/2021
JUDGMENT
Challenging the rejection of his claim petition under
Sections 30 & 31(2) of Land Acquisition Act 1894 (for short
'the Act') claimant No.4 in LAC No.51/2014 on the file of II
Addl. City Civil and Sessions Judge, Bengaluru (CCH No.17)
has preferred the above appeal.
2. Appellant was claimant No.4, respondents 1 to 3
were claimants 1 to 3, respondent Nos.4 to 10 were claimant
Nos.5 to 12 and respondent Nos.11 and 12 were respondents
No.1 and 2 in LAC No.51/2014 before the Reference Court. For
the purpose of convenience the parties will be referred to
henceforth according to their ranks before the Reference
Court.
3. The brief facts of the case are as follows:
i) Under the notification dated 29.09.2009
respondent No.1 acquired along with several other lands, the
land bearing Sy.No.12 of Nagasandra village in all measuring
8 acres 26 guntas for the purpose of Bengaluru Metro Rail
Project (for short 'BMRP'). The final notification was issued on
M.F.A.No.7038/2021
11.03.2010 showing the name of Pavan Kumar Singhal @
Agarwal the vendor of claimant No.1. The said notification so
far it related to claimant No.1 was set aside by the order of
this Court in W.P.No.27682/2010 (LA RES) and
W.A.No.15215/2011 (LA RES) dated 25.11.2011 on the
undertaking of respondent No.2 that fresh preliminary
notification will be issued within four weeks showing the name
of claimant No.1. Accordingly the amended notification was
issued 30.04.2013.
ii) Possession of the land was taken by the first
respondent on 25.11.2010 and transferred to BMRP. The first
respondent passed the award on 22.04.2014 in respect of the
aforesaid land granting compensation of Rs.30,04,74,464/-.
Since Claimant Nos.1 to 12 each claimed entitlement to
receive the compensation amount, respondent No.1 deposited
the said amount before the Reference Court. Then respondent
No.1 acting under Section 30 and 31 (2) of the Act, referred
the matter to the Reference Court for adjudication of the
entitlement of the rival claimants to receive the compensation
M.F.A.No.7038/2021
amount. Reference Court registered the same in LAC
No.51/2014.
iii) On receipt of the notice from the Reference Court
rival claimants appeared before the said Court. On the memo
of claimant No.6 dated 19.07.2019 for deletion of his name on
the ground that he has no claim in the matter, his name was
deleted from the case accordingly. Before the Reference Court
claimant Nos.1, 2, 4, 5, 7 and 12 alone filed their claim
statements. Claimant Nos.3, 8 to 10 did not file any claim
statement.
4. The case of Claimant Nos.1 and 2 is as follows:
i) That the land bearing Sy.No.12 in all measuring 8
acres 26 guntas belonged to one Smt.Goolabai, W/o
Madhavdas Desai who acquired the same under the registered
sale deed dated 15.02.1922 (Ex.P42). She in turn sold the
same to Prabhakar L.Kirloskar under the registered sale deed
dated 26.02.1940 (Ex.P2). He sold the same to Badridas
Kasturchand Daga and Ramanath Kasturchand Daga under the
registered sale deed dated 06.12.1956 (Ex.P3). Badridas
M.F.A.No.7038/2021
Kasturchand Daga under the WILL dated 16.09.1962
bequeathed the said property to Chandabai Badridas
Kasturchand Daga, Seth Ramanath Kasturchand Daga and
Shankarlal Ramnath Daga. Seth Ramanath Kasturchand Daga
executed the WILL and appointed his sons Seth Shankarlal
Ramanath Daga and Shivalal Ramnath Daga as the executors.
ii) Chandabai Badridas Kasturchand Daga, Seth
Shankarlal Ramnath Daga and Shivalal Ramnath Daga sold 4
acres 26 guntas out of 8 acres 26 guntas in Sy.No.12 to
Paramanand Sharma under the registered sale deed dated
24.09.1981 (Ex.P43). Paramanand Sharma in turn under the
WILL dated 18.03.1993 (Ex.P44) bequeathed the said
property to claimant No.2/Yashvir Goel. On the application of
claimant No.2/Yashvir Goel the City Civil Judge Bengalure in P
& SC No.28/1998 by the order dated 25.10.1999 (Ex.P45)
issued the probate of WILL dated 18.03.1993 in favour of
claimant No.2.
iii) Chandabai Badridas Kasturchand Daga, Seth
Shankarlal Ramnath Daga and Shivalal Ramnath Daga sold
remaining 4 acres of land in Sy.No.12 to Pavan Kumar, S/o
M.F.A.No.7038/2021
Jagadish Chander Singhal under the registered sale deed
dated 12.10.1981 (Ex.P4). Pavan Kumar in turn sold the said
4 acres of land to claimant No.1 under the registered sale
deed dated 25.09.2006 (Ex.P1). Claimant Nos.1 and 2 were
put in possession of the property sold to them respectively by
their vendors. Thus they were the absolute owners of the
property purchased by them and are entitled to receive the
compensation. The other claimants though have no interest in
the property with malafide intention filed several cases
unsuccessfully and setting up false claim. Therefore, they
requested to reject the claims of the other claimants.
