Karnataka High Court
Bikya Kharvi vs Govinda Rao Kanoji on 2 February, 2024
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WP No. 38206 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 38206 OF 2017 (GM-CPC)
BETWEEN:
1. BIKYA KHARVI
S/O LATE SUBBE KHARVI
R/AT LIGHTHOUSE
GANGOLLI VILLAGE
KUNDAPURA TALUK
UDUPI DISTRICT-576 201
BENEFIT OF SENIOR CITIZEN NOT CLAIMED
...PETITIONER
(BY SRI. NEERAJA KARANTH FOR SRI. SHRIHARI K .,ADVOCATES)
AND:
Digitally signed
by PAVITHRA N
Location: high
1. GOVINDA RAO KANOJI
court of S/O LATE THIMMAPPA THANDELA
karnataka AGED ABOUT 63 YEARS
2. DHAMODHARA KANOJI
S/O LATE THIMMAPPA THANDELA
AGED ABOUT 59 YEARS
3. NAGESH KANOJI
S/O LATE THIMMAPPA THANDELA
AGED ABOUT 56 YEARS
4. VIMALA
W/O MOHAN KANOJI
AGED ABOUT 64 YEARS
5. PRAKASH
S/O MOHAN KANOJI
AGED ABOUT 44 YEARS
6. HARISH
S/O MOHAN KANOJI
AGED ABOUT 41 YEARS
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WP No. 38206 of 2017
7. VINODA
S/O MOHAN KANOJ
AGED ABOUT 39 YEARS
8. SANTHOSH
S/O MOHAN KANOJI
AGED ABOUT 32 YEARS
R1 TO R8- ALL ARE R/AT:
SRI MAHANKALI AMMANAVARA DEVASTHANA
KANOJI MATA,GANGOLLI VILLAGE AND POST
KUNDAPURA TALUK - 576 201
9. DIWAKAR KARVI
AGED ABOUT 43 YEARS
R/AT KARVIKERI, GANGOLLI GRAMA
KUNDAPURA TALUK,
UDUPI DISTRICT - 576 201
10. ANNAPPAYYA KHARVI
S/O LATE KOGGA KHARVI
AGED ABOUT 65 YEARS
R/AT KARVIKERI, GANGOLI VILLAGE
KUNDAPURA TALUK,
UDUPI DISTRICT - 576 201
11. NAGARAJ KHARVI
S/O LATE KRISHNA KHARVI
AGED ABOUT 45 YEARS
R/AT KARVIKERI, GANGOLLI GRAMA
KUNDAPURA TALUK,
UDUPI DISTRICT - 576 201
12. GANAPATHI PATIL
S/O LATE HOLLAPPA PATIL
AGED ABOUT 65 YEARS
R/AT HOLLAPPA PATIL
R/AT KANCHAGODU VILLAGE
KUNDAPURA TALUK,
UDUPI DISTRICT - 576 201
13. SHEENA PATIL
AGED ABOUT 65 YEARS
R/AT DAKU HITTALU, GANGOLLI VILLAGE
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WP No. 38206 of 2017
KUNDAPURA TALUK,
UDUPI DISTRICT - 576 201
14. KRISHNA PATIL
S/O LATE CHIKKA PATIL
AGED ABOUT 65 YEARS
R/AT GUDDE KAARI, GANGOLLI VILLAGE
KUNDAPURA TALUK,
UDUPI DISTRICT - 576 201
15. RAMADASA PATIL
S/O LATE KINA PATIL,
AGED ABOUT 58 YEARS
R/AT MYALARABETTU, GANGOLLI VILLAGE
KUNDAPURA TALUK,
UDUPI DISTRICT - 576 201
16. NAGAPAYYA PATIL
S/O LATE RAMA PATIL,
AGED ABOUT 55 YEARS
R/AT MYALARABETTU, GANGOLLI VILLAGE
KUNDAPURA TALUK,
UDUPI DISTRICT - 576 201
17. RAGHAVENDRA PATIL
S/O LATE PANDU PATIL
AGED ABOUT 45 YEARS
R/AT KARVIKERI, GANGOLLI VILLAGE
KUNDAPURA TALUK,
UDUPI DISTRICT - 576 201
18. Y.SURESH KHARVI
S/O YASHWANTH KHARVI
AGED ABOUT 45 YEARS
R/AT MYALARABETTU, GANGOLLI VILLAGE
KUNDAPURA TALUK,
UDUPI DISTRICT - 576 201
...RESPONDENTS
(BY SRI. YASHWANTH C FOR SRI K G SADASHIVAIAH
FOR C/R1- R8.,ADVOCATES
V/O DATED 31.01.2023 PETITION AGAINST R11 IS ABATED
R9-10, 12-18 ARE SERVED AND UNREPRESENTED)
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WP No. 38206 of 2017
THIS WRIT PETITION FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
31.7.2017 IN MISC . APPEAL NO. 4/2017 ON THE FILE OF
ADDITIONAL DISTRICT AND SESSIONS JUDGE UDUPI (SITTING AT
KUNDAPURA) AT ANNEXURE-A TO THE WRIT PETITION AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN B-GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The appellant in Misc.Appeal.No.4 of 2017 on the file of
the learned Additional District and Sessions Judge Udupi (sitting
at Kundapura), is impugning the order dated 31.07.2017,
dismissing the appeal filed by him under Section 104 read with
Order XLIII Rule 1(r) of CPC, consequently, confirming the
order dated 18.04.2017 passed by the learned Senior Civil
Judge, Kundapura on IA.No.II in OS No. 14 of 2017 filed under
Order XXXIX Rules 1 and 2 of CPC, granting temporary
injunction restraining the defendants from interfering in the
administration of the temple, which is the subject matter of the
suit.
