Karnataka High Court
Balaji Mandir Panch Committee Rajaput ... vs Ananth Buwa S/O Ganapath Buwa Kathikar on 1 April, 2024
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RSA No. 200425 of 2015
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF APRIL, 2024
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR SECOND APPEAL NO.200425/2015(DEC)
BETWEEN:
1. BALAJI MANDIR PANCH COMMITTEE,
RAJAPUT MANDAL, BASAVAKALYAN,
BY ITS PRESIDENT
VEDPAD S/O. VITHAL PRASAD, PANDE.
2. SANJAY SUINGH S/O. BABU SINGH HAZARE,
AGE: MAJOR, OCC: AGRICULTURE & BUSINESS,
R/O: BASAVAKALYAN, SECRETARY, BALAJI MANDIR
PANCH COMMITTEE, RAJAPUT MANDAL,
BASAVAKALYAN.
...APPELLANTS
(BY SRI S.S.HALALLI, ADVOCATE)
AND:
Digitally signed
1. ANANTH BUWA
by MANJANNA
E S/O. GANAPATH BUWA KATHIKAR,
Location: High
Court of SINCE DECEASED BY HIS LRS.
Karnataka
1A. PURSHOTTAM S/O. ANANTH BUWA,
AGE: 62 YEARS, OCC: PUJARI,
R/O: H.NO.40-59 GOSWAMY GALLI,
LAXMI VENKATESH SANSATHAN,
SHIVAJI CHOWK, BASAVAKALYAN,
DIST: BIDAR - 585 327.
1B. SRINIVAS S/O. ANANTH BUWA,
AGE: 58 YEARS, OCC: PUJARI,
R/O: H.NO.40-59 GOSWAMY GALLI,
LAXMI VENKATESH SANSATHAN SHIVAJI
CHOWK, BASAVAKALYAN,
DIST: BIDAR - 585 327.
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RSA No. 200425 of 2015
1C. GANESH S/O. ANANTH BUWA,
AGE: 58 YEARS, OCC: PUJARI,
R/O: H.NO.40-59 GOSWAMY GALLI,
LAXMI VENKATESH SANSATHAN SHIVAJI
CHOWK, BASAVAKALYAN,
DIST: BIDAR - 585 325.
1D. SHOBHA D/O. ANANTH BUWA,
AGE: 58 YEARS, OCC: PUJARI,
R/O: H.NO.40 - 59 GOSWAMY GALLI,
LAXMI VENKATESH SANSATHAN SHIVAJI
CHOWK, BASAVAKALYAN,
DIST: BIDAR - 585 327.
2. RAJPAL S/O. VITTAL PRASAD PANDE
DIED THROUGH LRS.
2A. RESHMA D/O. RAJPAL PANDE,
AGE: 38 YEARS, OCC: HOUSEHOLD.
2B. SEEMA D/O. RAJPAL PANDE,
AGE: 34 YEARS,
OCC: HOUSEHOLD AND BUSINESS.
BOTH R/O: BASAVAKALYAN,
DIST: BIDAR.
3. DHONDU PRASAD
DIED THROUGH LRS.
3A. ROOPABAI D/O. DHONDU PRASAD,
AGE: 62 YRS, OCC: HOUSEHOLD.
3B. KAVITABAI W/O. DHONDU PRASAD,
AGE: 44 YRS, OCC: HOUSEHOLD.
3C. SUNIL S/O. DHONDU PRASAD,
AGE: 40 YRS, OCC: AGRICULTURE.
3D. VISHAL S/O. DHONDU PRASAD,
AGE: 37 YRS, OCC: AGRICULTURE.
3E. SUSHIL S/O. DHONDU PRASAD,
AGE: 35 YRS, OCC: AGRICULTURE.
ALL ARE R/O: BASAVAKALYAN,
DIST: BIDAR.
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RSA No. 200425 of 2015
4. UDAYBANU S/O SHIVRAMJI,
DIED LRS THROUGH.
4A. VEDPRAKASH S/O. DHONDU PRASAD
AGE: 37 YRS, OCC: HOUSEHOLD.
4B. ANANT TRIDEVI
D/O. DHONDU PRASAD,
AGE: MAJOR, OCCF: HOUSEHOLD.
4C. KRISHNA MISHRA
D/O. DHONDU PRASAD,
AGE: MAJOR, OCC: HOUSEHOLD.
4D. KAPILA UPADHYA
D/O. DHONDU PRASAD,
AGE: MAJOR, OCC: HOUSEHOLD.
ALL ARE R/O: BASAVAKALYAN,
DIST: BIDAR.
...RESPONDENTS
[BY SRI AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI VARUN PATIL AND SRI SANDEEP PATIL,
ADVOCATE FOR R1(A TO D);
SRI MALLIKARJUN C. BASAREDDY, ADVOCATE FOR R2;
SERVICE OF NOTICE R2(A), R4(B TO D) IS
DISPENSED WITH (V/O DATED 08.03.2017);
R2(B), R3(A TO E), R4(A) ARE SERVED]
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 30.09.2015, PASSED IN
R.A.No.45/2013 ON THE FILE OF THE IIND ADDL. DISTRICT AND
SESSIONS COURT, BIDAR SITTING AT-BASAVAKALAYN, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED 07.02.2013, PASSED IN O.S.NO.55/1993 ON THE FILE OF
THE SENIOR CIVIL JUDGE AT-BASAVAKALYAN AND ETC.,
THIS APPEAL COMING ON FOR FURTHER HEARING, HAVING
BEEN HEARD AND RESERVED ON 06.03.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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RSA No. 200425 of 2015
JUDGMENT
Defendant No.1 in O.S.No.55/1993 on the file of the
learned Senior Civil Judge at Basavakalyan (hereinafter
referred to as 'Trial Court' for brevity) is impugning the
common judgment and decree dated 07.02.2013 passed along
with O.S.No.78/1993, decreeing the suit O.S.No.55/1993 with
costs and declaring that plaintiff is the owner in possession of
the suit property and consequently directing the defendants to
hand over the vacant possession of the same, excluding the
temple standing therein, within two months from the date of
the decree and also for mesne profits, with a direction to the
revenue authorities to enter the name of the plaintiff in the
revenue records, which was confirmed in R.A.No.45/2013 on
the file of learned II Additional District and Sessions Court,
Bidar Sitting at Basavakalyan (hereinafter referred to as the
"First Appellate Court" for brevity) vide common judgment
dated 30.09.2015 passed along with R.A.No.40/2013, by
dismissing the appeal.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
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3. Brief facts of the case are that, the plaintiff filed the
suit O.S.No.171/1989, which was renumbered as
O.S.No.55/1993, against defendant Nos.1 to 39, seeking
declaration of his title, for possession and mesne profits in
respect of the land measuring 1.18 acres out of 4.16 acres in
Sy.No.156 of Basavakalyan (hereinafter referred to as 'suit
property' for brevity).
4. It is contended by the plaintiff that the suit property
is in actual possession of defendant Nos.7 to 39. The plaintiff
being the Kartha of the joint family consisting of himself, his
brothers and mother filed the suit in such capacity as Kartha.
It is stated that defendant No.1 is not a registered society or
trust. It is not a juristic person, but, however, defendant Nos.2
to 6 are claiming to be the office bearers of defendant No.1.
The other defendants are in actual possession and enjoyment
of the suit property as shown in the sketch appended to the
plaint, on lease from defendant Nos.1 to 6.
5. It is contended that as per survey settlement of the
village Basavakalyan, survey No.156 was measuring 4.16
acres. Dasayya was declared to be the pattadar and holder of
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the said land. He was also known as Hanumadas and he was in
possession and enjoyment of the entire 4.16 acres of land in
Survey No.156, which includes the Balaji temple. Dasayya @
Hanumandas died in the year 1325 Fasli. He had no male
issues, but, he was living with his only daughter Yenkubai.
Said Yenkubai had a son by name Narasayya, who was adopted
by Dasayya. Narasayya was also the disciple of Dasayya and
therefore, he was called by name Narsingdas. After the death
of Dasayya, Narsingdas became the owner of the entire extent
of land in survey No.156 including the Balaji temple. He was
performing Pooja in the temple and was in possession of the
property. Later, Narsingdas sold half of the land in survey
No.156 in favour of Manohar Buwa, who was the paternal
grandfather of the plaintiff. Since sale of the land was only for
consideration of Rs.45/-, the sale deed was not registered.
However, possession of the said half portion was handed over
by Narsingdas in favour of the purchaser Manohar Buwa and he
came in possession and enjoyment of the same.
6. It is further contended that subsequently on 7th Dai
1342 Fasli, Narsingdas made an application to the Assistant
Nazim of Court of Wards, Division Kalyani i.e., present
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Basavakalyan, to grant Shikmi to the extent of half of survey
No.156 of Basavakalyan to Manohar Buwa. He asserted that the
said half portion of the land was sold in favour of Manohar
Buwa and possession was handed over to him. Accordingly,
Manohar Buwa also made an application on 07.02.1342 Fasli
for grant of Shikmi. On the basis of such joint application by
the seller and the purchaser and on verification of the facts by
the Assistant Nazim, Shikmi was granted as per the order dated
9.02.1342 Fasli to the extent of half portion of the land in
favour of Manohar Buwa and his name came to be entered in
the revenue records.
7. It is stated that Narasayya sold the other half
portion of the land along with the Balaji temple to Manohar
Buwa, under the registered sale deed dated 23.02.1342 Fasli.
However, the land in question was described as bearing survey
No.152. Therefore, the correction deed was executed by the
vendor describing the property as half portion in survey
No.156. Thus, Manohar Buwa became the owner in possession
of the entire extent of Survey No.156 of Basavakalyan.
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8. The said Manohar Buwa filed the suit
O.S.No.22/1342 Fasli against Narsayya @ Narsingdas for
declaration of patta in the Court of Munsiff at Basavakalyan.
The said suit was decreed on 25.03.1342 Fasli and accordingly,
the name of Manohar Buwa was came to be mutated in the
revenue records. He continued to be in possession of the
property including the Balaji temple. He was paying the land
revenue and was performing Pooja in the temple.
9. It is contended that Manohar Buwa died in 1349
Fasli. Ganpath Buwa was the son of Manohar Buwa and he
succeeded to the property. His name was mutated in the
revenue records. In the year 1959 an area measuring 2.38
acres in Survey No.156 of Basavakalyan was acquired by the
Government for establishment of market yard. It was only
Ganpath Buwa, who claimed compensation for the said land
and the award was passed in his name on 29.03.1959. A
survey was conducted to separate 2.38 acres of land from the
remaining extent of land, which is described as the suit
property and the boundaries were fixed. Thus, the suit property
measuring 1.18 acres in survey No.156 along with Balaji
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temple remained in possession of Ganpath Buwa, who is the
father of the plaintiff.