5. The claim of claimant Nos.4, 5, 7, 11 and 12 were
almost the same. They claimed that they are the
mathadhipati/peethadhipati/sarvadhikari/Secretary of one
Ramalingeshwar math of Haranahalli, Shimoga taluk. They
contended that the king of Keladi dynasty who was ruling
southern Karnataka had endowed several lands in Karnataka
for maintenance of Ramalingeshwar math. Similarly the lands
bearing Sy.Nos.12 to 15 and 18 of Nagasandra village were
M.F.A.No.7038/2021
endowed in favour of the mutt for maintenance of two
choultries situated in the same village. As the then heads of
the mutt were not able to manage the properties situated in
Bengaluru they handed over the management of those lands
to the Government under the order No.28/1880-1881 dated
10.09.1880 No.25-55/1911 dated 15.12.1911 with the
condition that the Government shall return the lands to the
mutt as and when required. In course of time some people
illegally got the khatha of the said lands in their names and
alienated them to several persons. Such alienations do not
bind those claimants.
6. Claimants No.4, 5, 7 11 and 12 claimed that each
of them alone are the true
mathadhipati/peethadhipati/sarvadhikari/Secretary and the
others including claimant No.6, 8 and 9 are the fake
mathadhipati/peethadhipati/sarvadhikari/Secretary. Thus
they claimed that they are entitled to receive the
compensation. In addition to the above, claimant No.4
contended that in O.S.No.227/2012 he is declared to be the
M.F.A.No.7038/2021
mathadhipati. Therefore, he alone is entitled to the
compensation.
7. Though claimant Nos.1, 2, 4, 5, 7, 11 and 12 filed
the claim statements, out of them only claimant Nos.1,2,4,5
and 11 adduced evidence and they were examined and got
marked the documents in the below mentioned order.
Rank Witness Exhibits
Number
Claimant No.1 PW.1 Ex.P1 to P42
Claimant No.2 P.W.2 Ex.P43 to 47
Claimant No.5 PW.3 Ex.P48 to 55
Claimant No.4 PW.4 Ex.P56 to 61
Claimant No.11 PW.5 Ex. P62 to 66 and 66A
8. Vishwaradhya Swamy is claimant No.12 initially filed an
application under order 22 Rule 4 CPC claiming that since
claimant No.7 is dead, he shall be brought on record as the
legal representative of claimant No.7. But the person calling
himself to be claimant No.7 resisted the said application
claiming that he is alive and on the basis of fake death
M.F.A.No.7038/2021
certificate, the applicant is claiming as Legal Representative.
In the enquiry conducted on the said application the said
applicant was examined as DW.1 and on his behalf Ex.D1 to
D18 were marked.
9. The Reference Court by order dated 02.11.2019
disposed of the said application permitting the said applicant
to come on record as claimant No.12 instead of legal
representative of claimant No.7. During the enquiry on the
main matter, claimant No.12 did not adduce any evidence, but
sought to adopt the evidence adduced by him on his
application under Order 22 Rule 4 CPC as the evidence on the
main matter.
10. Claimant No.6 and 10 withdrew their claims. The
reference Court on hearing the parties by the impugned order
allowed the claim petitions of claimant Nos.1 and 2 alone and
rejected the claim petitions of other claimants. The Reference
Court relying on the documents produced by claimant Nos.1
and 2 more particularly Exs.P30 to P32 held that there was
already finding of the competent Court that Ramalingeshwar
M.F.A.No.7038/2021
mutt does not exist and that claimant Nos.3 to 9, 11 and 12
have failed to prove their claims.
11. Challenging the impugned order claimant No.4 has
preferred the above appeal. Claimant Nos.7 and 12 preferred
MFA Nos.4436/2021 (LAC) and 5930/2021(LAC). All the three
appeals were consolidated and were taken up together. In
MFA No.5930/2021 claimant No.12 did not pay the Court fee
despite granting several opportunities. Therefore, the said
appeal came to be dismissed on 16.02.2023.
12. In MFA No.4436/2021 counsel for claimant No.7
after arguing the matter for some time, sought withdrawal of
the said appeal. On the requisition of this Court the
Superintendent of Shimoga submitted the report to the effect
that claimant No.7 died on 28.09.2014 itself and
impersonating him the proceedings before the Reference Court
and MFA No.4436/2021 were being conducted. This Court
also noticed that charge sheet was filed against the said
appellant and his counsel for impersonation, forgery and
M.F.A.No.7038/2021
cheating and on taking cognizance matter was pending before
the Magistrate's Court in C.C.No.1873/2020.
13. Considering the request for withdrawal of the
appeal and seriousness of the matter by order dated
16.02.2023 said appeal was dismissed as withdrawn and the
matter was referred to the State Bar council for enquiry. The
other claimants viz., 3, 5, 6, 8 to 11 did not prefer any appeal.
Thereby, the findings of the reference Court against claimant
No.3, 5 to 12 attained finality. Therefore in this appeal what
remains for consideration is the claim of claimant No.4 alone.
14. Sri A.G.Shivanna, learned senior counsel
appearing for Sri M.N.Srikant, advocate on record for the
appellant addressed his arguments. IA No.2/2023 filed by
appellant/claimant No.4 under order XLI Rule 27 read with
Section 151 CPC to produce 8 documents by way of additional
evidence was placed before this Court at that stage. Claimant
Nos.1 and 2 filed their counter to the said application and
opposed the same.