2. Heard Sri. Neeraja Karanth, learned counsel for the
petitioner and Sri Yashwanth C, learned counsel for respondent
Nos.1 to 8. Perused the materials on record.
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3. Learned counsel for the petitioner submitted that
the respondents as plaintiffs filed suit OS No.14 of 2017
seeking permanent injunction restraining the defendants from
interfering in the administration of the temple in question. IA
No.II was filed under Order XXXIX Rules 1 and 2 of CPC,
seeking temporary injunction. The said application was allowed
by the Trial Court and the same was confirmed in MA No.4 of
2017. Being aggrieved by the same, defendant No.4 is before
this Court.
4. Learned counsel submitted that the plaintiffs are
claiming to be the hereditary trustees of the temple in question
and claim exclusive right to manage the affairs of the temple.
Alleging that the defendants are interfering with their rights,
the suit was filed and also impugned order was obtained. On
the other hand, it is the specific contention of the defendants
that the temple in question is a family temple of the members
of Kharvi Community. The predecessor in title of the plaintiffs
had purchased the moolageni right over the land, on which the
temple is situated, way back in 1917. The members of Kharvi
Community were permitted to worship the deity and perform
pooja. The plaintiffs started to interfere with such pooja and
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worship and also in the administration of the temple.
Defendant No.4 filed the written statement and also claimed
counter claim for declaration about his right over the temple.
Without taking into consideration any of these facts, the Trial
court proceeded to allow the application, which is impugned by
defendant No.4.
5. Learned counsel also submitted that defendant No.2
had filed OS No. 223 of 1997 seeking declaration and
permanent injunction in respect of very same temple. The said
suit came to be decreed, against which, RA No.77 of 2006 was
filed and the same was allowed. It is stated that the second
appeal is pending against the said judgment. Since there is
serious controversy about the right of the plaintiffs to manage
and worship the deity, the Trial Court and the First Appellate
Court committed an error in passing the impugned orders.
Hence, he prays for setting aside the same by allowing the
petition.
6. Per contra, learned counsel for the respondents -
plaintiffs opposing the petition submitted that, the suit OS
No.223 of 1997 filed by defendant No.2 was already dismissed
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by the judgment passed in RA No.77 of 2006. The Court has
already recorded a finding regarding the right of the plaintiffs.
The present suit is only for perpetual injunction. Since the
defendants were interfering in the administration of the temple,
the suit was filed and IA No.II filed seeking the temporary
injunction. The impugned order passed by the Trial Court
makes it very clear that the defendants are restrained from
interfering in the administration of the temple in question. It
has made very clear that the defendants can very well visit the
temple, perform pooja as a devotee. Therefore, there is no
reason to interfere with the impugned order and prays for
dismissal of the petition.
7. Existence of temple in question is not in dispute. It
is also not in dispute that the predecessor in title of the
plaintiffs purchased the said moolageni right over the land in
question and they were in possession of the same. It is the
specific contention of the plaintiffs that they are the hereditary
trustees in respect of the temple and they are having right to
perform pooja and administer the temple. Whereas, it is the
contention of the defendants that they being the members of
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Kharvi Community are entitled to perform pooja and
administrate the temple, as it is their family deity.
8. It is not in dispute that defendant No.2 had filed OS
No.223 of 1997 seeking declaration and permanent injunction
in respect of very same temple. Even though the suit was
decreed by the Trial Court, the First Appellate Court allowed RA
No.77 of 2006. It is stated that the said judgment is
challenged in the second appeal, which is pending for
consideration. In the meantime, the plaintiffs filed the present
suit for perpetual injunction against the defendants to restrain
from interfering in the day-to-day administration of the temple.
Considering all these facts, the Trial Court passed impugned
order allowing IA No.II restraining the defendants from
interfering with the administration of the temple.
9. It is pertinent to note that the Trial Court made it
very clear that the impugned order will not come in the way of
defendants visiting the temple and perform pooja to the deity,
as they being the members of Kharvi Community. By passing
the said order, the Trial Court has taken care of the right of the
defendants as claimed by them to a certain extent. Right to
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administer the temple will have to be considered by the Trial
court in the light of rival contentions. It is stated that the
petitioner being defendant No.4 filed a counter claim seeking
declaration of his right to administer the temple. Under such
circumstances, administration of temple is a disputed question
of fact and the same is to be decided by the Trial Court after
full-fledged trial. In the meantime, some arrangements will
have to be made to run the temple. In view of these facts and
circumstances, I am of the opinion that the Trial Court has
rightly passed the impugned order taking care of the right of
the defendants to perform pooja in the temple, till disposal of
the suit which was confirmed by the Appellate Court. I do not
find any illegality and perversity in the said order.
Hence, writ petition is dismissed.
Sd/-
JUDGE
SPV
