Bangalore District Court
Erappa vs Sri Venkateshwara on 1 August, 2016
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 1st day of August, 2016.
PRESENT:
Sri PATIL NAGALINGANAGOUDA, B.A.,LL.B.(Spl.),
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.3400/2007
PLAINTIFFS : 1. Erappa,
S/o. Late Gidde Gowda,
Aged about 69 years,
Residing at No.307,
6th Cross, 7th Main,
RPC Lay-out,
Bengaluru - 560 040.
2. Krishnapa,
S/o. Late Thimmaiah,
Aged about 70 years,
Residing at No.397,
6th Cross, 7th Main,
RPC Lay-out,
Bengaluru - 560 040,
represented by his General
Power of Attorney holder -
plaintiff No.1 - Erappa.
(By Sri K. Suryaprakash, Advocate)
-VERSUS-
DEFENDANTS : 1. Sri Venkateshwara
Devalayada Seva Trust, 7th
'B' Main Road, R.P.C. Lay-
Cont'd..
-2- O.S. No.3400/2007
out, Vijayanagar, Bengaluru
- 560 040, represented by
its President.
2. Seenappa,
(Defendant No.2's father's
name is not known to the
plaintiffs),
Aged about 40 years,
President of Sri
Venkateshwara Devalayada
Seva Trust, 7th 'B' Main
Road, R.P.C. Lay-out,
Vijayanagar, Bengaluru-40.
3. V. Krishnappa,
(Defendant No.2's father's
name is not known to the
plaintiffs),
Aged about 40 years,
Secretary, Sri
Venkateshwara Devalayada
Seva Trust, 7th 'B' Main
Road, R.P.C. Lay-out,
Vijayanagar, Bengaluru-40.
4. T. Seetharama,
S/o. Late Patel Thimmegowda,
Aged about 55 years,
Residing at Dodda Malur,
Malur post, Chennapatna
taluk, Ramanagaram
district.
5. B. Narayana,
S/o. Late Bettegowda,
Aged about 505 years,
Residing at Dodda Malur,
Malur post, Chennapatna
taluk, Ramanagaram
district.
(Defendants 1 and 2 by Sri
N. Nagaraj, Advocate)
(Defendant No.3 by Sri
Papireddy, Advocate)
Cont'd..
-3- O.S. No.3400/2007
(Defendant Nos.4 and 5 by Sri
Dattatreya M. Joshi, Advocate)
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Date of Institution of the Suit : 27-04-2007
Nature of the Suit (Suit on : For permanent injunction.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 04-04-2016
of recording of the evidence
Date on which the Judgment : 01-08-2016
was pronounced
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Year/s Month/s Day/s
----------------------------------
Total duration : 9 years, 3 months, 4 days.
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(PATIL NAGALINGANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.
JUDGMENT
This is a suit filed by the plaintiffs against defendants 1 to 5 for relief of permanent injunction restraining the defendants or anybody claiming through them from interfering in any manner with plaintiffs' peaceful possession and enjoyment of the suit schedule property and to direct the defendants 1 to 3 to demolish all the illegal constructions put up by them in the schedule 'A' property and in the schedule 'B' property by way of mandatory injunction and to restrain defendants 1 to 3 by way of mandatory injunction directing them not to interfere in conducting worship, functions and Cont'd..
-4- O.S. No.3400/2007 religious ceremonies in Sree Venkateshwara Temple constructed on the suit schedule property.
2. The brief facts of the plaint are as under:-
Plaintiffs are contended they are absolute owners of the suit schedule 'A' property having purchased the said land from its previous owner viz., Chinnathayapa for valuable consideration by virtue of sale deed dated 10-03-1954. On the basis of the sale deed, plaintiffs are in actual possession of suit schedule 'A' property. Since property has purchased for valuable consideration of Rs.80-00 therefore sale deed executed by Chinnathayappa @ Chikkathayappa was not registered. However, the sale deed was drawn an adequate stamp paper. Plaintiffs have been in continuous and uninterrupted possession and enjoyment of the said land since 1954 i.e., for over 51 years exercising all the rights of ownership therein. During passage of time, agricultural land has lost its agricultural characteristics. Plaintiffs have applied to the Bengaluru Mahanagara Palike for registering Khata in their name. In turn they have issued two endorsements dated 22- 04-1993 and 26-02-1993 and the matter is still pending for consideration. Plaintiffs once again applied B.M.P. authorities for registration of Khata in respect of schedule 'A' property. On 24-02-2007, B.M.P. have sent endorsement to the first plaintiff asking him to produce relevant documents. Plaintiffs have paid certain amounts as taxes under self-assessment scheme to the Cont'd..