M.F.A.No.7038/2021
15. Sri Ravi B.Naik, learned senior counsel for Sri
M.J.Alva, Advocate on record for respondent Nos.1 and 2
addressed his arguments. The other respondents did not
address their arguments. Despite granting sufficient
opportunities reply arguments were not addressed by the
counsel for the appellant. Ultimately the matter was reserved
for judgment.
16. Sri A.G.Shivanna, learned senior counsel
reiterating the grounds of appeal submitted that as claimant
No.4 was not a party to O.S.Nos.84/1970 & 5300/1980, the
property involved in LAC No.83/2012 was unconnected to the
present case, the reference Court was in error in holding that
those judgments bind claimant No.4. He further submits that
in O.S.No.227/2012 the Court of competent jurisdiction
declared claimant No.4 as mathadhipati, peethadhipati,
uttaradhikari and Sarvadhikari of Ramalingeshwar mutt. The
reference Court committed perversity in rejecting the claim of
claimant No.4 over looking such judgment. He further
submits that in O.S.No.1923/1975 the I Addl. First Munsiff,
M.F.A.No.7038/2021
Bengaluru on full fledged trial held that Ramlingeshwar mutt is
in possession of land bearing Sy.No.18. However by
inadvertence the said document and the other material
documents were not produced before the Reference Court.
Therefore, IA No.2/2023 is filed to adduce additional evidence
and the documents produced along with IA No.2/2023 are the
copies of the public documents and required for complete
adjudication of the matter to meet the ends of justice.
Therefore he submitted that the same may be allowed and the
matter may be remanded to reference Court for fresh
consideration on recording such further evidence.
17. Sri Ravi B.Naik, learned senior counsel for the
advocate on record for respondent/claimant Nos.1 and 2
submits that as long back as on 11.04.1974 the I Addl. Civil
Judge, Bengaluru dismissed O.S.No.84/1970 filed by the mutt
for possession of the properties situated at Bengaluru,
Shimoga and Tumkur holding that the said mutt is not in
existence and the documents produced by the plaintiff therein
were spurious one. The said plaintiff inexhaustibly filed
O.S.No.5300/1980 for permanent injunction on the same
M.F.A.No.7038/2021
ground and lost that case also. The claim petition of present
claimant No.4 made in LAC No.83/2012 in respect of Sy.No.11
on the same grounds was rejected with the same findings. In
O.S.No.5333/2013 (Ex.P39 and 41) filed by claimant No.6
H.R.Vishwanath for permanent injunction restraining present
respondent Nos.1 and 2 from disbursing the compensation
amount to the other defendants therein, he withdrew his claim
against present claimant No.1. The evidence on record clearly
shows that claimant Nos.3 to 9, 11 and 12 are indulging in
vexatious litigations before various forums only to harass
claimant Nos.1 and 2 and their predecessors in title. Claimant
Nos.1 and 2 were not party to O.S.No.227/2012, therefore the
said judgment does not bind claimant Nos.1 and 2. The
reference Court on judicious appreciation of evidence on
record has rightly rejected the claim petitions of other
claimants. IA No.2/2023 does not satisfy any of the
requirements of Order XLI Rule 27 of CPC and is an outcome
of procrastination to harass claimant Nos.1 and 2. Hence, he
seeks dismissal of the appeal and IA No.2/2023 with heavy
costs.
M.F.A.No.7038/2021
18. On careful consideration of submissions of both
side and the material on record the questions that arise for
consideration are:
i) Whether the impugned judgment and order of the
Reference Court allowing the claim petitions of
claimant Nos.1 and 2 alone suffer any illegality or
perversity ?
ii) Whether IA No.2/2023 for adducing additional
evidence deserves to be allowed ?
ANALYSIS
19. Sy.No.12 measuring 8 acres 26 guntas was one of
the lands acquired for the purpose of BMRP. There is no
dispute that initially in the preliminary notification dated
29.09.2009 and final notification dated 11.03.2010 the name
of claimant No.1 was not shown as the land owner. Ex.P26
and P27 the certified copies of the orders of this Court dated
25.11.2011 in W.P.No.27682/2010 (LA RES) and
W.A.No.15215/2011 (LA RES) show that on the concession of
the Special Land Acquisition Officer this Court quashed the
M.F.A.No.7038/2021
final notification so far as claimant No.1 herein. Then the
notification including his name was issued. On passing the
award, since several claimants claimed interest in the property
and consequently the award amount, the matter was referred
to the reference Court under Section 30 and 31(2) of the Act.
20. Claimant Nos.1 and 2 claimed ownership of 4
acres and 4 acres 26 guntas respectively in Sy.No.12.
Claimant No.1 as already narrated laid claim to the acquired
property on the basis of the sale deed dated 25.09.2006
(Ex.P1). Claimant No.2 laid claim to the property on the basis
of the WILL dated 18.03.1993 and the probate order dated
25.10.1999 (Ex.P.45). Both of them traced the source of title
of their predecessors to the property under the sale deed
dated 01.02.1922 (Ex.P42) executed by one
Thiruvengadaswamy Mudaliar for himself and his minor sons
in favour of Madhavdas Vithaldas Desai.