10. On 14.02.1964, said Ganpath Buwa filed the suit for
possession in O.S.No.29/01/1964 against Premchand and
others before the Munsiff Court at Humnabad. The defendants
in the said suit filed the written statement contending that
Balaji temple was belonging to Rajput, Marvadi and Vaishya
communities and they are in possession of the same. However,
they made it clear that they are not claiming any right on the
land bearing survey No.156, but they claim only right of
worship in the temple, to have an access to the temple and to
draw the water from the Well situated therein. The said suit
came to be dismissed on the ground that the suit which was
under Section 9 (new Section 6) of the Specific Relief Act was
filed beyond six months of the dispossession. During the
pendency of the suit, the father of the plaintiff died and his
legal representatives including the plaintiff were brought on
record. After the death of Ganpath Buwa, the patta in respect
of the suit property was changed in the name of the plaintiff
and he continued to be in possession of the same, excluding
the Balaji temple.
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11. It is contended that the father of the plaintiff was
dispossessed from the temple, but he continued to be in
possession of the remaining land excluding the area on which
the temple is built. After the death of Ganpath Buwa, the
plaintiff is in possession and enjoyment of the same. It is
contended that since Rajpal, Vedpal and Rahimuddin started
interfering with the possession of the plaintiff on the suit
property, he filed the suit O.S.No.127/1978 before the Munsiff
Court at Basavakalyan for grant of perpetual injunction. The
defendants in the said suit have filed their written statement
stating that defendant No.2 therein had taken the contract for
construction of a building known as Raita Bhavan on behalf of
the Market Committee of Basavakalyan on the property that
was acquired by the Agricultural Produce Market Committee
from Taluka Municipal Council (TMC), Basavakalyan. However,
it was stated that Rajput community as a whole was in adverse
possession of 1.18 acres of land excluding the temple and it
has perfected its title. The plea of res-judicata was also raised
as the earlier suit filed by the father of the plaintiff was came to
be dismissed. Considering the same, the suit O.S.No.127/1978
was came to be dismissed on 14.09.1979 accepting the plea of
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res-judicata. The appeal filed against the said judgment in
R.A.No.98/1979 was came to be dismissed. The second appeal
before this Court in R.S.A.No.422/1982 was also came to be
dismissed.
12. On 27.10.1975, the self styled Secretary of Balaji
temple gave an application to the Village Accountant,
Basavakalyan for mutating the land measuring 1.18 acres in
Survey No.156 in the name of Balaji temple. The plaintiff filed
his objection. The Tahsildar after holding an enquiry rejected
the application to mutate the name of the Secretary of Balaji
temple. The appeal against the said order was allowed by the
Assistant Commissioner vide order dated 30.06.1982.
Accordingly, the name of the Secretary of Balaji temple was
mutated in the revenue records. The temporary injunction
granted in favour of the plaintiff in O.S.No.127/1978 was
vacated and thereafter, the defendants have taken the
possession of the suit property illegally by dispossessing the
plaintiff without any right. Therefore, the plaintiff filed the suit
for declaration and for possession along with mesne profits,
since the title of the plaintiff was denied and defendants have
came in possession of the same.
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13. It is contended that the suit of the plaintiff for
declaration and for possession was within 12 years from the
date of his dispossession i.e., from 24.10.1978. Even though
the earlier suit O.S.No.29.01.1964 was came to be dismissed, it
will not operate as res-judicata as the same was filed under
Section 6 of the Specific Relief Act and since the defendants
have not claimed adverse possession of the property in the said
suit, the title and the possession of the property was never in
issue. The suit O.S.No.127/1978 was for bare injunction.
Therefore, a comprehensive suit for declaration and for
possession is filed. It is stated that the cause of action to file
the suit arose on 25.11.1978 when the plaintiff was
dispossessed. Accordingly, the plaintiff prayed for declaration
that he is the owner of the suit property, a decree for
possession of the suit property, mesne profits from the
defendants and for costs.
14. Defendant Nos.1 to 4 and 6 have filed their written
statement denying the contentions of the plaintiff. It is
contended that the land in Survey No.156 is the Inam land and
is an endowed property. There are various shop premises which
are in occupation of lessees under the deity Sri Balaji,
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represented by defendant No.1. The temple is an endowment
temple and it is the owner of the suit property. It is entered in
the endowment register and approved by the Government of
Karnataka. The Committee for managing the temple consists of
eleven persons including the revenue officials. Defendant No.2
is the President and defendant No.3 is the Vice President,
defendant No.4 is the Secretary of the said Committee and are
managing the affairs of the temple. The suit property consists
of temple, buildings, trees, samadhies and the open space.
Defendant No.1 is in continuous use and enjoyment of the suit
property, to the knowledge of the plaintiff, for more than 30
years.
15. It is contended that Dasayya was not the owner of
the entire extent of land in survey No.156, including the
temple. The contention of the plaintiff that Hanumandas is also
known as Dasayya or that he adopted Narasayya or that the
said Narasayya was also called as Narasinghdas are all denied.
It is stated that Narasayya @ Narsingdas was only a nominal
Poojari appointed by the Committee, which was managing the
Balaji temple. It is denied that Narasayya @ Narsingdas was
having any right over the land in Survey No.156 and the
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temple. It is denied that Narasayya sold half portion in survey
No.156 of Basavakalyan in favour of Manohar Buwa in 1341
Fasli for Rs.45/- or he was put in possession of the same. The
property referred to by the plaintiff could not be identified,
since there is no document to that effect. All other allegations
made in the plaint with regard to the ownership of Manohar
Buwa and thereafter by the plaintiff are all denied.
16. It is contended that since the right over the land
and the temple was vested in defendant No.1 as Inam and
endowed property, it could not be divested under any
circumstance. It is admitted that 2.38 acres of land in survey
No.156 of Basavakalyan was acquired by the Government for
TMC, Basavakalyan for establishing the market. Since the name
of Ganpath Buwa was found in record of rights wrongly, the
compensation was paid to him, but, it will not give any right to
plaintiff over the suit property.
17. It is contended that the remaining extent of the
land after acquisition was never measured nor boundaries were
fixed, but the defendants continued to be in possession and
enjoyment of 1.18 acres of land, including the temple. The
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plaintiff was never in possession and enjoyment of the same
and he was not having any right to seek declaration. It is
stated that in the suit O.S.No.29/1/1964 filed by the father of
the plaintiff before the Munsiff Court at Humnabad, the
defendants therein have taken a specific defence that the
property is the endowed property and they never admitted the
title of the plaintiff or his father at any point of time. They
asserted the right of the deity - Sri Balaji over the suit property
and they have also claimed adverse possession. The Committee
is in actual possession and enjoyment of the suit property. All
the devotees of Balaji temple are visiting the same and have
the right to worship.
18. It is contended that in O.S.No.29/1/1964, the
plaintiff was examined as a witness and he admitted his
dispossession from the suit property prior to 1962. Under such
circumstances, the present suit is not maintainable. When in
the suit O.S.No.29/1/1964, the plaintiff admitted that he was
not in possession of the property, it is not made clear as to
when the plaintiff came in possession of the property to be
dispossessed again. The judgment and decree in
O.S.No.29/1/1964 dismissing the suit of the plaintiff has
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reached finality, as even the appeals were dismissed. The
plaintiff and his predecessors in the interest were not in
possession and enjoyment of the temple or the suit property in
any capacity. Even after admitting that the plaintiff was not in
possession of the property, the suit O.S.No.127/1978 was
came to be filed seeking perpetual injunction. The said suit was
came to be dismissed and the appeals were also came to be
dismissed. The Committee for management of the temple i.e.,
defendant No.1 had always asserted title of the deity to the
knowledge of the plaintiff and had enjoyed the possession of
the property openly. Therefore, the suit of the plaintiff is barred
by principles of res-judicata.
19. It is contended that the plaintiff has never
challenged the order passed by the Deputy Commissioner
during 1986-87, rejecting the claim of the plaintiff and
confirming the order in respect of the suit property that it is an
endowed property and it does not belong to any individual. On
that count also, the suit of the plaintiff is not maintainable.
20. It is denied that the defendants have admitted the
title of the plaintiff or his father at any point of time. It is
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contended that the entire land measuring 4.16 acres in Survey
No.156 including the Balaji temple, trees, Well, Samadhies etc.
was never the property of any individual. The Archak or Poojari
in the temple was not having any proprietary right. Even if he
misuses his capacity and executes any document selling the
property, the purchaser will not get any title. In any case, the
total extent of land that was sold or transferred in favour of
father of the plaintiff is not more than 2.38 acres in Survey
No.156 of Basavakalyan. On the basis of wrong entries found
in the revenue records, the compensation was obtained in
respect of such 2.38 acres of land.
21. It is also contended that the suit property
measuring 1.18 acres of land i.e., the property excluding the
acquired land is a pot-kharab, where the temple is situated.
The plaintiff cannot seek any right, title or interest over the
same. Hence, prayed for dismissal of the suit with costs.
22. The other defendants have filed the memo adopting
the written statement filed by defendant Nos.1 to 4 and 6.
23. The plaintiff filed the rejoinder denying the
contentions taken by the defendants in their written statement.
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It is denied that the suit property is the Inam land or it was an
endowed property. It is contended that the suit property is the
patta land as declared by the Civil Court in O.S.No.22/1342
Fasli on the file of Civil Court at Basavakalyan in the suit
between Manohar Buwa and Narasayya, which was decreed on
25.03.1342 Fasli. Accordingly, the name of Manohar Buwa was
came to be entered in the revenue records. The defendants
have created documents to show that the property is the
endowed property and it was gazetted. Such concocted
document relied on in support of the contention taken by the
defendants is after filing of the suit by the plaintiff.
24. It is denied that defendant No.1 is the owner of the
suit property at any point of time. It is further stated that the
defendants in O.S.No.29/1/1964 before the Munsiff Court at
Humnabad never denied the title of the plaintiff nor claimed
title in themselves. Therefore, the defendants are estopped
from seeking inconsistent pleas.
25. It is stated that the suit property bearing Survey
No.156 measuring 1.18 acres in Basavakalyan is bounded by
East - Gunj, Basavakalyan, West - Government road leading
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Basavakalyan to Sastapur, North - land of Khaja Begum Moin
Begum D/o. Mohd. Nawaz and South - remaining land Survey
No.156 of the plaintiff, now in the occupation of APMC.
26. It is contended that the suit property is neither the
Inam land nor the endowed property belonging to the deity, but
the land in question is purchased by the father of the plaintiff
and Balaji temple is a private temple, which is the property that
was purchased under the registered sale deed. The defendants
have never challenged the said sale deed, even in the earlier
suit O.S.No.22/1342 Fasli before the Civil Court at
Basavakalyan. The revenue records stood in the name of the
plaintiff since more than 60 years and the same cannot be
ignored.
