Karnataka High Court
Sri.H.Swamy vs Sree Bhogeshwara Trust on 27 September, 2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
MISCELLANEOUS FIRST APPEAL No.5021 OF 2018 (CPC)
BETWEEN:
1. Sri. H.Swamy,
Aged about 54 years,
S/o. Sri. Honnagiri Gowda,
2. Sri. Kenche Gowda,
Aged about 52 years,
S/o. Sri. Honne Gowda,
3. Sri. Swamy Gowda,
Aged about 52 years,
S/o. Sri. Boralinge Gowda,
4. Sri. Ramalinge Gowda,
Aged about 61 years,
S/o. Sri. Sidde Gowda,
All are residents of
Bogadi Village, Mysuru Taluk,
Mysuru-570026.
...Appellants
(By Sri. Y.K.Narayana Sharma, Advocate)
AND:
1. Sree Bhogeshwara Trust,
A registered Public Trust,
Having its office at BogadiVillage,
Mysuru Taluk, Mysuru-570026.
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Represented by its President
Sri. Mahadeve Gowda,
2. Sri. B.S.Mahadeve Gowda,
Aged about 72 years,
S/o. Late Sri. Sidde Gowda,
3. Sri. B.P.Thibbe Gowda,
Aged about 71 years,
S/o. Late Pape Gowda @
Chikke Gowda
4. Sri. Swamy,
Aged about 55 years,
S/o. Vaikunte Gowda,
5. Sri. Shankar,
Aged about 54 years,
S/o. Chamunde Gowda @
Heddamanase Gowda
6. Sri. Rache Gowda,
Aged about 72 years,
S/o. Kullegowda,
7. Sri. B.H.Swamy,
Aged about 54 years,
S/o. Late Sonne Gowda,
8. Sri. Doddalinge Gowda,
Aged about 71 years,
S/o. Late Sidde Gowda,
9. Sri. Marisidde Gowda,
Aged about 58 years,
S/o. Late Siddalingegowda,
10. Sri. Shivalinge Gowda,
Aged about 61 years,
S/o. Late Kale Gowda
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11. Sri. Putte Gowda,
Aged about 66 years,
S/o. Sidde Gowda
12. Sri. B.S.Swamy,
Aged about 52 years,
S/o. Late Sonne Gowda,
R2 to R12 are Residing of
Bogadi Village, Mysuru Taluk,
Mysuru-570026.
13. Sri. M.Ramanath Shenoy,
Aged about 63 years,
S/o. Late M.Govinda Rao,
No.967, "Amarnath",
JLB Road, Lakshmipuram,
Mysuru-570004.
14. Sri. M.A.Sudhir Kumar,
Aged about 57 years,
S/o. Late M.S.Anantharajaiah,
No.565, Budha Maarga,
Siddarthanagara,
Mysuru-570011.
15. Sri. B.M.Shivaswamy,
Aged about 63 years,
S/o. Mahadevappa,
Bilugali Village & Hobli,
Nanjangud Taluk-571129.
16. Sri. A.S.Balamurali Kirshnan,
Aged about 56 years,
S/o. Sri. Shivaswamy Iyer,
No.175/13, 10th "B" Main
5th Cross, 1st Block, Jayanagar,
Bengaluru-560041.
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17. Sri. M.Galappa,
Aged about 61 years,
S/o. Marappa,
No.41, Tata Silk Farm,
Kanakapura Main Road,
Basavanagudi,
Bengaluru-560004.
18. Sir. K.R.Ramachandre Gowda,
Aged about 42 years,
S/o. Sri. K.R.Rangaiah,
No.1238, 3rd Cross,
Gange Road, Chamaraja Mohalla,
Mysuru-570024.
19. Sri. M.Puttegowda,
S/o. Late Madhe Gowda,
Aged about 60 years,
Residing at No.205,
Srirama Mandir Road,
Bogadi, Mysuru-570026.
... Respondents
(By Sri. Jayakumar S. Patil, Sr. Counsel, for
Sri. Mohammed Tahir A., Advocate, for R2;
Sri. Ashok Haranahalli, Sr. Counsel for
Sri. Chenna Keshava B.S., Advocate for R16 & R17;
Sri. P.Nataraju, Advocate, for R14,
Sri. P.N.Hegde, Advocate, for R13,
Sri. P.Mahesha, Advocate, for R15,
Sri. K.Shrihari, Advocate, for R8 to R11 & R19
Sri. Maruthi Prasad, Advocate, for R18,
R1, R3 to R7 & R12 - served)
This MFA is filed under Section 104(1)(ffa) read with
Order 43 & 41 Rule 1 of CPC, against the order dated
29.05.2018, passed in Mis.No.8/2012, on the file of the
Principal District & Sessions Judge, Mysuru, dismissing the
petition filed under Section 92 of CPC.