21. As against such claim of claimant Nos.1 and 2,
claimant Nos.3 to 9, 11 and 12 contended that Sy.No.12 and
other lands in Bengaluru were endowed by Keladi Rulers in
M.F.A.No.7038/2021
1480 A.D in favour of Ramalingeshwar mutt, Haranahalli,
Shimoga Taluk. In turn the mutt had handed over those
properties to the Government in 1880 with the condition of
returning the same whenever required by the mutt. It was
also contended that in course of time several persons illegally
changing the khata of the property in their names have sold
the same and therefore such sales are illegal and do not bind
them. Each of them claimed that they alone were the legally
anointed mathadhipati/peethadhipati/sarvadhikari/Secretary
and therefore entitled to receive the compensation amount.
22. The burden of proving their respective cases was
on claimant No.1,2, 4,5,7,11 and 12. As already pointed out,
except claimant Nos.1, 2, 4, 5, 7, 11 and 12 the other
claimants did not lead evidence. Except claimant No.4, 7 and
12 other claimants did not file any appeal challenging the
Reference Court's order. In view of dismissal of the appeals of
claimant No.7 and 12 as aforesaid, the judgment of the
reference Court has attained finality against other claimants
except of claimant No.4.
M.F.A.No.7038/2021
23. Under the aforesaid circumstances, only the claims
of claimant No.1, 2 and 4 have to be re-appreciated in this
appeal. To substantiate their case, claimants/PWs No.1 and 2
deposed before the Court according to their case in their
claim petitions and relied on Ex.P1 to P47.
24. Ex.P42 is the certified copy of the sale deed dated
01.02.1922. The said document indicates that the lands
bearing Sy No.12, 13, 14 and 15 measuring 8 acres 26
guntas, 10 acres 22 guntas, 14 acres 27 guntas and 9 acres
12 guntas respectively in all measuring 43 acres 7 guntas of
Nagasandra village were sold by Thiruvengadaswamy S/o
V.S.Velu Mudaliar and his two minor sons to Madhavdas
Vithaldas Desai for a consideration of Rs.6,000/-. The
document further indicates that the said properties were
purchased by the paternal grand father of
Thiruvengadaswamy in a sale conducted by the Sub-judge
Bengaluru in Execution case No.864/1900-01.
M.F.A.No.7038/2021
25. Ex.P2 coupled with evidence of PWs.1 and 2 show
that Goolab bai W/o Madhavdas Desai through her power of
attorney sold the said properties to Prabhakar L.Kirloskar on
26.02.1940 and delivered possession to him. Ex.P3 the sale
deed dated 06.12.1956 coupled with the evidence of PWs.1
and 2 show that Prabhakar Kirloskar sold the said properties
to Badridas Kasturchand Daga and Ramnath Kasturchand
Daga. Their evidence coupled with Ex.P4 and P43 the sale
deeds dated 12.10.1981 and 24.09.1981 show that Badridas
Kasturchand Daga under the will dated 16.09.1962 had
bequeathed the said properties to Chandabai Badridas
Kasturchand Daga, Seth Ramanath Kasturchand Daga and
Shankarlal Ramanath Daga.
26. Ex.P43 the registered sale deed dated 24.09.1981
shows that Chandbai Badridas Kasturchand Daga, Shankarlal
Ramanath Daga and Shivalal Ramanath Daga sold 4 acres 26
guntas out of 8 acres 26 guntas in Sy.No.12 to Paramanand
Sharma. The evidence of PWs.1 and 2 coupled with Ex.P44
and 45 show that Paramanad Sharma under the will dated
M.F.A.No.7038/2021
18.03.1993 bequeathed the said property to claimant
No.2/Yashvir Goel and in that regard in P & Sc No.28/1998 the
City Civil Judge Bengaluru issued the probate dated
25.10.1999 as per Ex.P45 in respect of Ex.P44 the will dated
18.03.1993.
27. So far as claimant No.1, Ex.P4 the sale deed dated
12.10.1981 shows that Chandbai Badridas Kasturchand Daga,
Shankarlal Ramanath Daga and Shivalal Ramanath Daga sold
remaining 4 acres of land in Sy.No.12 to one Pavan Kumar S/o
Jagadish chander Singhal. Ex.P1 the registered sale deed
dated 12.10.1981 shows that Pavan Kumar in turn sold the
said 4 acres of land to claimant No.1. The above documents
coupled with the other documents produced by claimant Nos.1
& 2 show that the successive purchasers/legatees were put in
possession of the properties acquired by them.
28. In the cross examination of PWs.1 and 2, the
aforesaid documents were not disputed. But the contention of
claimant No.4 was that the properties belonged to the mutt
and the vendors/testator had no right to alienate/bequeath
M.F.A.No.7038/2021
those properties. It is material to note that Ex.P42, P2 and
P3 were more than 30 years old documents and produced
from proper custody. As per Section 90 of the Indian Evidence
Act, 1872 there is a presumption with regard to the contents
of those documents.