-5- O.S. No.3400/2007 B.M.P. As per the licence issued by the Village Patel of Kempapura village dated 01-04-1957, plaintiffs have put up certain construction over portion of the schedule 'A' property. It is submitted earlier City Improvement Trust Board had issued notification to acquire schedule 'A' property and in the said notification, name of the vendor of the plaintiff shown as Chinnathayapa @ Chikkathayappa. Pursuant to the said notification, plaintiffs and similar other owners had submitted representation to the C.I.T.B. through the President, Bapuji Nagar and Attiguppe Extension Site Owners' Association to re-convey the said lands. Thereafter, during the year 1973-74, the C.I.T.B. re-conveyed the suit schedule 'A' property in favour of the President, Bapuji Nagar and Attiguppe Extension Site Owners' Association, Bengaluru on payment of valuable consideration and in the said process suit schedule 'A' property exclusively vests with the plaintiff free from encumbrance.
It is submitted prior to all the above developments, the plaintiffs had filed O.S. No.3862/1989 against one Mattadaiah for permanent injunction in respect of portion of the suit schedule 'A' property. During pendency of the suit, defendant passed away therefore, the suit became abated.
It is submitted on the North-West side of the suit schedule 'A' property, there is a temple known as Sri Venkateshwara Temple. Plaintiffs have permitted the Cont'd..
-6- O.S. No.3400/2007 first defendant trust to construct the above temple. Defendants are indulged in various unlawful acts. Defendants 2 and 3 have failed to achieve objectives of the trust. The income derived from the temple has been diverted to the personal gain of the trustees. Defendants 2 and 3 are mismanaging the affairs of the religious trust. They have also taken up illegal construction in the land adjacent to the temple being portion of the schedule 'A' property. It is submitted defendants 1 to 3 after institution of the suit have put up illegal construction in a portion of the schedule 'A' property i.e., an area of 60 feet x 120 feet. Defendants 1 to 3 have constructed temporary illegal construction with sheet roofing as well as with R.C.C. roofing. The constructions are illegal and have been constructed in violation of order of temporary injunction passed by this Court. The said constructions have come up after grant of temporary injunction order against defendants 1 to 3 by this Court. Defendants 1 to 3 are required to demolish the said structure. Defendants 1 to 3 have no manner of right, title and interest to encroach upon the 'A' schedule property or to encroach upon 'B' schedule property, therefore plaintiffs are entitled for mandatory injunction against defendants 1 to 3 to direct them to demolish the illegal construction put up by them subsequent to institution of the suit.
It is submitted the above act of interference on the part of the defendants was sudden. Therefore, plaintiff Cont'd..
-7- O.S. No.3400/2007 approached the second defendant and questioned their authority to commit the said acts of trespass. It is submitted on 22-04-2005 at about 4:00 p.m., plaintiff had orally complained to the jurisdictional police who have advised the plaintiff to approach the competent Court. It is submitted first defendant trust has violated the provisions of the Indian Trust Act. As per the contents of the trust deed, the trust does not hold any immovable property. Therefore, the above trust has nothing to do with the affairs of Sri Venkateshwara Temple constructed in the suit schedule property belonging to the first plaintiff and devotees. With this submission, plaintiffs prayed to decree the suit.
3. On the other hand, in pursuance of summons, defendants have appeared through their respective Counsel and out of them, defendant No.3 filed written statement and additional written statement. Defendants 1 and 2 filed memo to adopt the written statement of defendant No.3. Defendants 4 and 5 have filed separate written statement. The brief facts of the written statement and additional written statement of defendants 1 to 3 are as under -
Defendants have denied Survey No.109 belonging to one Chinnathayappa and plaintiff had purchased schedule land under an unregistered sale deed and since then, plaintiffs are in possession and enjoyment of the said land. Defendants have denied claim of the plaintiff that they became owners of the said land by Cont'd..
-8- O.S. No.3400/2007 applying for registration of the Khata in their name and B.M.P. had issued endorsement. They have also denied that plaintiffs submitted representation to C.I.T.B. through the President, Bapuji Nagar and Attiguppe Extension Site Owners' Association to re-convey the lands. It is submitted plaintiff have not been in possession and enjoyment of the suit schedule property at any point of time and plaintiffs have no manner of right, title and interest over the suit schedule 'A' and 'B' property. Defendants have denied that plaintiffs have permitted the first defendant trust to construct Venkateshwara Temple on the North-West side of the suit 'A' schedule property and defendants 2 and 3 are mismanaging affairs of the said religious trust. It is submitted description of the suit 'A' schedule and 'B' schedule property are misleading and they do not disclose proper identification of the schedule property.
It is submitted in the year 1997-1998, Venkateshwara Temple was constructed by the devotees and same was inaugurated on 18-02-1998 and since then, the devotees have been visiting the said temple and poojas have been continuously performed therein. During the year 2000, Navagraha Temple has been constructed by the devotees and temple was inaugurated on 10-03-2000 and since then, poojas have been performed therein. The devotees have been visiting the said temple regularly without any hindrance. It is submitted in between Venkateshwara Cont'd..