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This MFA coming on for hearing this day, the Court
delivered the following:
JUDGMENT
The appellants have assailed the order dated 29.05.2018 of the Prl. District and Sessions Judge, Mysuru in Mis.No.8/2012. Given a brief account of the events that led the appellants to approach the District Court, they are as follows:
2. The appellants are all the permanent residents of Bogadhi Village, Mysuru Taluk. They state that certain extents of lands in survey numbers 228/1, Sy.No.228/2, Sy.No.251 and Sy.No.72 of Bogadhi Village, Mysuru Taluk were all inam lands attached to temples of Goddess Hiredevamma, Goddess Hale Bogadi Maramma, Goddess Mooga Maramma and God Nagalingeshwara situated at Bogadhi Village, Mysuru Taluk. The residents of that village including the appellants and respondents 2 to 12 were jointly cultivating these lands as tenants under the leadership of late Yajaman Siddegowda, the father of the second respondent. After the demise of Yajaman 6 Siddegowda, the cultivation was under the leadership of second respondent. The income derived from these lands was being used for maintaining the temples. After coming into force of the Mysore (Religious and Charitable) Inams Act, 1955, all the villagers and the devotees of the temples authorized second respondent to apply for registration of occupancy rights of these lands. It was their intention that even after grant of occupancy rights, they wanted that the income derived from these lands should be used for maintenance of the temples and performing other religious activities. There was a common understanding amongst the villagers that nobody should claim individual right or interest or title or claim over these lands. They wanted a trust to be established in this regard. Accordingly the second respondent obtained occupancy rights making application to the Land Tribunal, Mysuru. Order in this regard was passed by the Land Tribunal, Mysuru on 12.11.1992 conferring occupancy rights on the second respondent.7
3. In the course of time, the devotees and the residents of the village expressed their unhappiness about the conduct of the second respondent as he showed no interest in creation of trust. All the villagers met him many times and requested him to furnish the details of the measures taken by him for creation of trust, and accounts for the income derived from the said lands. The second respondent assured of creation of a trust and to abide by the common understanding of all the villagers. In the year 2003 he intimated to the devotees about creation of a public trust by name "Sri Bogeshwara Trust", and appointing respondents 3 to 12 and the appellants 1 to 3 as trustees and himself as the Managing Trustee. Even after this announcement made by the second respondent, trust was not created. When the villagers approached the second respondent and demanded him to create a trust in respect of these properties and other properties, the second respondent disclosed about a writ petition, W.P No.30108/2000 filed by one Madaiah and M.Nataraj and also the statement of objections filed by him to the said writ petition. It is stated 8 at that time that the second respondent disclosed that even in the statement of objections to the writ petition, he had made it very clear about his intention to transfer all the lands to the trust and that he had no personal claim over those lands. The appellants and other devotees examined the records in the said writ petition and noticed such a stand being taken by the second respondent and therefore believed him in good faith. In the year 2004-05, Mysuru Urban Development Authority (MUDA) acquired some part of lands in these survey numbers for formation of outer ring road and the Special Land Acquisition Officer passed an award granting compensation of Rs.14 Lakhs. The villagers wanted this money to be deposited in the name of trust i.e., the first respondent, but the respondent No.2 did not agree for the same; he gave the reason that till he obtained permission from the concerned authorities for including all the lands to the trust, deposit of money in the first respondent-trust was not possible. The appellants believed him, however insisted on depositing the money in a joint account. Accordingly fixed deposit of this amount was made in a joint account 9 opened by first appellant and the second respondent at Corporation Bank, Ontikoppal, Mysuru.
4. The appellants stated that all of a sudden the second respondent turned hostile and failed to maintain proper accounts and manage the properties. The appellants came to know that the second respondent had sold away the properties to respondents 3 to 6 by executing several sale deeds. He had no individual right over the properties in spite of registration of occupancy rights in his favour. The declaration made by him before the Land Tribunal and also in the statement of objections filed by him to the writ petition very clearly show that he cannot claim any right over these properties himself. The sale deeds executed by him are not valid. They are all the properties of the trust. Since the second respondent committed breach of trust, it became necessary for the appellants to remove him from the management of the trust and to seek framing of a scheme for proper management of trust properties. Therefore the appellants made an application under Section 92 of the Civil Procedure Code ('CPC' for short), seeking permission of the 10 District Court for instituting a suit. The Principal District Judge, Mysuru, dismissed the application filed under Section 92 of CPC and hence this appeal.