27. The plaintiff submitted that the father of the
plaintiff had filed suit O.S.No.29/1/1964 before the Munsiff
Court at Humnabad against defendant Nos.2 and 3 and others
for recovery of possession of Balaji temple along with
surrounding land. The defendants have filed their written
statement, but, they never denied the ownership of the father
of the plaintiff over the suit property. Now the defendants are
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taking inconsistent stand in respect of the same. The said suit
was came to be dismissed only on the ground that the same
was filed after expiry of six months, since it was filed under
Section 9 of the Specific Relief Act, which was prevailing then.
It was not the suit for possession based on title and it was
based on previous possession. The suit O.S.No.127/1978 was
only for perpetual injunction. Therefore, the nature of the suits
are quite different with one another and the principle of res-
judicata is not applicable to the facts of the case. The suit for
perpetual injunction filed earlier in O.S.No.127/1978 cannot be
treated as res-judicata under any circumstance.
28. It is contended that the Assistant Commissioner had
no authority and no basis to enter the name of Sri Balaji temple
in the revenue records, which is contrary to the decree in
O.S.No.22/1342 Fasli on the file of the Civil Court at
Basavakalyan. It amounts to contempt of Court. It is further
contended that the plea of adverse possession raised by
defendant No.2 taken in O.S.No.127/1978 was given a go-by to
claim title. Therefore, the defendants have failed in their
attempt by taking inconsistent pleas.
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29. The plaintiff has categorically stated that he was in
possession of the suit property for more than 30 years, but he
was dispossessed only after dismissal of I.A.1 on 24.10.1978 in
O.S.No.127/1978 before the Munsiff Court at Basavakalyan and
the defendants have taken the possession of the property
illegally. When the defendants have no title, they cannot
justify their possession contrary to their pleadings in the earlier
suit. Therefore, the plaintiff prayed for rejecting the claim of
the defendants in the written statement and decreeing the suit
as prayed for.
30. On the basis of these pleadings, following issues,
re-casted issue No.5 and additional issue No.1 were came to be
framed by the Trial Court:
1) Whether the plaintiff proves that Dasayya was
owner in possession of suit land and that
subsequently Narsayya succeeded?
2) Whether the plaintiff further proves that Narasayya
sold suit land to Manohar Buwwa (by two different
sale deeds) and Manohar Buwwa become the owner
and after his death Ganpathi Buwwa succeeded to
suit property?
3) Whether plaintiff further proves that Ganpath
Buwwa received acquisition compensation?
4) Whether plaintiff further proves that after
acquisition land measuring 1 acre 18 guntas
remained with him?
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5) Whether plaintiff prove that Rajput community as a
whole was in adverse possession and that it
perfected its title by prescription?
6) Whether plaintiff is entitled to declaration that he is
owner?
7) Whether plaintiff is entitled to possession?
8) Whether plaintiff is entitled to mesne profits?
9) Whether suit is barred by time?
10) Whether suit is hit by principles of res-judicata?
11) Whether suit is bad for non joinder of necessary
party?
12) Whether defendants are entitled to costs of
Rs.10,000/-?
13) What order? What decree?
Issue No.5 is recasted as under:
Whether the concerned defendant/s have/has
perfected his/their title over the suit property by way of
adverse possession?
Additional issue:
Whether the Civil Court has jurisdiction to try the
suit?"
31. To prove his contentions, the plaintiff examined
PWs.1 to 6 and got marked Exs.P1 to P42. The defendants got
examined DWs.1 to 3 and got marked Exs.D1 to D65 in support
of their defence. Exs.C1 to C4 were also came to be marked.
32. The suit O.S.No.55/1993 was clubbed with
O.S.No.78/1993, which was filed by the plaintiff against the
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TMC and APMC, Basavakalyan seeking declaration of his title,
for injunction and for mesne profits. The Trial Court, after
taking into consideration all these materials on record passed a
common judgment answering issue Nos.1 to 4, 6 to 8 and
additional issue No.1 in the affirmative and re-casted issue
No.5 and issue Nos.9 to 12 were in the negative and decreed
the suit of the plaintiff, declaring that he is the owner of the
suit property and directed the defendants to handover the
vacant possession of suit property, excluding the temple area
within two months from the date of the decree. It is also held
that the defendants are liable to pay mesne profits to be
calculated in a separate proceeding. The revenue authorities
were directed to enter the name of the plaintiff in the revenue
records, while dismissing the suit O.S.No.78/1993.
33. Being aggrieved by the same, defendant Nos.1 and
4 have preferred R.A.No.45/2013. The First Appellate Court
dismissed the said appeal and being aggrieved by the same,
defendant No.1 is before this Court.
34. Heard learned counsel Sri S.S.Halalli for the
appellant/defendant No.1, learned Senior Advocate Sri Ameet
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Kumar Deshpande for Sri Varun Patil and Sri Sandeep Patil,
learned counsel for respondent Nos.1(a) to 1(d) and learned
counsel Sri Mallikarjun C. Basareddy for respondent No.2.
35. Learned counsel for the appellant submitted that
the contention of the plaintiff that he is the absolute owner of
the suit property, is not proved. Even though the plaintiff is
placing reliance on Ex.C.2, only half portion out of 2.38 acres in
survey No.156 was purchased under the same, which
apparently excluding the suit property measuring 1.18 acres.
Learned counsel further submitted that as per Ex.P.14 dated
23.02.1942 Fasli, only remaining half portion in the land
measuring 2.38 acres in survey No.156 was purchased and
thus it is clear that the plaintiff can lay his hands only for 2.38
acres in survey No.156 and not on the suit property, which is
not the subject matter of either Ex.C.2 or Ex.P.14. Learned
counsel further submitted that the recitals in Ex.C.2 and
Ex.P.14 make it very clear that what was purchased by the
plaintiff under these two sale deeds is only 2.38 acres of land
and nothing more than that. Under Ex.C.2 only 1.19 acres i.e,
half of 2.38 acres was purchased and under Ex.P.14 the
remaining half portion i.e., 1.18 acres was purchased. There is
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no reference to the remaining 1.18 acres of land which is
classified as pot-kharab and notified as endowment property, in
either of the sale deed. Under such circumstances, both the
courts have committed an error in decreeing the suit of the
plaintiff.
36. It is contended that the suit O.S.No.22/1342 Fasli
was filed by Manohar Buwa, the father of the plaintiff in respect
of said 2.38 acres of land, but, the present suit is in respect of
the suit property i.e., measuring 1.18 acres. Though the
contention of the plaintiff is that he had purchased the entire
4.16 acres of land in Survey No.156, the same is not supported
by any document. The contention of the plaintiff cannot be
accepted. Ex.C.2, P.14A, P.13A and Ex.D.4 are the material
documents which falsify the contention of the plaintiff and
support the contention of the defendants.
37. Learned counsel further submitted that the suit
property is the Inam land and therefore, even the vendor under
the sale deed was not the owner. The temple which was the
absolute owner of the suit property is managed by the
Committee. Therefore, he contended that the defendants never
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claimed any right, title or interest in respect of 2.38 acres of
land, covered under two sale deeds, relied on by the plaintiff.
But, the plaintiff is not having any right, title or interest over
the suit property.
38. Learned counsel further submitted that the suit
property is declared as endowment property but the
Government is not a party to the suit. As per Regulation Nos.33
and 34 of the Hyderabad Endowment Regulations, the suit is
not maintainable. Learned counsel submitted that way back in
the year 1989 Government notified the temple as an
endowment temple. Even though the plaintiff is claiming right
over the property, which is already declared as endowment
property, the Government is not arrayed as one of the
defendants. Since it is an endowment temple declared as such
under Exs.D25 and D26 dated 06.07.1989 and 07.08.1989, the
Committee was constituted which is managing the affairs of the
temple. A specific contention was raised in the written
statement that the suit is bad for non joinder of necessary
party i.e., the Government.
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39. Learned counsel further submitted that as per
Ex.D.20 - the report of ADLR, the suit property measuring 1.18
acres in Survey No.156 of Basavakalyan is pot-kharab-(b) and
Mafi Inam land, which is not liable for land revenue. As per the
gazette notification dated 22.09.1989, the Balaji temple is
notified as endowed property. Even though the said notification
was challenged by the plaintiff by filing writ petition, the same
was came to be dismissed and even the Special Leave Appeal
preferred before the Apex Court was also dismissed.
40. Learned counsel for the appellant further contended
that as per Exs.D64, D65 and the order dated 30.06.1982 the
Assistant Commissioner declared that 1.18 acres of land in
Sy.No.156 i.e., the suit property is pot-kharab and it belongs to
general public. The suit property is declared as pot-kharab way
back in the year 1914. As per Rule 21 of the KLR Rules the
classification is made and it is not assessed to revenue.
Therefore, as per Rule 21 (2) (b) of the KLR Rules, it was
assigned for public purpose. It is substantiated by the fact that
a temple was built on the said portion of the land, there exist
Samadhies, trees, Well, etc., itself disclose that it was
dedicated for public purpose. In O.S.No.29/1/1964 neither the
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Balaji temple nor the Committee managing its affairs were
parties to the suit. But the suit was filed against individual
defendants who were not claiming any right personally over the
suit property. Now defendant No.1 is Balaji temple, represented
by the Committee. Under such circumstances, the plaintiff is
not entitled to seek declaration of his title over the pot-kharab
land against the defendants.
41. Learned counsel further submitted that admittedly
the portion of the land in Sy.No.156 of Basavakalyan was
acquired under the notification for establishing market
Committee. The plaintiff got the compensation in respect of
2.38 acres of land, excluding 1.18 acres of land which was the
pot- kharab.
42. Learned counsel further submitted that as per
Ex.D.4 the suit O.S.No.29/1/1964 was filed by the plaintiff on
14.02.1964 to seek possession of the suit property from the
defendants, with a specific pleading that he was dispossessed
on 12.07.1962. But the said suit was came to be dismissed as
barred by limitation and relief for possession was denied. The
said judgment passed by the Trial Court reached finality.
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Inspite of that he filed O.S.No.127/1978 for perpetual
injunction. The plaintiff never stated as to when he regained
the possession of the suit property. Therefore, the said suit was
also came to be dismissed. The said judgment and decree also
reached finality. After that, the plaintiff has filed the present
suit in O.S.No.171/1989 which was renumbered as
O.S.No.55/1993, seeking declaration of his title and for
recovery of possession and mesne profits against Balaji temple.
The said suit was came to be decreed by the Trial Court and
also by the First Appellate Court ignoring all these facts and
circumstances. The suit of the plaintiff is hopelessly barred by
limitation, which is also hit by principles of res-judicata. The
plaintiff has not proved his possession over the suit property.
43. Learned counsel placed reliance on the decision of
the Hon'ble Apex Court in Pramod Kumar and another vs.