29. Apart from the aforesaid documents the oral
evidence of PWs.1 and 2 coupled with Ex.P30, 31 and 32 the
judgments dated 11.04.1974, 23.01.2002 and 10.06.2014 in
O.S.Nos.84/1970, 5300/1980 and LAC 83/2012 show that in
those cases the Courts held that the existence of
Ramalingeshwar mutt itself was not proved. It was further
held that the claim of Keladi rulers endowing the properties in
Bengaluru to Mutt was also not established.
30. O.S.No.84/1970 was filed by the mutt represented
by its Sarvadhikari K.M.Shivarudriah against State of Mysore,
Commissioner of Survey and settlement, Divisional
Commissioner and Deputy Commissioner, Bengaluru and
Deputy Commissioner of Shimoga, Commissioner of City
Corporation, Bengaluru, Chairman, City Improvement Trust
M.F.A.No.7038/2021
Board, Bengaluru and Land Acquisition Officer, CITB for
possession on the same ground namely the lands were given
to the mutt by Keladi rulers, mutt had handed over the same
to the Government on the condition that the same shall be
returned to the mutt whenever required etc which was denied
by the defendants therein. In the judgment in that suit, the
Court held that the plaintiff therein has produced spurious
documents to advance his case and made certain sharp
observations against the plaintiff therein.
31. O.S.No.84/1970 was dismissed on 11.04.1974. On
19.09.1975 the said Shivarudriah representing Mutt filed
another suit in O.S.1923/1975 before I Munsiff, Bengaluru,
against the Corporation of city of Bengaluru for permanent
injunction in respect of land bearing Sy.No.18 measuring 20
guntas on the ground that the property was conveyed to him
by one Gurunanjaswamy of Thippashettymutt. Ex.P31 the
certified copy of the judgment in O.S.No.5300/1980 shows
that on establishment of City Civil Courts at Bengaluru the
said O.S.No.1923/1975 was transferred to City Civil Court and
M.F.A.No.7038/2021
renumbered as O.S.NO.5300/1980. Para 3 of the said
judgment shows that in that suit on 23.03.1987 the name of
K.Shivarudriah was substituted by name T.N.Srikantashastry.
Again by order dated 11.06.1998 one Channaveera
Shivacharya Swamy came to be added as mathadhipati of the
plaintiff mutt. Again on 14.06.2000 on some interim
application one Suresh Kallaiah Hiremath was added as the
power of attorney holder of Channaveera Shivacharya swamy.
While making such additions and substitutions it was alleged
in the said suit that K.M.Shivarudriah ceased to be the
mathadhipati and Srikantashastry had no authority to
represent Mathadhipati. Ex.P31 further shows that the said
suit was dismissed with costs making observation that the suit
is vexatious one.
32. ExP32 the judgment in LACNo.83/2012 shows that
3435.26 sq meters of land in Sy.No.11 was acquired under
the same notification for the same BMRP. There also claimant
No.4 set up claim to the award amount on the same ground of
Ramalingeshwar mutt being the owner and he being the
M.F.A.No.7038/2021
mathadhipati of the said mutt. In that case also rejecting his
claim the Court held claimant No.1 therein M/s.Kennametal
India Ltd is entitled to receive the award amount. Though
claimant No.4 in his evidence claimed that he has preferred
appeal against the judgment in Ex.P32 nothing was produced
to establish the same. According to claimant Nos.1 and 2,
claimant No.4 has not challenged that by filing any appeal. In
the absence of any material to show that the said order in
Ex.P32 was challenged, it has to be held that the said
judgment has attained finality.
33. So far as Ex.P30 and 31, claimant No.4 did not
dispute the genuineness of the said documents. But, it was
contended that claimant No.4 was not a party to the said
proceedings. Therefore, those judgments do not bind him. At
one breath claimant No.4 contends that the judgments in
O.S.No.84/1970 and 5300/1980 do not bind him since
K.M.Shivarudriah was not Sarvadhikari of the mutt. At another
breath he seeks to rely on the purported judgment in
O.S.No.1923/1975 dated 29.03.1978 in which the same
M.F.A.No.7038/2021
Shivarudriah represented the mutt as Sarvadhikari. That goes
to show that claimant No.4 changes his versions from time to
time to suit his conveniences. Further the suits in Ex.P30 and
31 were filed by the mutt not in the individual capacity of
K.M.Shivarudriah. Claimant No.4 claims through the same
mutt. In such event if he wanted to avoid those judgments,
he should have filed suits for the declaration that
K.M.Shivarudriah had no authority to file the suit on behalf of
the mutt and therefore, such judgments were null and void or
do not bind the mutt. Neither claimant No.4 nor any rival
claimants sought nullification of those judgments. Therefore,
unless the judgments under Ex.P30 and 31 are set aside by
the competent Court, they bind the mutt through which
claimant No.4 sets up his claim.
34. Relying on Ex.P56 and 57 the judgment and
decree in O.S.No.227/2012 claimant No.4 contended that in
the said suit he was declared to be
mathadhipati/Peethadhipati/uttaradhikari/sarvadhikari of
Ramalingeshwar mutt, therefore he is entitled to receive the
award amount. Claimant No.4 filed the said suit on
M.F.A.No.7038/2021
04.01.2012 against State of Karnataka department of
Revenue (Muzarai) and the Commissioner, Hindu Religious
and Charitable Endowment Commission. Those defendants did
not even contest the suit.
