Karnataka High Court
Vivekananda Vidya Kendra Trust vs Sri Anjaneya Swamy Devalaya Samithi on 31 July, 2024
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RSA No. 929 of 2017
C/W RSA No. 930 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.929 OF 2017
C/W
REGULAR SECOND APPEAL NO.930 OF 2017 (POS)
IN R.S.A. NO.929 OF 2017
BETWEEN:
VIVEKANANDA VIDYA KENDRA TRUST ®
SOMWARPET, KODAGU DISTRICT
REPRESENTED BY ITS
MANAGING TRUSTEE,
DR. B.K. VASANTHA
S/O. LATE B.K. KENCHAPPA SHETTY,
AGED ABOUT 69 YEARS,
R/AT SOMWARPET TOWN,
KODAGU DISTRICT-571 236. ... APPELLANT
Digitally signed by (BY SRI PUNDIKAI ISHWARA BHAT, ADVOCATE)
MAHALAKSHMI B M
Location: HIGH AND:
COURT OF
KARNATAKA
SRI ANJANEYA SWAMY DEVALAYA SAMITHI ®
CHOWDLU VILLAGE, SOMWARPET TOWN,
KODAGU DISTRCT-571 236
REPRESENTED BY ITS
PRESIDENT/SECRETARY. ... RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 27.01.2017
PASSED IN R.A.NO.40/2011 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE, KODAGU, MADIKERI, PARTLY
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RSA No. 929 of 2017
C/W RSA No. 930 of 2017
ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT
AND DECREE DATED 26.02.2011 PASSED IN O.S.NO.150/2000
ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI.
IN R.S.A. NO.930 OF 2017
BETWEEN:
VIVEKANANDA VIDYA KENDRA TRUST ®
SOMWARPET, KODAGU DISTRICT
REPRESENTED BY ITS
MANAGING TRUSTEE,
DR. B.K. VASANTHA,
S/O. LATE B.K. KENCHAPPA SHETTY,
AGED ABOUT 69 YEARS,
R/AT SOMWARPET TOWN,
KODAGU DISTRICT-571 236. ... APPELLANT
(BY SRI PUNDIKAI ISHWARA BHAT, ADVOCATE)
AND:
SRI ANJANEYA SWAMY DEVALAYA SAMITHI ®
CHOWDLU VILLAGE, SOMWARPET TOWN,
KODAGU DISTTRICT-571 236
REPSRESENTED BY ITS
PRESIDENT/SECRETARY. ... RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 27.01.2017
PASSED IN R.A.NO.41/2011 ON THE FILE OF THE I ADDL.
DISTRICT JUDGE, KODAGU, MADIKERI, PARTLY ALLOWING
THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE
DATED 26.02.2011 PASSED IN O.S.NO.150/2000 ON THE FILE
OF THE SENIOR CIVIL JUDGE, MADIKERI.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 929 of 2017
C/W RSA No. 930 of 2017
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
These two regular second appeals are preferred by
the plaintiff against the rejection of prayer for relief of
declaration that the writing dated 26.11.2000 is not
binding on the plaintiff, findings recorded on issue No.4
and decreetal of counter claim of the defendant declaring
that the Deity Sri Anjaneya Swamy Devaru of Chowdlu
Village is the absolute owner.
2. Parties herein are referred to as per the ranking
before the Trial Court for the sake of convenience.
3. Suit for declaration :
i. to declare that the writing dated 26.11.2000 is not
binding on the plaintiff
ii. Further declaration that the plaintiff is entitled to
possess and enjoy the suit schedule lands peacefully
without being liable to be dispossessed except in due
process of law.
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iii. For relief of permanent injunction to restrain the
defendant their men, agents, or anybody claiming under
them from interfering with the plaint schedule lands and
such other costs.
4. The plaintiff contended that the plaintiff is a
trust registered under the Indian Trust Act and the
defendant is a society registered under the Societies
Registration Act, and the defendant is the owner of the
suit schedule properties. On request of the plaintiff, the
defendant had leased the lands to the plaintiff on ground
rent and the rent has been increased every year and it is
the contention of the plaintiff that they have put up school
building on 'A' schedule and are running a school. Further,
this being the state of affairs on 26.11.2000, at about
10.00 a.m. the defendant's men led by D.D. Jayaram
came to the suit schedule property and put barbed wire
fence across road, inside the main gate so as to obstruct
movement of vehicles and though the complaint was filed
by the plaintiff, no action was taken and the police asked
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the trustees of the plaintiff to come to the police station
and under the pressure of the police, the plaintiff-trust
signed the document prepared therein at the police station
on 26.11.2000 and obtained the same by coercion.
5. On notice, the defendant resisted the suit and
filed written statement and made counter claim that the
suit properties are the absolute properties of Deity Shri
Anjaneya Swamy of Chowdlu Village and sought for relief
of eviction of plaintiff from item Nos.3 and 4 of the
schedule properties mentioned in written statement,
permanent prohibitory injunction against the plaintiff and
mesne profits.
6. The Trial Court, on basis of the pleadings,
framed the following issues:
"1. Whether the plaintiff proves that, as per the
request of the plaintiff-trust, the defendant let out the
plaint schedule lands on a ground rent of Rs.2,000/-
per year and rent was increased to Rs.5,000/- per
year some time later and the plaintiff has been paying
the ground rent promptly and regularly?
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2. Whether the plaintiff proves that, the plaintiff
has put up a school buildings on the plaint 'A'
schedule land and entire area is covered by barbed
wire fence, compound wall and iron gate at the
entrance?