Zalak Singh and others1 in support of his contention that in
view of the finding in the suit O.S.No.29/1/1964 and
O.S.No.127/1978 the plaintiff is barred from instituting a suit
afresh in respect of the claim which is already rejected by the
Court.
(2019) 6 SCC 621
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44. Learned counsel further submitted that since the
substantial questions of law regarding the law of limitation and
principles of res-judicata are not framed, a memo in that
regard is filed and therefore prayed for framing additional
substantial questions of law and to allow the appeal in the
interest of justice.
45. Per contra, learned Senior Advocate for the
respondent - plaintiff opposing the appeal, submitted that half
portion of Sy.No.156 of Basavakalyan was purchased by the
grandfather of the plaintiff as per Ex.C.2 which is in Urdu
language and Ex.C.2(a) is its translation. This sale deed under
which half portion was purchased for Rs.45/- only and therefore
it does not require registration. On the basis of the said sale
deed the vendor himself applied for mutation of the name of
the predecessor in interest of the plaintiff. The possession was
also handed over in favour of the purchaser. Similarly, under
Ex.P.14 the remaining half portion of the property was
purchased and patta was granted in the name of the
grandfather of the plaintiff i.e., Manohar Buwa. Even though
the sale deed was initially in respect of Sy.No.152, a
rectification deed was executed as per Ex.P.19 and the
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translation is as per Ex.P.19(a), correcting the survey number
as Sy.No.156. In the sale deed there is reference to the earlier
sale deed Ex.C.2. The recitals found in these two sale deeds
make it clear that the entire property in Sy.No.156, totally
measuring 4.16 acres was purchased in two bits i.e., 2.38 acres
and 1.18 acres. Therefore, the contention of the defendants
that only 2.38 acres of land in Sy.No.156 was purchased under
these two sale deeds, cannot be accepted.
46. Learned Senior Advocate submitted that it is for the
first time in the second appeal new stand is taken by the
appellant that the sale deeds Exs.C.2 and P.14 are only in
respect of 2.38 acres of land and not in respect of the suit
property. No such defence was raised in the written statement
nor there was any evidence led in that regard. The Trial Court
has also not framed any issue to that effect. Therefore, for the
first time such plea could not be raised before this Court. Even
otherwise, learned Senior Advocate submitted that the recitals
in Ex.C.2 refers to the subject matter of the sale deed as half of
the land measuring 2.38 acres i.e., 1.19 acres which is the
subject matter of the sale deed. Therefore, the remaining
extent of the land in Sy.No.156 is 2.38 acres. That is the
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reason why in the second sale deed Ex.P.14, there is reference
to the remaining 2.38 acres of land in Sy.No.156 and it is
stated that the remaining entire 2.38 acres of land is sold along
with the temple and the surrounding land. The recitals in both
the sale deeds are very clear and there is no room for any
confusion. Therefore, such contention raised for the first time
before this Court is liable to be rejected.
47. Learned Senior Advocate submitted that the
interpretation of the recitals in two sale deeds on which the
plaintiff is relying on is purely a question of fact. The Trial
Court and the First Appellate Court, on appreciation and re-
appreciation of the oral and documentary evidence, recorded
the concurrent findings. Under such circumstances, no
substantial question of law would arise for consideration of this
Court.
48. Learned Senior Advocate further submitted that the
grandfather of the plaintiff filed O.S.No.29/1/1964 against few
of the defendants seeking possession of the property. Ex.D.4 is
the judgment in the said suit and Ex.P.21 is the written
statement filed by the defendants. A specific defence was taken
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by the defendants in the written statement restricting their
claim only to have an access to the temple and right to perform
pooja, along with right to draw water from the Well existing
therein. It is made clear that the defendants are not claiming
any right over the land in question. Similarly, the defendants
have also made clear that they are not the owners of either
temple or the deity. But now the defendants have taken
inconsistent stand.
49. Learned Senior Advocate further contended that
Ex.P.24 is the deposition of Premchand in O.S.No.29/1/1964.
He represented the temple and the Committee as its President.
He categorically stated that he is not claiming any right over
the land but his claim is restricted to the right to access to the
temple, worship the deity and to draw the water from the Well.
Therefore, it is clear that the plaintiff was in possession of the
suit property without any disturbance.
50. Learned Senior Advocate submitted that one
Dasayya was the poojari of the temple and he was the owner of
the suit land. Narasingdas was his disciple and after death of
Dasayya it was Narasingdas who sold the property in
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Sy.No.156 in two bits in favour of the grandfather of the
plaintiff - Manohar Buwa, under two separate sale deeds.
Ex.P.25 is the deposition of the witness Venkoba where there is
reference to the said Narasingdas who is referred to as
Narasing Dasayya . The patta of the land stood in the name of
Narasayya i.e., vendor of Sy.No.156 under the sale deed.
51. Learned Senior Advocate submitted that it is for the
first time on 04.03.1980 as per Ex.D.14 the Tahasildar passed
an order under the guise of correcting column No.12/2
mentioning the name of the President of the Balaji Committee
of Rajput Mandal, Basavakalyan. Such correction had no basis.
No notice was issued to the plaintiff. Even in this order there is
no reference to pot-kharab. Therefore, the defence taken by
the defendants that the property was either pot-kharab or inam
land or endowment property is not probablized. On the other
hand, there are sufficient materials to prove that the land in
question is the patta land and the plaintiff is the owner of the
same. He further submitted that there was no issue raised
before the Trial Court about the nature of the suit property. It
was not in dispute as to whether the property was patta land or
it was a pot-kharab. For the first time before this Court such
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contention was raised. When concurrent findings of facts were
recorded by the Trial Court as well as the First Appellate Court
and the scope of second appeal under Section 100 of CPC is
very limited, the defendants cannot take altogether a new
defence and the same cannot be considered by this Court.
52. Learned Senior Advocate further submitted that
even though the notification was published on 20.06.1989,
declaring that the property is an endowment property as per
Exs.D.24, the same was never brought to the notice of the
plaintiff. Subsequently the Government cancelled the same as
per order dated 20.10.2000. The defendant preferred writ
petition before this Court in W.P.No.9991/2001. The said writ
petition was came to be allowed by this Court vide order dated
13.03.2006 and remanded the matter to the Government to
consider it afresh after giving notice to all the parties concerned
and to pass appropriate orders. The Government again restored
its order that the property is the endowment property. The
same was challenged by the plaintiff in W.P.Nos.82845-
846/2011. The said writ petitions were came to be dismissed
vide order dated 16.04.2013. The plaintiff has preferred
W.A.Nos.50365-366/2013. The said writ appeals were came to
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be dismissed holding that the question as to whether the
property is the endowment property or not will be subject to
the decision of the Civil Court. However, plaintiff challenged the
said order by filing Special Leave to Appeal before the Hon'ble
Apex Court in SLA.Nos.2683-2684/2015. The Special Leave
Appeals were came to be dismissed as per order dated
09.02.2015 making it clear that the order passed by the High
Court in the writ appeals and the dismissal of the special leave
to appeals will not effect the merits of the appeal preferred
against the decree in favour of the petitioners therein in
O.S.No.55/1993 which was pending consideration. Therefore,
the Hon'ble Apex Court referred to the present appeal and
made it very clear that the decision of the civil court in this
appeal will decide as to whether the property is the endowment
property or not. Since there are absolutely no materials to
form such an opinion that the property is the endowment
property, the Trial Court and the First Appellate Court rightly
decreed the suit. He further submitted that the interest of the
Government is now represented by the appellants who are
challenging the claim of the plaintiff. Under such circumstances,
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it cannot be held that the suit of the plaintiff is bad for any
reason.
53. He further submitted that in O.S.No.29/1/1964, the
predecessor in title of the plaintiff sought for possession of
Balaji temple along with the land measuring 1.18 acres in
Sy.No.156. The copy of the plaint is produced as per Ex.D.1.
All the documents produced before the Court disclose that the
land in question was a patta land, which was not either inam
land or pot-kharab. There is absolutely no document to prove
the contention of the defendants that it was an inam land. The
revenue records also do not refer to the land as pot-kharab. In
Ex.D.12 the record of right for the year 1988-89, the entire
property measuring 4.16 acres is referred to as patta land and
there is no reference to pot-kharab. However, there is
reference to pot-kharab measuring 1.18 acres in the revenue
records produced as per Exs.P.2 to P.10 which was the wrong
entry carried forward and no importance could be attached to
it. When defendants admitted that the entire land was the patta
land at an undisputed point of time, they cannot take
advantage of reference to pot-kharab in Exs.P2 to P10. Learned
Senior Advocate also refer to Exs.P.11 to P.13 where there is
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reference to Sy.No.156 measuring 4.16 acres which is
described as patta land and where there is no reference to pot-
kharab and the property stood in the name of the grandfather
and father of the plaintiff, as pattadars. Similarly, in Exs.D12
and D13 the property is described as patta land and the
predecessor in title of the plaintiff were shown as pattadars.
54. Learned Senior Advocate also submitted that there
is also no defence that the suit property is the pot-kharab-(b)
as referred to under Rule 21 (2) (b) of the KLR Rules. When
there is no pleading nor any evidence led in that regard, the
appellant cannot be permitted to raise such plea before this
Court. Learned counsel placed reliance on the decision in the
case of Sri L.A.Krishnappa Vs. The State of Karnataka
Represented by its Secretary, Revenue Department and
others2 to substantiate to his contention that the land unless is
classified as pot-kharab-(b) as provided under Rule 21(2) of
the Land Revenue Rules, the contention of the appellant that
the plaintiff is not entitled for any relief, cannot be accepted.
Learned Senior Advocate further submitted that to treat the
property as an endowment property, there must be dedication
ILR 2009 KAR 938
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to that effect. It is not the contention of the defendants that
the property was dedicated by anybody to declare it as an
endowment property. Even in earlier suits the defendants have
never raised such a plea that the property was either pot-
kharab or it was meant for public purpose. The land in question
was never endowed or dedicated for the temple.
55. Learned Senior Advocate contended that the
defendants in earlier suit taken a specific stand that they are
having right to worship with right to access to the temple and
to draw water from the Well. They categorically stated that
they are not claiming any right over the land in question. But
strangely in the present suit defendants have taken up an
inconsistent plea that they are claiming right over the suit
property. This is per se destructive plea taken by the
defendants which cannot detain the Court for long.
56. Learned Senior Advocate further submitted that the
defendants have taken inconsistent plea of adverse possession
and failed to probablize the same. They have also contended
that the property in question is the endowed property but there
is no issue framed in that regard before the Trial Court.
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However, the First Appellate Court discussed about such
contention with reference to Regulation Nos.33 and 34 of
Hyderabad Endowment Regulations and categorically recorded
the finding that such plea was not raised in the written
statement and it was for the first time raised in the first appeal.