35. Ex.P50 the judgment in W.P.No.9307/2005 (GM-
R/C) c/w W.P.No.41918/2003 and W.P.No.11653/2005 dated
02.03.2009 shows that claimant No.4 was also a party in
those cases and he was aware that there were rival claimants
for the post of mathadhipati/peethadhipati/sarvadhikari. The
perusal of the said judgment shows that present claimant
Nos.5, 7 and Gnaneshwara Swamy also claimed to be the
mathadhipati/peethadhipati/sarvadhikari of the said mutt.
Similarly Ex.P61 the judgment of this Court WA No.3365/2005
(KLR-RR/SUR) dated 28.01.2008 shows that the said case was
filed challenging the judgment in W.P.No.21904/2004 by
claimant No.7 claiming to be the mathadhipati of the mutt
against the Special Deputy Commissioner, Bengaluru urban
Bengaluru, the predecessors in title of claimant Nos.1 and 2
and others. Claimant No.4 was the 20th respondent in that
case. Present claimant No.5 was respondent No.11 and
M.F.A.No.7038/2021
Channaveera Shivacharya Swamy was respondent No.12 in
the said case who set up rival claim for the post of
mathadhipati/peethadhipati/sarvadhikari of mutt. In both
those judgments the parties were directed to approach the
Civil Court to establish their right of
mathadhipati/peethadhipati/sarvadhikari.
36. Ex.P50 and 61 show that claimant No.4 was aware
as long back as in the year 2004/2005 when the other parties
to the aforesaid writ petition/writ appeal were setting up claim
for the post of mathadhipati/peethadhipati/sarvadhikari.
Despite that claimant No.4 filed O.S.No.227/2012 without
making them as parties to the said suit. The perusal of
Ex.P56 shows that on behalf of claimant No.4 only four
documents were marked. That goes to show that he had
suppressed Ex.P30, 31, 50 and 61 and filed that suit without
impleading the necessary parties. By that time there was a
finding in O.S.No.84/1970 that Ramalingeshwar Mutt does not
exist and that was reaffirmed by the judgment in
O.S.No.5300/1980. It is apparent that to circumvent the
aforesaid earlier judgments and to snatch a judgment behind
M.F.A.No.7038/2021
back of the interested persons, O.S.No.227/2012 was filed
against unconnected persons suppressing those earlier
proceedings and the judgment and decree were obtained.
Therefore the reference Court rightly accepted the contention
of claimant Nos.1 and 2 that the said judgment does not bind
them.
37. The perusal of the records show that claimant
No.4 and other swamijis indulged in innumerable litigations
invincibly before various Courts including this Court. To avoid
long narration, only the suits and writ petitions arising out of
civil suit, the judgments of which were marked in this case are
set out in the table below:
Disposal
Suit No. Prayer Between Result Ex.Nos.
Date
O.S.3873/2010
Prl. City Civil
Mutt reptd. by Dismissed
and Sessions P33 &
Possession Claimant No.7 Vs. 23.01.2023 as
Judge, P34
State withdrawn
Bangalore
O.S.26342/2010
Injunction Goyal Estate
Prl. City Civil Dismissed
against (Claimant No.10)
and Sessions 28.05.2013 as P35
disbursement of Vs. Pawankumar
Judge, withdrawn
compensation and others
Bangalore
Mutt reptd. By
O.S.26194/2009
Claimant No.5 Dismissed
City Civil Court, Declaration and
Vs. 11.09.2013 as P36
Bangalore injunction
Paramananda withdrawn
Sharma
M.F.A.No.7038/2021
Mutt reptd. By
O.S.6181/2012 Dismissed
Declaration and Claimant No.4 Vs. P37 &
City Civil Judge, 31.01.2014 as not
injunction State P38
Bangalore pressed
Got Deleted
O.S.5333/2013
Claimant
Prl. City Civil 24.01.2014/
Injunction for Mutt reptd. By No.1 and P39,
and Sessions 01.02.2014
disbursement of Claimant No.6 Vs. gave up P40 &
Judge, DNP on
compensation State claim P41
Bangalore 24.03.2015
against his
4 Acres
Sri.Channaveera
Shivacharya
Swamigalu Vs.
O.S.559/2001 Devaraj @
Prl. Civil Judge, Declaration and Shivayogi Devaru @ P48 &
21.04.2007 Dismissed
(Jr.Dn), possession Shivayogeshwara P49
Shivamogga Shivacharya
Mahaswamigalu
(claimant No.5)
Ramalingeswara
Mandatory
Educational and
injunction
Charitable Trust
directing Decreed in
(R)(claimant No.6
O.S.11122/1995 defendant and terms of
was plaintiff No.4) P51,
City Civil Judge, agents to Suit filed on the
Vs. P52 &
Mayo Hall Unit, disclaim Katha 17.11.1995 compromise
Chandramouleswara P53
Bangalore in No.59 petition on
Shivacharya
Malleshwaram 18.11.1995
Swamigalu
in name of
(claimant No.7)
Plaintiff No.6
H.Channappa &
others Vs.
