Karnataka High Court
Shri Veerabhadreshwar Temple vs Vishwakarma Samaj Gulbarga (R) And Ors on 8 January, 2024
-1-
NC: 2024:KHC-K:269
RSA No. 200125 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.200125 OF 2018 (INJ)
BETWEEN:
SHRI VEERABHADRESHWAR TEMPLE
COMMITTEE,
SHEELAVANTHA AKKASALIGA SAMAJ,
NO.4-557, SANGTRASWADI,
DARGA ROAD, KALABURAGI
THROUGH ITS PRESIDENT
RACHANNA SHEELAVANTH
MUDDADAGI.
...APPELLANT
(BY SRI. CHAITANYAKUMAR C M, ADVOCATE)
AND:
Digitally signed
by SACHIN VISHWAKARMA SAMAJ, GULBARGA (R)
Location: HIGH
COURT OF SHRI KALIKADEVI TEMPLE,
KARNATAKA SANGTRASWADI, GULBARGA-585105
THROUGH ITS President
1. SHRI MANIKRAO
S/O ANNARAO PODDAR,
AGE:84 YEARS,
RESIDENT OF HOUSE NO.11-421/22,
"SWARALAYA" SAMATA COLONY,
BRAHAMPUR, KALABURAGI-585101.
2. THE CHIEF SECRETARY,
SHRI DASHARATH
-2-
NC: 2024:KHC-K:269
RSA No. 200125 of 2018
S/O MALLAPPA PODDAR MADYALKAR,
AGE:47 YEARS, OCC:SARAF,
R/O GANESH MANDIR,
SARAF BAZAAR, KALABURAGI-585101.
3. THE CITY CORPORATION, GULBARGA
THROUGH ITS COMMISSIONER,
JAGATH CIRCLE, SUPER MARKET,
KALABURAGI-585101.
...RESPONDENTS
(BY SRI. B D HANGARKI, AND SRI. D.P AMBEKAR ADVOCATES)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
28.02.2015 PASSED BY LEARNED II ADDL. CIVIL JUDGE &
JMFC At KALABURAGI, IN O.S.NO.625/2011 AND ALSO SET
ASIDE THE JUDGMENT AND DECREE DATED 09.01.2018
PASSED BY THE LLEARNED III ADDL. SENIOR CIVIL JUDGE AT
KALABURAGI, IN RA NO.22/2015 CONSEQUENTLY BE PLEASED
TO DISMISS THE SUIT FILED BY THE PLAINTIFFS, IN THE
INTEREST OF JUSTICE AND EQUITY
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, defendant No.1/appellant, is assailing
the judgment and decree dated 09.01.2018 in
R.A.No.22/2015 on the file of III Additional Senior Civil
Judge, Kalaburagi, confirming the judgment and decree
dated 28.02.2015 in O.S.No.625/2011 on the file of
NC: 2024:KHC-K:269
II Additional Civil Judge and JMFC at Kalaburagi, decreeing
the suit of the plaintiff.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiff that, an ancient
temple called as Shri Kalikadevi Temple @ Kalamma
Temple situate at Corporation No.4-556 at Sangtraswadi,
Gulbarga and same is owned and possessed by the
Vishwakarma Samaj (plaintiff-Committee). The plaintiff-
Committee is managing the affairs of the Kalikadevi
temple.
4. It is stated in the plaint that the property of
Kalikadevi temple is on the eastern side, north-south
measuring 191 feet whereas towards north-south-
property, first defendant's temple (Veerabhadreshwar
Temple) situated. It is the case of the plaintiff that
northern wall of the temple property is exclusive property
NC: 2024:KHC-K:269
of the plaintiff's temple and there is an open space in
between the temples.