No such defence was taken in the written statement. Therefore,
such contentions cannot be permitted to be raised in the
second appeal.
57. Learned Senior Advocate also submitted that the
proposed substantial questions of law suggested by the learned
counsel for the appellant regarding declaration of title of the
plaintiff in respect of the property which was pot-kharab land,
as it violates the provisions of the KLR Act, there was no such
issue raised before the Trial Court. When the nature of the land
in question is purely question of fact, the same cannot be
raised for the first time before this Court. Even though the
contention of res-judicata was raised by the defendants, both
the Courts have recorded the finding concurrently in favour of
the plaintiff.
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58. Learned Senior Advocate for the respondent further
submitted that O.S.No.29/1/1964 was filed for possession
based on prior possession. The suit of the plaintiff was
dismissed as the suit was filed beyond six months from the
date of dispossession. Therefore, the present suit is not barred
and question of limitation will not arise. The said decree will not
bar the present suit by principles of res-judicata, since the said
suit was only under Section 9 (old) of the Specific Relief Act.
The suit O.S.No.127/1978 was filed by the plaintiff seeking only
permanent injunction. The same was dismissed as possession
of the property was not proved. It will not attract the principles
of res-judicata.
59. Learned Senior Advocate further submitted that the
suit filed in the year 1978 is for seeking permanent injunction,
whereas the present suit is for declaration and for possession.
The cause of action for the present suit is entirely different.
Even as per Article 65 of the Limitation Act it cannot be said
that the suit is barred by limitation. Unless the defendants
plead and prove perfecting the title by adverse possession, the
suit of the plaintiff for possession cannot be termed as barred
by limitation. In other words, unless the defendants claim the
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property through adverse possession, Article 65 of the
Limitation Act is not made applicable to the suit filed by the
plaintiff, which is based on title. Similarly, the principles of res-
judicata is also not applicable to the present case since the
earlier suits were on different causes of action, whereas the
present suit is on a specific cause of action as stated in the
plaint. Order II Rule 2 of CPC refers to the subsequent suit filed
on the same cause of action. Therefore, the Trial Court and the
First Appellate Court were right in decreeing the suit of the
plaintiff.
60. Learned Senior Advocate submitted that Ex.D.65 is
not an admissible document nor it is proved in accordance with
law. Mere production of Ex.D.65 which was said to have been
issued by City Survey office will not give rise to any
presumption under law and therefore the same cannot be relied
on. Thus he contended that there are no merits in the
contention raised by the appellants. Even if the substantial
questions of law as proposed by the appellant are to be
considered, the same are to be held in favour of the plaintiff
and against the defendants. In view of limited scope under
Section 100 of CPC and since there is no perversity or illegality
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in the judgment of either the Trial Court or the First Appellate
Court, he prays for dismissing of the present appeal with costs.
61. This Court vide order dated 18.06.2018 framed the
following substantial question of law:
"Whether both the courts below have erred in law in
declaring the title of the plaintiffs in respect of a kharab
land in violation of provisions of Karnataka Land Revenue
Act?"
62. Learned counsel for the appellant filed a memo
proposing to frame additional substantial questions of law. The
First proposed additional substantial question of law is with
regard to bar of the suit filed by the plaintiff by res-judicata.
The Trial Court had framed issue No.10 and answered it in
favour of the plaintiff and against the defendants. The second
proposed additional substantial question of law is with regard to
the limitation. The Trial Court had framed issue No.9 and
answered it in favour of the plaintiff. The third proposed
substantial question of law is with regard to bar of jurisdiction
of the Civil Court, since the property is an endowment property.
Even though no such specific issue was framed by the Trial
Court referring to the property as an endowment property,
additional issue was framed regarding jurisdiction of the Civil
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Court. Since defendant No.1 is challenging the legality and
correctness of the judgment and decree passed by the Trial
Court which was confirmed by the First Appellate Court, I deem
it appropriate to frame all these three substantial questions of
law. Thus the additional substantial questions of law are as
follows;
1. Whether the suit of the plaintiff was barred by res-
judicata in view of the judgment passed in
O.S.No.29/1/1964 and O.S.No.127/1978?
2. Whether the suit is barred by limitation?
3. Whether the jurisdiction of the Civil Court is barred
since the suit property is an endowment property?
Perused the materials, including the Trial Court records.
My answer to the substantial question of law and additional
substantial questions of law Nos.1 to 3 are in the Negative for
the following:
REASONS
63. The plaintiff filed the suit in O.S.No.171/1989 which
was later renumbered as O.S.No.55/1993 against the
defendants seeking a) Declaration that he is the owner of the
suit property; b) For possession of the suit property; c) For
mesne profit and d) For costs of suit.
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64. The suit property is described as the land bearing
Sy.No.156 measuring 1.18 acres situated at Basavakalyan out
of the total area measuring 4.16 acres. The plaintiff contended
in the plaint that the suit property is in actual possession of
defendant Nos.7 to 39 and he is maintaining the suit as Kartha
of the joint family consisting himself, his brothers and other
members of the family. It is the specific contention of the
plaintiff that defendant No.1 is not a juristic person but
however defendant Nos.2 to 6 are claimed to be the office
bearers of defendant No.1.
65. It is not in dispute that Sy.No.156 of Basavakalyan
village totally measures 4.16 acres. It is the contention of the
plaintiff that one Dasayya was the pattadar and he was in
possession of the property. He was also known as Hanumadas
and he used to perform pooja in the Balaji Temple that was in
existence in the land. Since Hanumadas was not having any
male issues, he adopted his grandson Narasayya as his son.
Since he was the disciple of Hanumadas, Narasayya was called
as Narasinghdas. It is the specific contention of the plaintiff
that Narasinghdas, who became the owner of the entire 4.16
acres of land in Sy.No.156, sold half of the property in favour of
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one Manohar Buwa, who was the paternal grandfather of the
plaintiff. Since the property was sold only for Rs.45/-, the sale
deed was not registered. After sale of half portion of the
property in favour of Manohar Buwa, Narasinghdas was in
possession of the remaining half portion and subsequently, the
said portion was also sold in favour of Manohar Buwa under the
registered sale deed.
66. The First sale deed relied on by the plaintiff is
produced as per Ex.C.2 and the second registered sale deed is
produced as per Ex.P.14. The recitals in Ex.C.2 discloses that it
was executed on 16.04.1341 Fasli, i.e., on 16.04.1931. There is
reference to 2.38 acres of land, with Balaji temple and half of
the land being sold for a consideration of Rs.45/- in favour of
purchaser Manohar Buwa. Ex.P.14 is the original sale deed
which is in Urdu language and its translation is as per
Ex.P.14(a). The sale deed is of the year 1342 Fasli i.e., dated
23.02.1932. The recitals in the document disclose that there is
reference to Sy.No.152 and later it is referred to as Sy.No.156
measuring 2.38 acres of Basavakalyan village and half of the
portion is already sold in favour of Manohar Buwa and
remaining portion sold in his favour under the sale deed. The
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contention of the learned counsel for defendant No.1 is that the
sale deed Ex.C.2 and Ex.P.14 refer to only 2.38 acres of land,
which excludes 1.18 acres of land, with Balaji Mandir referred
to as schedule property and is the subject matter of the suit.
But it is relevant to note that there is specific reference to
Balaji Mandir existing in the land which was sold and it is stated
that the purchaser is the follower of the temple and he will do
pooja-pat. These recitals in the sale deed, disclose that the land
along with the Balaji Mandir was sold in favour of Manohar
Buwa by the vendor. Thus it is clear that the piece of the land
that was sole in favour of Manohar Muwa was the land with
Balaji Mandir, which corresponds to the suit property.
67. Defendant Nos.1 to 4 and 6 have appeared before
the Trial Court and filed their written statement contenting that
defendant No.1 is the owner of the suit property bearing
Sy.No.156 measuring 1.18 acres including the temple, trees,
shops, samadhies and open space. Defendant No.1 is in
continuous use and enjoyment of the suit property. It is
contended that Dasayya referred by the plaintiff was not the
owner of the entire extent of land in Sy.No.156, including the
temple. The contention of the plaintiff that Hanumadas @
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Dasayya was adopted Narasayya @ Narasinghdas, is also
denied. It is denied that Narasayya @ Narasinghdas was having
right over the land baring Sy.No.156 and the temple situated
there on.
68. It is contended that 2.38 acres of land bearing
Sy.No.156 of Basavakalyan was acquired by the Government
for establishing the market and since the name of the Ganapath
Buwa was found in the revenue records, compensation was
paid to him. It is also contended that the remaining extent of
land was never measured nor the boundaries were fixed. But
however, it was the defendants' who continued in possession
and enjoyment of the said land, including the temple. It is
stated that since Narasayya @ Narasinghdas was only a poojari
in the temple without any right over the land in Sy.No.156, he
could not have sold any portion of the property in favour of
Manohar Buwa under the sale deed. Thus, it is clear that the
defendants have never admitted the ownership of the
predecessor in interest of the plaintiff in respect of the suit
property and also in-respect of the area measuring 2.38 acres
of land which was admittedly acquired by the Government and
the compensation was paid to the Ganapath Buwa.
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The Contention Regarding Pot-Kharab;
69. Ex.P.2(a) is the record of rights for the year 1345
Fasli, i.e., 1935 in respect of Sy.No.156 totally measuring 4.16
acres and 1.18 acres is described as pot-kharab. However,
there is reference to Balaji temple situated in the land and the
name of the Kabjadar is mentioned as Manohar Buwa. Similar
entries were found in the record of rights i.e., in Ex.P.3(a) for
the year 1346 Fasli, i.e., 1936. There is reference to the
revenue due to the Government from the pattadar Manohar
Buwa. Ex.P.4(a) to 10(a) are similar revenue records for the
subsequent years. Ex.P.11 is the record of rights for the year
1968-69, which originally stood in the name of Ganapath Buwa
and after his death in the name of the plaintiff. Total extent of
the land referred to in the Record of Right is 4.16 acres and
there is no reference to pot-kharab. Similarly, Ex.P.12(a) also
refers to the name of the plaintiff and others and there is no
reference of pot-kharab.
70. Learned Senior Counsel for respondent/plaintiff
contended that since the property consists of a temple and
samadhies, it is initially classified as pot-kharab, but the said
entry was only for a few years and it was not carried forward
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during subsequent years. When the subsequent revenue
records are considered, there is no reference to the pot-kharab,
but name of Manohar Buwa and after his death Ganapath Buwa
and thereafter the plaintiff, are shown as pattadars.