O.S.17/1996 Sri.Shivalinga
Declaration and
Prl. Civil Judge Shivacharya Swamy P54 &
Permanent 19.06.2008 Dismissed
(Sr.Dn.) CJM, & others P55
injunction
Shivamogga Claimant Nos.5 &
6/defendant Nos.3
&6
Declaration that Sri.Sri.Neelakanta
O.S.227/2012 plaintiff is Saranga Desikendra
V Addl. City Civil Matadhipathi, Mahaswamigalu Decreed
P56 &
and Sessions Peetadhipathi, Ramalingeswara 27.06.2015 Without
P57
Judge, Uttaradhikari Mutt (Claimant costs
Bangalore and No.4) Vs.
Sarvadhikari of State of Karnataka,
M.F.A.No.7038/2021
Ramalingeswara Dept. of Revenue
Mutt (Muzarai)
Mallikarjuna
Shivacharya
Mahaswamygalu
(Claimant
Permanent No.11/plaintiff)
Injunction and Vs.
O.S.811/2009
declaration that Chandramouleswara
City Civil Judge, Pending P62
the plaintiff is Shivacharya
Shivamogga
duly appointed Swamigalu
Matadhipathi (Claimant
No.7/D.1) and Ors
Claimant No.4/D5,
Claimant
No.12/D10
Chandramouleswara
Shivacharya
Writ of
Swamigalu
Mandamus
(Claimant No.7)
directing Sub-
W.P.18384/2009 Advocate is
Registrar not to 22.07.2009 Disposed D15
(GM-CPC) Claimant No.6
register lands
Vs.
bearing
Vendors of
38. The evidence on record shows that apart from the
above mentioned cases since 1970 several persons claiming to
be mathadhipati/peethadhipati/sarvadhikari/Secretary/GPA of
Ramalingeshwar mutt have created labyrinth of litigations
against the Government and the purchasers in suits, writ
petitions, writ appeals etc. The contention regarding
existence of Ramalingeshwar mutt and endowment of the
property to the said mutt by Keladi Rulers was sealed by the
M.F.A.No.7038/2021
judgment in O.S.No.84/1970 as long back as 11.04.1974.
That was reaffirmed in O.S.No.5300/1980. Despite that
K.M.Shivarudriah and his clones went on filing not only the
above suits but several other cases before Civil Courts and
Revenue Courts at several places and before this Court
suppressing some material facts and many times without
impleading necessary parties.
39. What is shocking is in O.S.No.11122/1995 (Ex.P51
to 53) present claimant No.6 was plaintiff No.4 and suit was
filed against present claimant No.7, showing as if they have
conflicting interest. But, claimant No.6 files MFA
No.4436/2021 as his advocate which not only shows collusion
between the parties but also highly unethical professional
conduct. It is also to be noted that such litigations started
after the rise of the value of land on urbanization. The records
further show that right from 1970 whenever there used to be
acquisition of the land by the Government/statutory body
some cloned mathadhipati/peethadhipati/sarvadhikari used to
pop up with a suit or other proceeding, suppressing the
M.F.A.No.7038/2021
earlier proceedings before the other Courts/authorities. That
creates a doubt that in the guise of rival
mathadhipati/peethadhipati/sarvadhikari they are operating
the real estate syndicate against the purchasers and the
Government to make unlawful gain. Such conduct is not only
the harassment to the adversary, but also the sheer abuse of
process of the Court and diversion of resources of the Court,
State and the opposite party. It is noticeable that
O.S.No.5300/1980 (O.S.No.1923/1975) was dragged for
about 27 years. Noting the same the Court dismissed the said
suit with costs. The Reference Court appreciating all material
on record judiciously has allowed only the claim petition of
claimant Nos.1 and 2.
40. IA No.2/2023 for production additional evidence
has to be examined in the above context. Under the said
application claimant No.4 seeks to produce 8 documents.
Serial Nos.1 to 5 amongst them are the copies of civil lists
allegedly maintained by the Government. Sl.No.6 is the copy
of gazette notification, Sl.No.7 is the copy of joint inspection
M.F.A.No.7038/2021
report and Sl.No.8 is purportedly certified copy of the
judgment in O.S.No.1923/1975. The application was seriously
contested by claimant Nos.1 and 2.
41. The production of additional evidence is neither a
matter of right nor a matter of course. Order XLI Rule 27 CPC
which deals with the production of additional evidence reads
as follows:
"27. Production of additional evidence in
Appellate Court.- (1) The parties to an appeal
shall not be entitled to produce additional
evidence, whether oral or documentary, in the
Appellate Court. But if--
(a) the court from whose decree the appeal is
preferred has refused to admit evidence which
ought to have been admitted, or
(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the
exercise of due diligence, be produced by him at
the time when the decree appealed against was
passed, or
M.F.A.No.7038/2021
(b) the Appellate Court requires any document to
be produced or any witness to be examined to
enable it to pronounce judgment, or for any other
substantial cause, the Appellate Court may allow
such evidence or document to be produced, or
witness to be examined.
(2) Whenever additional evidence is allowed to be
produced by an Appellate Court, the court shall
record the reason for its admission."