3. Whether the plaintiff proves that, on 26-11-
2000 at about 10.00 a.m., the defendant's men led
by the said D.C. Jayaram came to the plaint schedule
lands and put up a barbed wire fence across the road
inside the main gate of the plaint schedule lands so as
to obstruct the movement of vehicles coming to the
school and preventing the use of the play ground by
the children?
4. Whether the plaintiff proves that, the writing
dated 26-11-2000 as mentioned in para-9 of the
plaint is not binding on the plaintiff?
5. Whether the plaintiff proves that, the plaintiff is
entitled to possess and enjoy the plaint schedule
lands?
6. Whether the defendant proves that, the written
statement schedule properties are the absolute
properties of the Deity of Sri Anjaneya Swamy of
Chowdlu village?
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7. Whether the defendant proves that, only an
area of 50 cents out of item Nos.3 and 4 of plaint
schedule properties were allowed to be used by the
trustees of the plaintiff?
8. Whether the defendant proves that, taking
advantage of the ad-interim exparte temporary
injunction issued by this Court, the plaintiff has
trespassed over the remaining area of item No.3 and
4 of the suit schedule properties by removing the
barbed wire fence and tried to level the earth by using
bulldozer?
9. Whether the defendant is entitled for the relief
of possession of item No.3 and 4 of counter-claim
schedule property?
10. Whether the defendant proves that the plaintiffs
have illegally cut and fell the valuable trees in the
written statement schedule property of deity and
transported the same?
11. Whether the plaintiff is liable to render accounts
in respect of the valuable timber and trees alleged to
have been destroyed or appropriated by the plaintiff
from the written statement schedule property?
12. Whether the plaintiff is liable to render proper
and correct accounts in respect of the income from
the institution and school run on the suit schedule
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properties and the written statement schedule
properties and to pay the same to the defendant on
behalf of Deity Sri Anjaneya Swamy of Chowdlu
village from the date of the counter claim to the date
of delivery of possession?
13. Whether the defendant is entitled to mesne
profits from the plaintiff for use and occupation of the
written statement schedule property Item No.3 and 4
and the buildings situated thereon?
14. Whether the plaintiff is entitled for the reliefs as
prayed for?
15. What Order or decree?"
(underline emphasis supplied)
7. The Trial Court, by the judgment and decree,
dismissed the suit of the plaintiff and answered issue No.4
in the negative, counter claim filed by the defendant was
allowed declaring that the Deity Sri Anjaneya Swamy of
Chowdlu Village is the absolute owner of the suit schedule
properties and the defendant are entitled for eviction of
plaintiff-trust from item Nos.1 to 4 of the written
statement schedule properties and they are entitled for
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mesne profits from the date of decree till the date of
delivery.
8. Aggrieved by the dismissal of the suit and
allowing of counter claim, the plaintiff preferred
R.A.Nos.40/2011 and 41/2011 before the First Appellate
Court. The First Appellate Court, while re-appreciating the
entire oral and documentary evidence, reversed the
judgment and decree of the Trial Court and held that the
plaintiff is entitled to possess and enjoy the suit schedule
properties without being dispossessed, except then by due
process of law and the defendant is at liberty to evict the
plaintiff from the suit schedule properties, by following the
due process of law, the declaration that the writing dated
26.11.2000 is not binding on the plaintiff, was dismissed.
The counter claim filed by the defendant was partly
allowed and held that the Deity of Sri Anjaneya Swamy
Devaru of Chowdlu Village was declared as absolute owner
as per the written statement schedule properties.
Aggrieved, the plaintiff is before this Court.
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9. Heard Sri Pundikai Ishwara Bhat, learned
counsel for the appellant. Though the respondent was
served with notice, they have chosen to remain absent.
10. Learned counsel for the appellant submits that
the appellant is aggrieved by answering issue No.4 against
the plaintiff and the Trial Court and the First Appellate
Court have not considered the fact that under what
circumstances, the writing was obtained by the police and
it has to be held that the writing date 26.11.2000 is not
binding on the plaintiff.
11. This Court has carefully considered the
submission made by the learned counsel for the appellant
and perused the material on record.
12. Issue No.4 came to be framed by the Trial
Court based on the pleadings, which reads as under:
"4. Whether the plaintiff proves that, the writing
dated 26-11-2000 as mentioned in para-9 of the
plaint is not binding on the plaintiff?"
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13. The Trial Court, while answering issue No.4,
held that neither the plaintiff-trust nor the defendant-
Samithi have produced the said document before the
Court admittedly. The writing taken place before the police
in the police station. The Trial Court answered issue No.4
in the negative and had dismissed the suit of the plaintiff.
The First Appellate Court holds that the alleged writing /
letter is not produced before the Trial Court and refrains
from giving any finding on issue No.4. the First Appellate
Court has granted relief to the plaintiff holding that the
plaintiff is entitled to possess and enjoy the suit property,
without being dispossessed, except then due process of
law and any statements made to the police in the course
of investigation are not having any evidentiary value.
Evidence is what relevant facts the witness states before
the Court on oath. Both the courts have answered issue
No.4 against the plaintiff which does not warrant any
interference by this Court. The plaintiff does not dispute
about the ownership and title of the defendant and thus,
the allowing of counter claim by the Courts below does not
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warrant any interference. There counter claim finding is
held that the plaintiff is not entitled for the said
declaration. The findings recorded by the Trial Court and
the First Appellate Court does not warrant any interference
by this Court and no substantial question of law would
arises for consideration to be dealt with under Section 100
CPC. Accordingly, this Court pass the following:
ORDER
i. The regular second appeals are hereby
dismissed.
ii. Impugned judgment and decree of the Courts
below stand confirmed.
Sd/-
(K.S. HEMALEKHA)
JUDGE
MBM