71. Ex.P.13 is the decree of the learned Munsiff
ordering mutation of 2.38 acres of land in Sy.No.156 in the
name of Manohar Buwa, where defendant Narasinghdas,
disciple of Hanumadas submitted no objection for such
mutation. Ex.P.15, the copy of the Mysore Gazette published on
11.12.1958 under Section 5 of the Land Acquisition Act
notifying 4.16 land in Sy.No.156 being the patta land for
acquisition. Ex.P.16 is the letter of the Assistant Commissioner,
Bidar dated 04.03.1963 passing the award in respect of 2.38
acres of land in Sy.No.156, excluding pot-kharab and directing
payment of compensation to the owner. Therefore it is clear
that during 1958 to 63, the notification for acquisition of the
land measuring 2.38 acres in Sy.No.156 was published and the
award was passed in respect of 2.38 acres only, excluding 1.18
acres of land being pot-kharab. It is not in dispute that
Manohar Buwa had received the said compensation, but the
revenue records even after acquisition of 2.38 acres of land in
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Sy.No.156 by the Government, continued to be in the name of
Ganapath Buwa and after his death in the name of the plaintiff
for the remaining extent of the land, i.e., obviously in respect
of the suit property.
72. Rule 21 of the Karnataka Land Revenue Rules, 1966
refers to classification of lands for the purpose of assessment.
One such classification is pot-kharab, including unarable land.
Sub-Rule (2) of Rule 21 further classifies the pot-kharab as (a)
and (b). (a) is the classification of the land which is unfit for
agriculture, including the farm buildings or threshing floors of
the holder; (b) is the land which is not assessable as the same
is reserved or assigned for public purpose, occupied by road,
footpath, tank or stream or any other public purposes,
including burial ground.
73. In the case of L.A.Krishnappa (supra), the Co-
ordinate Bench of this Court considered the classification of the
land as pot-kharab (a) and (b) and placing the reliance on the
decision of the Division Bench of this Court in P.Bhimachar
Vs. State of Mysore and others3, reiterated that pot-kharab
portion of the land is included in the ownership of the occupant.
1966 (2) Mys.L.J. 184
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It also referred to the case in Saudagar Rasoor Khan Vs.
State of Mysore4, where similar view was expressed, holding
that the pot-kharab land is called so, because it is not cultivable
and it is a classification made for the purpose of revenue
exemption. The Court has made it very clear that when the
land is classified as pot-kharab under Rule 21(2)(a) Karnataka
Land Revenue Rules, it is for the exemption from payment of
land revenue and has no relevance for assuming that the pot-
kharab portion is the land not included in the occupancy or that
it belongs to the Government. It is further held that only in
respect of pot-kharab-(b) lands, it could be said that the State
Government can claim the same as Government land. Insofar
as pot-kharab-(a) lands are concerned, the land will be
included in the occupation of the pattadars or the owners. Thus
the position of law is very well settled.
74. It is relevant to refer to Ex.P.13(A) which is the
order dated 25th Behaman 342 Fasli, i.e., 25th Jan.-Feb. 1932
passed in Case No.22/1342 Fasli on the file of learned Munsiff
Court at Kalaburagi. As per this document, the purchaser
Manohar Buwa had instituted the suit seeking declaration of
ILR 1973 Karnataka 56
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right of patta of the land bearing Sy.No.156 measuring 2.38
acres against the vendor Narasingdas, disciple of Hanumadas.
The defendant there in had not contested the suit. On the other
hand he agreed for the decree and at an undisputed point of
time the suit was decreed declaring that the Manohar Buwa is
entitled for patta of the land in question.
75. The materials on record disclose that, even after
acquisition of the land measuring 2.38 acres in Sy.No.156 of
Basavaklyana, the name of Ganapath Buwa continued in
respect of 1.18 acres of land and after his death it continued in
the name of the plaintiff. Nobody at any point of time have
challenged the said revenue entries standing in the name of the
plaintiff or his predecessor in title. Even the defendants have
not raised any objections about the said revenue entries, at any
point of time. It is not in dispute, rather it is admitted fact that
the temple in question is situated in the land measuring 1.18
acres in Sy.No.156 of Basavaklyan village. It is never the
contention of the defendants that the property in question is
pot-kharab-(b) land. None of the documents support such
facts. Therefore it is to be concluded that the schedule property
is the patta land belonging to the plaintiff for which the plaintiff
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has sought for declaration of his title. Since there are no
materials to support the contention of the defendants that
plaintiff had no right over the schedule land and there are no
materials to hold that the land is pot-kharab-(b) land, the
Courts have not committed any error in declaring the title of
the plaintiff over the same.
The Contention Regarding Res-Judicata ;
76. It is relevant to refer to the previous litigation in
O.S.No.29/1/1964, filed by the plaintiff against few individuals
including some of the defendants in the present suit seeking
possession of the property. Plaint in O.S.No.29/1/1964 is
marked as Ex.D.1, wherein it is stated that even after
acquisition of 2.38 acres of land in Sy.No.156 of Basavaklayan,
the plaintiff Ganapath Buwa was in possession and enjoyment
of the remaining 1.18 acres of land, including Balaji Mandir as
its pattadar. On 12.07.1962, the defendants with an intention
to usurp the valuable land break opened the lock of the Mandir
and illegally occupied it. The police complaint in this regard was
filed, but they have not taken any action. Therefore, the cause
of action for the suit was arose on 12.07.1962, when the
plaintiff was dispossessed illegally and defendants came in
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possession of the same. Accordingly plaintiff sought for
possession of the suit temple i.e., Balaji Mandir situated in 1.18
acres of land in Sy.No.156 under Section 9 of the Specific Relief
Act, 1877, as it stood then, which refers to the suit by a person
dispossessed of immovable property, which corresponds to
Section 6 of the Specific Relief Act, 1963. The suit was came to
be filed on 06.02.1964. The averments made in the plaint
disclose that it was the suit based on the previous possession
and seeking its restoration under Section 9 of the Specific
Reliefs Act, 1877. But it was not the suit for possession based
on title.
77. Later the plaintiff filed the suit O.S.No.127/1978
seeking perpetual injunction against the defendants. The said
suit came to be dismissed as he has not proved the possession
of the property. However, it is the contention of the plaintiff
that during pendency of the suit O.S.No.127/1978 he was again
dispossessed and therefore the suit was came to be dismissed.
It is thereafter the present suit was filed during 1989 seeking
declaration of his title and for possession.
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78. It is one of the contentions taken by the appellant
that the suit of the plaintiff is barred by res-judicata. It is
contented that since the plaintiff had filed the suit
O.S.No.29/1/1964 seeking possession of the property and
O.S.No.127/1978 seeking perpetual injunction and since both
the suits were came to be dismissed, the present suit is barred
by principles of res-judicata. Section 11 of CPC deals with
principle of res-judicata. To apply the principles of res-judicata
there must be a former suit between the same parties, in which
the matter directly and substantially in issue, the same has
been heard and finally decided by Court of competent
jurisdiction. The appellant while contending that the suit is
barred for res-judicata, places reliance on dismissal of the suit
in O.S.No.29/1/1964 and O.S.No.127/1978, which are came to
be dismissed by the Civil Courts. As noted above, the suit
O.S.No.29/1/1964 was a suit filed under Section 9 of the
Specific Reliefs Act, 1877 for possession of the property based
on previous possession, by alleging that the plaintiff was
dispossessed on 12.07.1962 by the defendant, highhandedly.
Ex.D.4 is the certified copy of the judgment passed in the said
suit where the following issues were came to be considered.
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1) Is the plaintiff entitled to be in sole possession of
the suit property as claimed in plaint?
2) Was the plaintiff in possession of the suit property
prior to the alleged dispossession and is the
dispossession on 12.05.1962 is proved?
3) Is the said Balaji Mandir the endowed property and
the public (Rajaputh, Marwadi and Vaishya
communities) have a right of access, right of
worship to the temple?
4) Are the members of the said communities are in
possession and enjoyment of the property for more
than 50 years?
5) Is the suit time barred?
6) Is the plaintiff entitled for the possession as sought
for?
79. A specific finding was recorded by the Trial Court
under Ex.D.4, which reads as under;
"Admitting for argument sake that, the plaintiff was
dispossessed on 12.05.1962, the present suit is filed on
14.02.1964, which is beyond six months from the time
of dispossession. The plaintiff has not brought the suit
within six months, so the present suit is barred by time
as per Section 9 of Specific Reliefs Act."
The Court has specifically recorded a finding that
ownership of the land in Sy.No.156 is not in dispute. But
plaintiff was held to be required to prove his possession over
the property within six months from the date of dispossession,
as it is the requirement of law. Issue Nos.1 and 2 were held in
the negative.
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80. It is interesting to note that issue Nos.3 was held
partly in the negative holding that the defendants in the said
suit have failed to prove that the suit temple is the endowed
property as no evidence was placed to show that the same is
the endowment property. A specific finding was recorded that
the Balaji Mandir was not the endowment property. The Court
has held that in view of the finding on issue No.3, no finding is
needed on the 4th issue. The 5th issue was held in the
affirmative for the reasons stated therein.
81. In view of the above, it is clear that the suit
O.S.No.29/1/1964 was filed under Section 9 of the Specific
Reliefs Act, 1877, as it was then, based on previous possession
and there was no issue whatsoever regarding the title of the
plaintiff. There was absolutely no evidence to accept the
contention that the property in question was endowment
property and accordingly the Court has answered the issue in
the negative. Under such circumstances, the defendants in the
present suit cannot contend that the suit is barred by the
principles of res-judicata. It is for the first time in the present
suit, the plaintiff sought for declaration of his title, as a cloud is
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created on his title by issuing of the notification as per Ex.D.24
and the defendants started to deny the right of the plaintiff.
82. It is also pertinent to note that Ex.D.21 is the
written statement filed by the defendants in O.S.No.29/1/1964.
The defendants in the said suit have taken a specific stand that
they are not claiming any proprietary interest over the land
measuring 1.18 acres in Sy.No.156, except right of way, right
of worship and right to draw water. The defendants have
pleaded their ignorance as to whether the property is a patta
land granted in the name of Narashingdas and he remained in
possession of the same. In the subsequent proceedings in
O.S.No.127/1978, which was a suit for permanent injunction,
admittedly the defendants have taken a contradictory defence
that they have perfected their title by adverse possession over
the land in question. In this suit, the defendants have taken
one more defence that the property is not the patta land, it is
pot-kharab, the property is the endowed property and further
defendant No.1 is the authority having right over the same. If
these defences taken since from 1964 till this suit are
considered, I am of the opinion that the defence taken are
mutually destructive in nature and the intention of the
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appellant was very clear to grab the property only after
issuance of notification as per Ex.D.24, just prior to filing of the
suit. Therefore the contention of the appellant that the suit of
the plaintiff was barred by the principles of res-judicate cannot
be accepted.
The Contention Regarding Limitation;
83. The next contention raised by the appellant is that
the suit is barred by limitation. In the written statement filed by
the defendants they never admitted the ownership of the
plaintiff in the present suit, nor asserted their ownership over
the schedule property. On the other hand the defendants are
claiming to be in possession of the property, which is also
admitted by the plaintiff by stating that it is defendant Nos.7 to
39, who are in actual possession of the property.