42. The reading of the above provisions makes it clear
that additional evidence can be permitted only where the trial
Court refused to receive such evidence or despite due
diligence the applicant had no knowledge of such evidence or
could not produce the same or the same is the requirement of
Court to decide the matter. It is not the case of the applicant
that the trial Court had rejected such evidence. It is not even
his case that he was unaware of existence of such evidence.
He only says that on account of inadvertence he did not
produce the same and he was not able to secure the copies
inspite of his best efforts. Both such contentions cannot go
together. Either there should be inadvertence on his part in
M.F.A.No.7038/2021
producing the evidence or he should be unable to secure the
said documents despite due diligence.
43. Under Order XLI Rule 27 of CPC inadvertence of
the party is not a ground to receive the additional evidence.
That contemplates non-production despite due diligence. In
the case on hand since 1970 the
mathadhipati/peethadhipati/sarvadhikari/Secretary/GPA of the
mutt are claiming that property was endowed to mutt in the
early part of 15th century. In fact in O.S.No.84/1970 the
documents produced as the Government orders were
disbelieved on the ground that they were spurious documents
and the person who purportedly issued such Government
orders was not in the service of the State. In
O.S.No.5300/1980 on examining the civil lists they were
rejected. Therefore it cannot be said that claimant No.4 was
unaware of such documents or he could not produce the same
despite due diligence.
44. So far as the contention that in spite of best
efforts, he could not secure the certified copies, in the affidavit
M.F.A.No.7038/2021
he does not state when he had applied, why the same were
not issued to him. Nothing is produced to show that he had
applied for those copies when the matter was pending before
the Reference Court. Even in this appeal the present
application was filed belatedly. Except the document at
Sl.No.8, the other documents produced do not show when the
copies were applied, when they were ready and when claimant
No.4 appeared to collect the same. Those documents do not
even indicate that they were the copies of the originals and
they were certified after comparing the same with the
originals. Not even the separate list/index of each document is
produced along with the application mentioning the particulars
of each document and their page initiation. Apart from that
how each document is relevant for adjudication of this matter
is not stated.
45. So far as the alleged judgment dated 29.03.1978
in O.S.No.1923/1975, it was contended that in that suit
accepting the existence of Ramalingeshwar mutt decree for
permanent injunction was granted. As already noticed,
Ex.P31 the judgment in O.S.No.5300/1980 was not disputed.
M.F.A.No.7038/2021
The comparative reading of Ex.P31 and the alleged judgment
in O.S.No.1923/1975 produced as additional evidence show
that both suits were instituted on 19.09.1975 before the I
Munsiff, Bengaluru and the evidence commenced on
13.03.1978. The plaintiff in both suits was Ramalingeshwar
mutt and the defendant was Corporation of City of Bengaluru.
The subject matter of both the suits were the same.
46. The first question is how the same suit could be
simultaneously adjudicated before two Courts viz., one in
O.S.No.1923/1975 and the same one by way of transfer to the
City Civil Court in O.S.No.5300/1980. Secondly, as per the
said judgment, O.S.No.1923/1975 was decreed on
29.03.1978. That means the judgment was delivered within
16 days of commencement of the evidence. The said
judgment produced as additional evidence does not contain
the list of witnesses and exhibits. On the last page of the
document which purportedly certifies the comparison and
verification of the copy with the original does not bear the seal
of the Court which purportedly issued the document. The
above facts indicate that either the document purportedly the
M.F.A.No.7038/2021
judgment in O.S.No.1923/1975 dated 29.03.1978 is forged
one or the plaintiffs played fraud on the Courts by proceeding
before two Courts despite transfer of the matter. Since the
matter is serious one an enquiry needs to be conducted in that
regard. Further as claimant Nos.1 and 2 were not parties to
the alleged proceedings in the purported judgment dated
29.03.1978 in O.S.No.1923/1975 that has no relevance for
the present proceedings. As rightly pointed out by learned
counsel for claimant No.1 and 2 the application is nothing but
an extended arm of procrastination of the proceedings.
For the aforesaid reasons, the appeal and IA No.2/2023
deserve no merit and liable to be dismissed with heavy costs.
Hence the following:
ORDER
The appeal and IA No.2/2023 are hereby dismissed with
costs of Rs.5,00,000/-.
Out of the said costs, Rs.50,000/- each shall be paid to
claimant Nos.1 and 2 and remaining Rs.4,00,000/- shall be
paid to the Karnataka State Legal
Services authority.
M.F.A.No.7038/2021
The said costs shall be deposited before this Court within
four weeks from the date of this order failing which claimant
Nos.1 and 2 and the Member Secretary, KSLSA are entitled to
recover the same as arrears of Land Revenue.
Registrar (Judicial) is hereby requested to place the
matter before Hon'ble The Chief Justice for necessary orders
to hold an enquiry regarding genuineness of the copy of the
judgment in O.S.NO.1923/1975 dated 29.03.1978 passed by
the I Additional I Munsiff, Bengaluru city which is produced as
additional evidence. If the document is found genuine, to hold
an enquiry as to how the parties conducted two suits in
respect of same subject matter before the I Addl. I Munsiff,
Bengaluru and XXVII Addl. City Civil Judge, Bengaluru as per
Ex.P31 and take necessary action against the concerned.
Pending IAs stood disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
AKC