-9- O.S. No.3400/2007 Temple and Navagraha Temple, Venkateshwara
Prarthana Mandir has been constructed by the B.M.P. through the contractor M.B. Gurudev by spending Rs.5,00,000-00 by its work order dated 06-08-2004 and the said bill of the contractor was settled to him by the B.M.P. on 31-12-2005. Since then, the devotees of said Venkateshwara Temple have been making use and the said Prarthana Mandir into which Venkateshwara Swamy Temple main door is located for the purpose of poojas and prayers. To the Northern side of the said Venkateshwara Swamy Temple, 40 residential houses belonging to different persons are located in a row by the side of the main road. Thereafter, there is big Vinayaka Temple and by its side also number of residential houses belonging to various persons are located in a row. It appears plaintiff are claiming entire property wherein all these residential houses belonging to general public are located as part and parcel of the suit schedule property. In fact, Venkateshwara Temple was constructed during 1997-1998 whereas first plaintiff trust came into existence on 25-01-2000. The trust is looking after the welfare of the devotees who visit the said temple and also maintenance of the temple. It is submitted suit is bad for non-joinder of necessary parties viz., B.M.P. which had constructed Venkateshwara Prarthana Mandir which is part of the Venkateshwara Temple. It is submitted renovation of Venkateshwara Temple and Gopuram on the said temple was also completed and re-installation of the old Cont'd..
- 10 - O.S. No.3400/2007 idols of Venkateshwara Swamy, Bhoodevi and Sridevi in the existing temple have to be performed. In the mean while, with a view to cause irreparable injury to the feelings of the devotees of the temple, plaintiffs have filed this suit taking up false and untenable contentions. Lastly, it is submitted suit is hopelessly barred by law of limitation as they are not in possession of the 'B' schedule property and the suit for bare injunction without seeking relief of declaration of title is not tenable.
Defendants by way of additional written statement have denied that they had constructed temporary illegal constructions with sheet roofing as well as R.C.C. roofing as alleged by the plaintiff. Defendants have denied that plaintiffs are entitled for the relief of mandatory injunction against them to demolish illegal construction put up by them. They have also denied first defendant trust has violated the provisions of Indian Trust Act. It is submitted since C.I.T.B. had acquired schedule land, plaintiff No.1 has no semblance of legal right to question the legality and validity of the trust deed dated 25-01-2000. With this submission, defendants 1 to 3 prayed to dismiss the suit.
The brief facts of the written statement of the defendants 4 and 5 are as under.
In fact, defendants 4 and 5 partly supported the version of the plaintiff. They have taken contention that Cont'd..
- 11 - O.S. No.3400/2007 they are the devotees of Venkateshwara Swamy Temple situated at the land bearing Survey No.109 of Kempapura-Agrahara village, Bengaluru which is situated within the limits of B.M.P. It is submitted there are number of devotees in the above said temple and they have contributed funds for construction of the temple and the above said temple was constructed by the devotees on the land belonging to the plaintiff with their permission. It is submitted defendants 1 to 3 do not have any manner of exclusive right, title and interest to manage the affairs of the temple. The said temple is constructed on the land belonging to plaintiffs and plaintiffs have permitted the devotees to construct the temple. Office bearers of the first defendant Trust do not got any manner of right to manage the affairs of the temple. Defendants have noticed defendants 2 and 3 have taken up illegal construction in the land adjacent to the temple being portion of 'A' schedule property. Defendants 2 and 3 are collecting huge sums from the devotees and the public under the guise of managing the affairs of the temple and under the guise of performing special poojas. Lastly, it is submitted defendants 1 to 3 have no authority to manage the affairs of the temple and they cannot interfere with the affairs of the schedule 'B' property by the plaintiff. With this submission, defendants 4 and 5 prayed to pass judgment and decree against Defendant No.1 to 3 for relief of permanent injunction.
Cont'd..
- 12 - O.S. No.3400/2007
4. On the basis of the above said pleadings, this Court has framed the following -
ISSUES
1. Whether plaintiffs prove that they are in lawful possession over suit schedule A property as on the date of filing of the suit?
2. Whether plaintiffs prove defendants have taken up illegal construction in the land adjacent to temple i.e., B schedule property which is being portion of A schedule property ?
3. Whether plaintiffs prove defendants have constructed temporary illegal construction in the portion of A schedule property i.e., in an area 60feet x 120 feet?
4. Whether plaintiffs prove alleged interference of the defendants in respect of A and B schedule properties?
Cont'd..