5. I have heard the arguments of the learned counsel for the appellants and the respondents.
6. Sri Y.K.N.Sharma, learned counsel appearing for the appellants, argued that the impugned order discloses very well that the learned District Judge has not understood the scope of section 92 of CPC. The learned Judge has gone to the extent of giving a finding on the title of the second respondent with respect to the properties. While deciding an application under section 92 of CPC, it is not necessary to hold an enquiry at all. Here the District Judge has examined the witnesses and given findings with regard to title of the properties. All that is required is to arrive at a conclusion based on the plaint averments whether there is a prima facie case for bringing a suit in respect of any of the reliefs that could be brought within the scope of section 92 of CPC. In this case all that the appellants' state is that the lands in question were under the joint cultivation of the villagers as 11 those lands belonged to the temples. The cultivation was earlier under the leadership of the father of second respondent and after his demise, under the leadership of the second respondent. After coming into force of Mysore (Religious and Inams) Abolition Act, the villagers decided that the second respondent should apply to the Land Tribunal seeking registration of occupancy right. There was a common understanding even after re-grant the lands must be held in trust for benefit of temple. There was a constructive trust. The second respondent also made it clear when he applied to the Land Tribunal that he had made the application on behalf of all the villagers. In the statement of objections filed to the writ petition, it was stated by him that he held the land in that capacity and not in his individual name. Second respondent held the lands in his personal name but not in his personal capacity. The second respondent is estopped from contending that the lands belonged to him absolutely. This being the actual position, after registration of occupancy right to his name, he went to the extent of selling the lands in breach of trust. This was 12 the reason for the appellants' deciding to sue the second respondent and others for framing a scheme of the first respondent trust. The plaint averments disclose prima facie case for granting permission. The findings given by the District Court are erroneous, incorrect and do not stand to reason. Placing reliance on number of decided cases, he argued that this appeal is required to be allowed, application under section 92 CPC granted and appellants permitted to sue the respondents for the reliefs claimed in the plaint.
7. Sri Jayakumar S Patil, learned senior counsel appearing for respondent 2 and Sri Ashok Haranahalli, learned senior counsel appearing for respondents 16 and 17 almost urged the same points of arguments. Their contentions are that after coming into force of the Mysore (Religious and Inams) Abolition Act, all the inam lands vested with the Government. Second respondent being the cultivator at the time when the said Act came into force applied for registration of occupancy right. The tribunal, after holding an enquiry, found that respondent No.2 was the cultivator of the lands and therefore granted occupancy 13 rights to him. Thus, the second respondent became the absolute owner of all the lands after the re-grant. It might be a fact that there was a common interest of all the villagers in the lands before the vesting of the lands with the Government. But, once the lands vested, the prior interest of the villagers extinguished and the grant to respondent No.2 conferred him absolute ownership. Thereby the appellants cannot say that still the lands are commonly owned by the villagers. There is no trust at all. The trust has not come into existence at all. The appellants cannot assert the existence of constructive trust once the lands vested with the Government. In the petition what is stated is that the second respondent intended to create a trust, it does not mean that a trust came into existence. When the trust does not exist at all, a suit under section 92 of CPC cannot be maintained at all. Basic requirement is existence of trust. The District Court has rightly come to conclusion that the appellants cannot be permitted to sue under section 92 CPC. Merely because the District Court held an enquiry, it cannot be said that it has not applied its mind. Based on 14 the plaint averments alone it is possible to say that the second respondent became the absolute owner of the property after grant of occupancy right and therefore the sales made by him to other respondents cannot be assailed.
They too have relied upon many decided cases and only the cases which are on the facts and circumstances applicable to will be referred to during discussion.
8. Counsel for respondent No.10 adopted the argument of Sri Y.K.N.Sharma. Learned counsel for respondent Nos. 13, 14 and 18 adopted the argument of Sri Jayakumar S Patil.
9. If the impugned order is perused, it needs to be stated at the initial stage itself that the trial court adopted a wrong procedure while deciding the application under section 92 CPC. There was no need to hold an enquiry by examining the witnesses. It is just an application to the court seeking permission to institute a suit for any of the reliefs mentioned in the said section relating to a trust created for public purposes of a charitable or religious nature. The suit is filed in representative character, not 15 meant for vindicating personal right. This being the position, the court, in order to decide whether permission needs to be granted or not, has to consider only the plaint averments and come to conclusion whether prima facie case exists for permitting the plaintiffs to sue for the reliefs mentioned in section 92 CPC. The reliefs that are mentioned in section 92 CPC are not exhaustive, any other relief may be sought, but it must be in conformity with scope of section 92 CPC. Actually for deciding an application under section 92 CPC, it may not be necessary to issue notice to the defendants, but it is desirable.