84. The contention taken by the defendants is that the
plaintiff was never in possession and enjoyment of the property
and even according to the plaintiff, he has lost possession over
the property during 1962. Therefore the suit is barred by
limitation. Learned counsel for the appellant could not highlight
under which provision of the Limitation Act, the suit of the
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plaintiff is barred by time. The defendants have made half
hearted attempt to claim adverse possession over the property
by highlighting its ingredients in the written statement filed in
the present suit by stating that, they are in continuous
possession and enjoyment of the property, to the knowledge of
the plaintiff, for more than 30 years. In the written statement
filed in O.S.No.29/1/1964, i.e., Ex.P.21, the defendants have
made it very clear that they are not claiming any right over the
property, but they only seek right to worship, draw water and
to have an access to the temple. Thereafter they have not
admitted the ownership of the plaintiff nor asserted their claim
adversely to the interest of the plaintiff.
85. Under Article 64 of the Limitation Act for seeking
possession of the immovable property based on previous
possession, the period of limitation will be 12 years, from the
date of dispossession. But in the present case, the plaintiff is
claiming possession of the property based on title. Therefore
Article 65 of the Limitation Act could be made applicable. As
per Article 65 for possession of the immovable property based
on title, the period of limitation will be 12 years, when the
possession of the defendant becomes adverse to the plaintiff.
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When it is not the contention of the defendants that they are in
possession of the property adversely to the interest of the
plaintiff, the defendants cannot contend that the suit is barred
by limitation.
86. The Hon'ble Apex Court in the very recent decision
in M.Radheshyamlal Vs. V.Sandhya and another Etc.5
considered the principle of adverse possession in the light of its
earlier pronouncements and held in paragraph Nos.10 to 12 as
under:
10. As far as the plea of adverse possession is
concerned, a Constitution Bench of this Court in the case
of M. Siddiq (Ram Janmabhumi Temple-5 J.) v.
Suresh Das6 , in paragraph 1142 and 1143 has held
thus:
"1142. A plea of adverse possession is founded
on the acceptance that ownership of the property
vests in another against whom the claimant
asserts a possession adverse to the title of the
other. Possession is adverse in the sense that it is
contrary to the acknowledged title in the other
person against whom it is claimed. Evidently,
therefore, the plaintiffs in Suit No. 4 ought to be
cognizant of the fact that any claim of adverse
possession against the Hindus or the temple would
amount to an acceptance of a title in the latter. Dr
Dhavan has submitted that this plea is a
subsidiary or alternate plea upon which it is not
necessary for the plaintiffs to stand in the event
that their main plea on title is held to be
established on evidence. It becomes then
Civil Appeal Nos.4322-4324 of 2024 D.D.18.03.2024
(2020) 1 SCC 1
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necessary to assess as to whether the claim of
adverse possession has been established.
1143. A person who sets up a plea of adverse
possession must establish both possession which
is peaceful, open and continuous possession which
meets the requirement of being nec vi nec claim
and nec precario. To substantiate a plea of
adverse possession, the character of the
possession must be adequate in continuity and in
the public because the possession has to be to the
knowledge of the true owner in order for it to be
adverse. These requirements have to be duly
established first by adequate pleadings and second
by leading sufficient evidence. Evidence, it is well
settled, can only be adduced with reference to
matters which are pleaded in a civil suit and in the
absence of an adequate pleading, evidence by
itself cannot supply the deficiency of a pleaded
case. Reading Para 11(a), it becomes evident that
beyond stating that the Muslims have been in
long, exclusive and continuous possession
beginning from the time when the Mosque was
built and until it was desecrated, no factual basis
has been furnished. This is not merely a matter of
details or evidence. A plea of adverse possession
seeks to defeat the rights of the true owner and
the law is not readily accepting of such a case
unless a clear and cogent basis has been made out
in the pleadings and established in the evidence."
(Underline supplied)
11. In the case of Karnataka Board of Wakf v. Govt.
of India and Ors.7, in paragraph 11, this Court has laid
down the law regarding the plea of adverse possession.
Paragraph 11 reads thus:
"11. In the eye of the law, an owner would be
deemed to be in possession of a property so long
as there is no intrusion. Non-use of the property
by the owner even for a long time won't affect
his title. But the position will be altered when
another person takes possession of the property
and asserts a right over it. Adverse possession is
(2004)10SCC799
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a hostile possession by clearly asserting hostile
title in denial of the title of the true owner. It is a
well-settled principle that a party claiming
adverse possession must prove that his
possession is "nec vi, nec clam, nec precario",
that is, peaceful, open and continuous. The
possession must be adequate in continuity, in
publicity and in extent to show that their
possession is adverse to the true owner. It must
start with a wrongful disposition of the rightful
owner and be actual, visible, exclusive, hostile
and continued over the statutory period. (See
S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254] ,
Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N.
Venkatarayappa v. State of Karnataka [(1997) 7
SCC 567] .) Physical fact of exclusive possession
and the animus possidendi to hold as owner in
exclusion to the actual owner are the most
important factors that are to be accounted in
cases of this nature. Plea of adverse possession
is not a pure question of law but a blended one of
fact and law. Therefore, a person who claims
adverse possession should show: (a) on what
date he came into possession, (b) what was the
nature of his possession, (c) whether the factum
of possession was known to the other party, (d)
how long his possession has continued, and (e)
his possession was open and undisturbed. A
person pleading adverse possession has no
equities in his favour. Since he is trying to defeat
the rights of the true owner, it is for him to
clearly plead and establish all facts necessary to
establish his adverse possession. [Mahesh Chand
Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8
SCC 128]"
(Underline supplied)
12. Therefore, to prove the plea of adverse
possession:-
(a) The plaintiff must plead and prove that he was
claiming possession adverse to the true owner;
(b) The plaintiff must plead and establish that the
factum of his long and continuous possession
was known to the true owner;
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(c) The plaintiff must also plead and establish when
he came into possession; and
(d) The plaintiff must establish that his possession
was open and undisturbed.
It is a settled law that by pleading adverse possession, a
party seeks to defeat the rights of the true owner, and
therefore, there is no equity in his favour. After all, the
plea is based on continuous wrongful possession for a
period of more than 12 years. Therefore, the facts
constituting the ingredients of adverse possession must
be pleaded and proved by the plaintiff."
Thus the principle governing the plea of adverse
possession is very well settled as stated above.
87. Even though the defendants are contending that the
suit is barred by limitation, they have never taken the plea of
adverse possession specifically. When the defendants are
neither admitting the ownership of the plaintiff, nor claiming
ownership by adverse possession, the question of applying
Section 65 of the Limitation Act, does not arise. Under Such
circumstances, it cannot be held that defendant No.1 had any
right over the schedule property prior to Ex.D.25.
88. The appellant has contended that defendant No.1-
Committee was not a party either in O.S.No.29/1/1964 or in
O.S.No.127/1978 and the said suits were filed against few
individuals. It is not the contention of defendant No.1 that it
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was in existence prior to 1989. The documents placed before
the Court discloses that only after issuance of the notification
dated 20.06.1989 as per Ex.D.24, a proposal was sent to the
Government to form the Committee and only thereafter the
notification as per Ex.D.25 was issued on 06.07.1989,
whereunder defendant No.1-Committee was constituted.
89. In view of the settled position of law as highlighted
above, I do not find any merits in the contention taken by the
defendants in the present suit as the defendants have not
admitted the ownership of the plaintiff nor proved any of the
requirements to seek title by adverse possession and therefore
they cannot succeed in their defence. When no adverse
possession was claimed, the question of applying Article 65 of
the Limitation Act, does not arise. In view of the same, the
contention taken by the defendants that the suit of the plaintiff
is barred by limitation also falls to the ground.
The Contention Regarding Endowment Property;
90. It is interesting to note that defendants are not
claiming independent right over the suit property, but it is their
contention that since the land is endowment property and it is
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notified as such, in the year 1989, defendant No.1-Committee
has right over the property and entitled to be in possession of
the same. The notification in question was issued by the
Government on 20.06.1989. Whereas the present suit was
came to be filed on 22.08.1989. Therefore it is clear that
notification of land as an endowment was just before filing of
the suit. In other words immediately after issuing the
notification the plaintiff approached the Civil Court for
declaration of his title.
91. The notification of endowment dated 20.06.1989 is
produced as per Ex.D.24, according to which, an application
has been submitted to the office of the Tahasilar and intimation
has been received from the reliable sources on behalf of the
president of Sri Balaji Mandir Panch Committee, that 1.18 acres
of land in Sy.No.156 of Basavakalyan village i.e., suit property
is the endowed property. Therefore it is notified for information
of the public under Section 6 of the Endowment Regulations,
calling upon the objections from the general public to enter it in
the book of endowment. Therefore it is clear that it was only at
the instance of defendants, the notification was issued and later
the Committee i.e., defendant No.1 was constituted to manage
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the affairs of the temple. Immediately after issuance of the
notification as per Ex.D.24, the present suit was came to be
filed by the plaintiff seeking declaration of his title against the
defendants. However, the Government is not made as a party,
but the notification referred to above discloses that the
Government is not interested in denying the right of the
plaintiff, but it is only the defendants who gave information and
managed to get it notified, calling for objections from the
general public to declare it as an endowment property. They
are also successful in constituting the Committee through the
Endowment Commissioner.
92. The Hyderabad Government Endowment
Regulations, 1349 Fasli was governing the management and
security of endowed property, which was also applicable to
Kalaburagi region, before passing of Karnataka Hindu Religious
Institutions and Charitable Endowment Act, 1997 which came
into effect from 01.05.2003. The statement of objects and
reasons to enact the new Act of 1997 discloses that different
enactments were made applicable to different parts of
Karnataka, bifurcating it as Bombay Karnataka, governed by
Bombay Public Trust Act, 1950, The Old Madras region
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governed by the Madras Hindu Religious Charitable Endowment
Act, 1951, Madikeri region governed by Coorg Temple Funds
Management Act, 1956 and Coorg Temple Funds Management
Regulations 1892, Old Mysore region governed by Mysore
Religious Charitable Institutions Act, 1927, Hyderabad
Karnataka region governed by the Hyderabad Endowment
Regulations 1349 Fasli etc., It was proposed to enact the new
law to replace these several local enactments and to bring
about the uniformity in the matter of regulating various
charitable endowments and thus the Karnataka Hindu Religious
Institutions and Endowment Act, 1997 came into effect. Since
the property in question in the present case is situated in
Basavaklyana of Kalaburagi district, admittedly, the Hyderabad
Endowment Regulations 1349 Fasli (hereinafter referred to as
"the Regulation 1349 Fasli") was applicable prior to
01.05.2003.