5. It is stated in the plaint that the committee of
Kalikadevi Temple had filed O.S.No.78/1973 against
defendant No.1 before the Court of the Principal Munsiff,
Gulbarga seeking declaration and injunction and the said
suit was decreed in terms of the compromise petition
between the parties on 17.04.1974. In the said
compromise petition, the defendant No.1 has agreed not
to put-up any construction including drain within four feet
space to the north of the northern wall throughout the
east-west length of the said northern wall. Despite the
same, the defendant No.1 has violated the terms of
compromise petition and accordingly, the defendant No.1
made an attempt by encroaching the open space, resulting
in filing of O.S.No.625/2011 by the plaintiff seeking relief
of permanent and mandatory injunction.
6. After service of notice, the defendant No.1
entered appearance and filed written statement denying
NC: 2024:KHC-K:269
the averments made in the plaint. Defendant No.2 entered
appearance and has not filed written statement. The trial
Court on the basis of the pleadings on record framed the
issues for its consideration.
7. In order to establish their case, plaintiff-
Committee has examined the President of the Society as
PW.1 and marked 11 documents as Ex.P.1 to Ex.P.11.
Defendants have examined its President as DW.1 and
marked seven documents as Ex.D1 to Ex.D7. The Court
Commissioner was appointed and he was examined as
CW.1 and marked five documents as Ex.C1 to Ex.C5.
8. The trial Court after considering the material on
record vide its judgment and decree dated 28.02.2015,
decreed the suit and as such directed the defendant No.1
to remove the illegal structure made within the four feet of
open space. Feeling aggrieved by the same, the defendant
No.1 has preferred the appeal in R.A.No.22/2015 before
the First Appellate Court and the appeal was resisted by
the plaintiff. The First Appellate Court after considering the
NC: 2024:KHC-K:269
material on record dismissed the appeal by judgment and
decree dated 09.01.2018 by confirming the judgment and
decree in OS No.625/2011. Feeling aggrieved by the
same, the defendant No.1 has preferred the present
second appeal.
9. I have heard learned counsel
Sri Chaitanyakumar C.M., appearing for the appellant and
Sri S.B.Hangarki, learned counsel appearing for the
respondent Nos.1 and 2 and Sri D.P.Ambekar for
respondent No.3.
10. Sri Chaitanyakumar, learned counsel appearing
for the appellant contended that the finding recorded by
both the Courts below solely based on the evidence of the
Commissioner, without appreciating the material on record
is not correct. He further submitted that the finding
recorded by both the Courts below that the
appellant/defendant No.1 has violated the judgment and
decree produced at Ex.P9 is incorrect and accordingly
sought for interference of by this Court.
NC: 2024:KHC-K:269
11. Learned counsel for the respondents sought to
justify the impugned judgment and decree passed by both
the Courts below.
12. Heard the learned counsel appearing for the
parties and on careful examination of the finding recorded
by both the Courts below and perused the original records.
It is not in dispute that the plaintiff had filed
O.S.No.78/1973 against the defendants seeking
declaratory relief which came to be decreed in terms of
compromise decree entered into between the parties.
13. The only question to be considered in this
aspect is whether the defendant No.1 has violated the
terms of the compromise decree. In this regard, I have
carefully examined Ex.P9 and the relevant paragraph in
Ex.P9 reads as under :-
"It is agreed that upon space to the extent
of 4 feet (four) adjoining to the exclusive wall
of plaintiff 'A-B' towards north will remain open
for common use of both the parties for repair of
wall etc."
NC: 2024:KHC-K:269
14. In this regard, having taken note of the
deposition of CW.1 and Ex.C1, I am of the view that it is
reported in the Commissioner report that defendant No.1
is making construction in four feet of the open space as
mentioned in the compromise petition produced at Ex.P9.
In that view of the matter, I do not find any merit in the
submission of the learned counsel for the appellant and
both the Courts below having taken note of the material
on record, rightly decreed the suit holding that the plaintiff
has made out a case that defendant No.1 is making
construction in the four feet of the open space in violation
of the compromise petition. Appellant has not made out a
case for admission, and the appeal is devoid of merit and
accordingly no substantial question of law is involved in
this appeal, accordingly appeal is dismissed.
Sd/-
JUDGE
SN