10. In this case the appellants assert that the income derived from the lands was being used for maintaining temples and for other religious purposes. The lands were under joint cultivation of all the villagers, but under the leadership of Yajaman Siddegowda, father of respondent No.2 and after his demise, under the leadership of respondent No.2. What they further state is that after vesting of the lands pursuant to coming into force of Mysore (Religious and Inams) Abolition Act, 1955 respondent No.2 16 was allowed to claim re-grant of the lands on behalf of all the villagers and therefore even after grant of occupancy right to respondent No.2, the lands continued to be under the joint cultivation of all the villagers. Though these lands were not included in the trust deed that came into existence on 4.7.2003, there was constructive trust in respect of these lands. Since respondent No.2 breached the obligations of the trust and sold them to several persons, the appellants state that they are entitled to sue the respondents to protect the property of the trust and for removal of the trustees.
11. What is necessary is to examine whether the contents of the petition made under section 92 of CPC disclose the existence of a trust or not as for exercising power under section 92 CPC, existence of a trust is pre- condition. Section 92 CPC applies to religious or charitable trusts, but, the meaning of the trust can be gathered from section 3 of the Indian Trust Act. According to this section, trust means obligation annexed to the ownership of a property and arising out of a confidence reposed and accepted by the owner or declared and accepted by him for 17 the benefit of another or of another and the owner. In the beginning of Section 92 the expressions "alleged breach of any express or constructive trust created for public purposes" are found. Therefore, the trust may be either express or constructive. Express trust arises from the intention of a person to create a trust. This intention gets manifested through execution of a trust deed. But, the constructive trust arises not by act of the parties but by operation of law. The Division Bench of this court in the case of C.R.Shivananda and Another vs H.C.Gurusiddappa and Others [ILR 2012 KAR 4624] has given the meaning of the word 'constructive trust' as:-
"29. A constructive trust has a well known meaning in English law and its essential characteristic is that it arises by operation of law independently of the act of parties. In other words, a constructive trust arises not by act of parties but by operation of law, as for example, when a trustee gains some personal advantages by availing himself of his position as a trustee. Constructive trustee and a trustee de son tort are synonymous expressions. A person who without title chooses to take upon himself the character of a trustee becomes a trustee de son tort and is liable to 18 account for what he has done or what he has received while so acting in the same way as if he were a de jure trustee. Such person may be described as a de facto trustee or a trustee de son tort and is distinguishable from a trespasser out and out who does not support to act as a trustee at all but claims adversely to the trust".
12. Here in this case the appellants assert the existence of constructive trust so far as the lands in question are concerned. But, the contention of respondent No.2 and other respondents is that after vesting of lands with the Government pursuant to coming into force of Mysore (Religious and Inams) Abolition Act and registration of cultivation rights in favour of respondent No.2, the original character of possession held by respondent No.2 extinguished and he became the absolute owner. Sri Jayakumar S Patil, learned senior counsel appearing on behalf of respondent No.2 has placed reliance on Division Bench judgments of this court in the cases of Stumpp Scheule and Somappa (P) Ltd vs Chandrappa [ILR 1985 KAR 3872] and Krishnamurthy vs Hemanna [ILR 1987 KAR 1466] and argued that the civil courts have no jurisdiction to reopen the matters when a statutory authority 19 passes an order granting cultivation rights to the tenants. I am in full agreement with this proposition, but the question here is slightly different. The appellants do not say or have not questioned the grant of cultivation rights to respondent No.2. What they say is that respondent No.2 applied for cultivation rights on behalf of the villagers so that the status that existed before the vesting of land with the Government would continue even after grant of cultivation rights. They vehemently assert that respondent No.2 did make a representation even before Land Tribunal that he was cultivating the lands on behalf of the villagers and even that was the stand he took in the statement of objections filed by him in the writ petition and thereby he cannot contend that the lands belong to him absolutely after grant of cultivation right. I find that these averments in the petition under section 92 are sufficient enough to hold that a constructive trust is in existence in so far as the properties are concerned.