93. As per the definition to the ward 'endowment' in the
Regulation 1349 Fasli, every transfer of property which any
person may have made for religious purposes or charity or
public utility will be called as 'endowment' and the endowed
property refers to the property which is transferred in this way.
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'Endower' is the person transferring the property as above.
Therefore, it is clear that when a property belonging to a
person is transferred for religious purpose or for charity or
public utility, then only it can be considered as endowment
property and not otherwise.
94. Ex.D.24 is the notification on which defendant No.1-
appellant is placing reliance to contend that the property in
question is the endowment property. This notification dated
20.06.1989 was issued under Rule 29 of Hyderabad Religious
Endowment Rule 1355 Fasli. As per Rule 29, on production of
the document of endowment or on receipt of intimation in some
other reliable way, the Director of Religious and Charitable
Endowments of the Taluk is entitled to take action in the matter
of the endowment, if satisfied prima facie about any property
being endowed and if it is found that the property has not been
entered in the book of endowments, then it shall be the duty of
the such officer to publish the notification as per Schedule 5 in
the Tahasil Office and in the concerned office of Hyderabad.
The period of such notification will be two months. Rule 30
prescribes the procedure where within prescribed period an
intervention application or objection petition is received. Rule
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31 refers to a situation where no objection petition is submitted
by any person for the notification under Rule 29, within the
period of notification and it is proved that the property has
been endowed property and only then, the property will be
entered in the register maintained in that regard. It is only then
the property will assume the Characteristics of endowed/
endowment property.
95. On going through Ex.D.24 dated 20.06.1989 which
was issued under schedule 5 Rule 29 of the Regulations 1349
Fasli, it is the appellant who gave information to the Tahasildar
of Basavaklyana Taluk that the property in question is a
endowed property and therefore a notification was issued
calling for objections for registering the particulars of the
schedule property in the endowment register. The same is
followed by a proposal being sent by the Deputy Commissioner
to the Government to approve the formation of the temple
Committee, as per Ex.D.25 dated 06.07.1989. That means to
say, within the period of two months from Ex.D.24, which is
dated 20.09.1989, a recommendation was made by the Deputy
Commissioner, assuming that the temple in question is an
endowed property.
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96. When it is the requirement of law that there must
be a transfer of the property for a particular purpose to treat
the same as an endowed property, the burden lies on the
defendant to prove such transfer or dedication of the suit
property as required under law. They should also prove that the
requirements under the Regulations 1349 are complied with to
treat the property as an endowed property. But the documents
placed before the Court disclose that initially the property was
the patta holding of Narasingdas and after him Manohar Buwa
and thereafter of Ganapath Buwa, which was subsequently
inherited by the plaintiff. Nothing is placed on record to show
that there was transfer or dedication of the property for the
religious purpose or charity or public utility by any of these
pattadars. Mere issuance of notification as per Ex.D.24 under
Schedule 5 Rule 29 will not change the nature of the patta land
into an endowment property. It cannot be ignored that in
O.S.No.29/1/1964 in view of the similar contention taken
therein that the property in question is the endowed property,
Issue No.3 as referred to above was framed and it was held
that the Balaji Mandir is not an endowed property.
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97. It is also pertinent to note that first step taken to
treat the property as an endowment property is by issuing the
notification as per Ex.D.24 on 20.06.1989. Till then, the
property was referred to as patta property in all the relevant
documents, including the sale deed Ex.D.14, which is of the
year 1932, where there is reference to the Balaji Mandir in the
patta land of the pattadar-Narasingdas and subsequently in
Ex.P.15 where the property was proposed to be acquired. The
suit was came to be filed immediately after issuance of Ex.D.24
notification. In the absence of the primary requirement of law
i.e., transfer/dedication of the property by any person for
religious purposes, the property cannot be termed as endowed
property. Under such circumstances, a patta land cannot
assume the characteristics of endowed property, as defined
under the Regulations 1349 Fasli, by mere publishing the public
notice as per Ex.D.24, calling for objections, without complying
with the other requirements of law.
98. Admittedly, no official notification was issued to
treat the property as an endowment property, after considering
the objections from the general public, if any. Admittedly, the
plaintiff was never notified about issuance of this notification as
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per Ex.D.24, even though his name was appearing in the
Record of Rights as pattadar and he was fighting the litigation
since 1964.
99. It is also pertinent to note that the said notification
as per Ex.D.24 was cancelled vide order dated 20.10.2000 by
the Government produced as per Ex.P.23. The State
Government considered the notification issued by the
Tahasildar as per Ex.P.D.24 and found that the said notification
is without compliance of Rule 29(1) of Charitable Endowment
Rules and recalled the notification. It is the defendant who
challenged the said order of cancellation by filing
W.P.No.9991/2001, which was came to be allowed and the
order dated 20.10.2000 passed by the State Government was
set aside. The matter is remitted to the State Government for
reconsideration in accordance with law.
100. Admittedly, the plaintiff filed W.P.Nos.82845-
846/2011 challenging the restoration of the order treating the
property as an endowment property. The same was came to be
dismissed vide order dated 16.04.2013. W.A.Nos.50365-
366/2013 also came to be dismissed. However, holding that the
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said issue is to be decided by the Civil Court. Even though the
plaintiff has challenged the decision of the Division Bench of
this Court in writ appeal by filing SLA.Nos.2683-2684/2015, the
same were came to be dismissed vide order dated 09.02.2015,
making it clear that dismissal of the special leave appeals as
well as the order of the High Court challenged therein, it will
not affect the merits of the appeal filed against the decree in
favour of petitioners in O.S.No.55/1993, which is being
considered in this appeal. Meaning thereby the appeals were
dismissed, keeping open the contentions of the parties for the
decision of the Civil Court in the present appeal.
101. In view of the discussion held above, I have no
hesitation to hold that the suit property including the Balaji
Mandir was never an endowment property as contended by the
defendants. Therefore I am of the opinion that the schedule
property is not the endowment property as tried to be
projected by the defendants and hence, the jurisdiction of the
Civil Court is not barred to try the suit.
102. It is only the contention of the defendants that
since property is notified as an endowment property they are
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entitled to be in possession of the same and the plaintiff is not
entitled for any relief. But the declaration of the property as
endowment itself is in dispute and the contention raised by the
defendants in that regard is rejected. Therefore I am of the
opinion that the appellant is not successful in establishing its
contention that the suit property is the pot-kharab-(b) or that
the suit of the plaintiff is barred by res-judicata or it is barred
by limitation or that the Civil Court has no jurisdiction since the
property is an endowment property.
The Conclusion;
103. The plaintiff has approached the Court seeking
declaration and possession of the property. The burden is on
the plaintiff to prove issue Nos.1 to 4. The plaintiff by
examining himself as PW.1 and by producing the documentary
evidence is successful in proving the title of his predecessor in
interest over the suit property measuring 1.18 acres of land
along with the Balaji Temple. The revenue records would
disclose that the same stood in the name of Manohar Buwa.
After his death in the name of Ganapath Buwa. Thereafter in
the name of plaintiff and there is no reason to dispute the
ownership of the suit property. When the plaintiff is successful
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in proving issue Nos.1 to 4, the burden shifts on the defendants
to establish their contention. Except denying the right of the
plaintiff to claim declaration and possession, the defendants
have not placed any materials to substantiate their defence as
taken in the written statement. It is relevant to note that even
through the suit of the plaintiff for declaration is decree in
respect of the entire suit schedule property, the property
excluding the temple is ordered to be handed over to the
plaintiff.
104. I have gone through the impugned judgment and
decree passed by the Trial Court. It has considered the oral and
documentary evidence placed before it to record a specific
finding on each of the issues. When the matter was taken up in
first appeal in R.A.No.40/2013 along with R.A.No.45/2013, the
First Appellate Court again considered the materials afresh and
recorded the concurrent finding and upheld the judgment and
decree passed by the Trial Court.
105. The appellant is in second appeal, under Section
100 of CPC. In case of second appeal against the concurrent
findings by the Trial Court and the First Appellate Court, the
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scope of interference will be very minimum that too only if this
Court is satisfied that the case involves substantial questions of
law.
106. It is settled proposition of law that this Court is not
suppose to undertake task of re-appreciation of the evidence on
record. If substantial questions of law would arise for
consideration and if this Court finds that the Trial Court and the
First Appellate Court misdirected themselves in appreciating the
questions of law and fact and there was perversity in arriving at
a conclusion, then only such a judgment and decree could be
interfered with. It is also the settled proposition of law that
even if this Court could form a different opinion on the same
set of facts and materials than the one formed by the Trial
Court and the First Appellate Court, the same cannot be a
reason for interfering with the concurrent findings recorded by
the earlier Courts.
107. The Hon'ble Apex Court in the case of
T.Ramalingeswar Rao(Dead) Through Legal
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Representatives and another Vs. N.Madhava Rao and
others8 held in paragraph Nos.10 to 12 as follows:
10. In our view, the trial court and the first
appellate court on appreciating the evidence of the parties
had rightly come to a conclusion that the plaintiffs failed
to prove the ingredients necessary for the grant of
perpetual injunction.
11. When the two courts below have recorded
concurrent findings of fact against the plaintiffs, which are
based on appreciation of facts and evidence, in our view,
such findings being concurrent in nature are binding on
the High Court. It is only when such findings are found to
be against any provision of law or against the pleading or
evidence or are found to be wholly perverse, a case for
interference may call for by the High Court in its second
appellate jurisdiction.
12. Such was not the case made out in the High
Court. It is for this reason, we are of the view that the
High Court should not have interfered in the findings of
the two courts below and instead, the findings should
have been upheld by the High Court.
108. The Apex Court in the case of Madhavan
Nair Vs. Bhaskar Pillai (dead) by LRs.9 has held as under:
In the present case, the first appellate court has
neither ignored any material evidence having bearing on
the decision of the case nor considered any evidence
which was otherwise not admissible. Therefore, the High
Court was not at all justified in interfering with the
concurrent findings of fact. It is well settled that even if
the first appellate court commits an error in recording a
finding of fact, that itself will not be a ground for the High
Court to upset the same.
2019 (4) SCC 608
2005 (10) SCC 553
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Thus the position of law is very well settled.
109. On going through the impugned judgment and
decree passed by the Trial Court, confirmed by the First
Appellate Court, I am of the opinion that both the Courts have
considered the materials on record in the light of the rival
contentions in the right perspective and there is no reason to
interfere with the same.
110. In view of the above, I do not find any merits in the
contention taken by the defendants as found in the substantial
question of law and additional substantial questions of law.
Hence, the same are answered against the appellant and in
favour of the respondent/plaintiff and I proceed to pass the
following;
ORDER
The appeal is dismissed with costs.
Registry is directed to send back the Trial Court Records
along with the copy of this judgment forthwith.
SD/-
JUDGE
SRT/Swk/EM/CT-ASC