13. I find force in Sri Y.K.Narayan Sharma's argument that there is difference between 'person holding a 20 property in his name' and 'person holding property in his personal capacity'. If a person holds property in his personal capacity, he gets absolute right whereas holding in personal name may not confer him absolute right, circumstances decide the nature of holding. It is true that these properties do not find a place in the trust deed, but there is no bar for holding those properties constructively for achieving the objects of the trust that are of religious and charitable in nature. Admittedly, respondent No.2 has sold the lands; It is in this background that the appellants complain breach of trust. Therefore, the petition averments clearly disclose requirements for permitting the appellants to sue for the reliefs claimed in the plaint annexed to the petition under section 92 CPC. This was all that the District Court was required to examine, but paras 26 and 27 of the impugned order show the District Court having given finding that respondent No.2 has become absolute owner consequent to granting of occupancy rights. At the stage of deciding application under section 92 such a finding cannot be given. 21
14. In fact, the decision of this court in the case of The Church of South India, Trust Association, Company by its Secretary, P.I.Chandy [ILR 1980 KAR 1051] has explained the scope of enquiry under section 92 CPC as under :-
"24. Re: Point No.III What is the scope of inquiry in an application made under Section 92 of the code?
In considering an application under Section 92 of the Code and granting leave if it so decides, the Court only lifts an initial impediment or a bar on the persons that claim to have an interest in a public trust to institute a suit in a Court without finally deciding any of the controversies in the suit to be filed by such persons.
Any expression of opinion by the Court on an application is only for the purpose of that application and does not bind the parties or the Court itself which has to finally decide the suit.
25. A suit filed under Section 92 of the Code is a suit of a special nature vide Swami Parmatmanand Saraswati and another Vs. Ramji Tripathi and another (AIR 1974 SC 2411). In considering application for grant of leave, the Court has to consider (i) Whether there is a 22 public trust, (ii) whether there are allegations alleging breach of trust or the directions of the Court was necessary for the administration of such a trust; (iii) that the suit to be filed must not only be in the interest of the plaintiffs individually but in the interest of the public or in the interest of the trust itself; and (iv) that relief to be claimed in the suit should be for one of the reliefs mentioned in Section 92 of the Code. While considering an application, the Court has to see only the allegations made in the application and the proposed plaint, without holding an inquiry into the truth or otherwise of those allegations. Even the opponents are only entitled to show that all or any of the factors necessary to give leave do not exist or any other threshold bar like a previous suit filed by two or more persons on the very same allegations for the very same reliefs had been dismissed by that or another Court. What pleas can be urged as threshold bar cannot be exhaustively enumerated but has to be decided on the facts and circumstances of each case. An inquiry under Section 92 is very limited. An examination of the order made by the learned District Judge discloses that he has not really applied his mind and has not found that leave was necessary to be granted and in that view also it is clear that he has acted with material irregularity affecting his jurisdiction."23
15. Sri Ashok Harnahalli, learned senior counsel, referred to a judgment of the Supreme Court in the case of Swami Paramatmanand Saraswathi and Another vs Ramji Tripathi and Another [1974 (2) SCC 695] to argue that section 92 CPC is not meant for vindicating personal right. Only when there is allegation about breach of trust, a direction of the court is necessary for administration of a trust and that the plaintiff must pray for one or more of the reliefs mentioned in the section. Sri Jayakumar S Patil also referred to another judgment of the Supreme Court in the case of Vidyodaya Trust vs Mohan Prasad and Others [(2008) 4 SCC 115] and argued that section 92 CPC is not meant for vindication of personal right and the allegations made in the petition here do not disclose public interest and all that the appellants want is to assail the ownership of respondent No.2. I do not think that these two decisions fortify the stand of the respondents. Being in full agreement with the principles laid down in these decisions, it is to be stated that reading of the petition as a whole does not 24 indicate any intention on the part of the appellants to vindicate their personal rights.
16. Therefore, from the foregoing discussion, I come to the conclusion that the Principal District Judge, Mysuru, has misdirected himself in giving a finding with regard to title of respondent No.2 at the initial stage. His order is not sustainable. The averments in the petition disclose existence of a trust and allegations about breach of trust. The appellants need to be permitted to sue the defendants for the reliefs they have sought for in the plaint. Hence, the following order : -
(a) Appeal is allowed.
(b) The order dated 29.5.2018 in Mis. No. 8/2012
on the file of the Principal District and Sessions Judge, Mysuru, is set aside.
(c) Petition under section 92 CPC is allowed.
(d) Appellants are permitted to sue the respondents for the reliefs claimed in the plaint.
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(e) The District Court, Mysuru, is directed to register the suit and adjudicate the same according to law.
SD/-
JUDGE KMV/ckl