- 13 - O.S. No.3400/2007
5. Whether plaintiffs are entitled for relief of permanent injunction as sought?
6. Whether plaintiffs are entitled for relief of Mandatory Injunction as sought?
7. Whether suit in the present form without seeking relief of declaration is maintainable?
8. Whether suit is bad for non joinder of necessary party?
9. What order or decree?
5. In order to substantiate the plaint averments, plaintiff No.1 himself examined as P.W.1 and got documents marked as per Exs.P.1 to P.42 and closed his side. When case posted for defendants' evidence, defendant No.3 himself examined as D.W.1 and got documents marked as per Exs.D.1 to D.38.
6. I have heard the arguments from both sides.
7. At the time of argument, Advocate for plaintiffs submitted notes of argument and relied on rulings. Advocate for defendant No.3 also relied on rulings.
8. My findings on the above Issues are as follows:-
Cont'd..
- 14 - O.S. No.3400/2007
ISSUE No.1 - Negative;
ISSUE No.2 - Negative;
ISSUE No.3 - Negative;
ISSUE No.4 - Negative;
ISSUE No.5 - Negative;
ISSUE No.6 - Negative;
ISSUE No.7 - Negative;
ISSUE No.8 - Affirmative;
ISSUE No.9 - As per final order,
for the following -
REASONS
9. ISSUE No.1 : At the time of argument, Advocate for plaintiff has vehemently argued initially suit was filed for relief of permanent injunction against defendants 1 to 3 and thereafter plaintiff got amended the plaint and sought for relief of mandatory injunction in respect of 'B' schedule property. Further, it is argued plaintiffs are the absolute owners and in possession of the suit schedule 'A' property having purchased the same under registered sale deed dated 10-03-1954.
Since from the date of the said sale deed plaintiffs are in actual possession and enjoyment of the said property.
Cont'd..
- 15 - O.S. No.3400/2007 It is argued though C.I.T.B. had issued notification to acquire the said property and thereafter on the basis of the representation submitted by plaintiffs through the President of Bapuji Nagar and Attiguppe Extension Site Owners' Association, suit property was re-conveyed to the President of the above said Association for valuable consideration, thus schedule property vests with the plaintiffs. It is argued plaintiffs in order to prove lawful possession over 'A' and 'B' schedule properties have produced title deed i.e., sale deed dated 10-03-1954, encumbrance certificate, judgment of O.S. No.8414/2005 wherein it is held plaintiff is in possession of the suit schedule property. It is argued at an undisputed point of time plaintiff has filed a suit against one Matadaiah way back in the year 1989 for relief of permanent injunction. It is argued the documents produced by the plaintiff are sufficient to hold that plaintiffs are in possession of the suit schedule property. With this submission, Advocate for plaintiffs prayed to answer Issue No.1 in favour of the plaintiffs.
10. On the other hand, Advocate for defendants argued on perusal of the prayer of the plaintiffs in the suit, it reveals prayer is not specific. Further, he has argued preventive relief cannot be asked by way of mandatory injunction and description of the property of Survey No.109 shown as 'A' and 'B' schedule property is not clear. It is argued even it is not clear whether 'B' Cont'd..
- 16 - O.S. No.3400/2007 schedule property is part of 'A' schedule property or separate property. It is argued though there are two plaintiffs, though second plaintiff died, it was not reported to the Court, therefore suit filed by the plaintiff No.2 stands abated by operation of law and no specific order is required. It is argued though plaintiffs are claiming joint ownership over the suit schedule property, though plaintiffs have produced copy of the Will, but plaintiffs have not established the contents of the Will. It is argued plaintiffs are not in possession of the suit schedule property because plaintiffs have admitted they handed over possession of the suit schedule property for construction of the temple to the devotees. With this submission, Advocate for defendants prayed to answer Issue No.1 in favour of the defendants.
11. On perusal of the oral as well as documentary evidence of both the sides and on the basis of settled position of law, I am of the opinion that plaintiffs have failed to prove that they are in lawful possession of the suit schedule property as on the date of filing of the suit. In order to prove lawful possession over the suit schedule property, plaintiff has produced certified copy of the sale deed dated 10-03-1954 which is marked as per Ex.P.34. Further, plaintiff has produced letter issued by the UCO Bank and letter submitted by the plaintiff to the UCO Bank marked as per Exs.P.1 and P.2. Admittedly, Exs.P.1 and P.2 are dated 05-12-2012 and 03-12-2012 respectively which are subsequent Cont'd..
- 17 - O.S. No.3400/2007 document of the suit. Ex.P.3 is encumbrance certificate for the period from July 2011 to December 2012. Ex.P.4 is also encumbrance for the period from 01-04- 2007 to 18-02-2009. Plaintiff has also produced encumbrance certificate for the period from 17-02-2003 to 31-03-2005, 01-04-2005 to 08-08-2006 and 22-12- 2007 to 19-07-2008 marked as per Exs.P.22 to P.24 respectively. Further, plaintiff has produced representation submitted to the Group Panchayath, Kempapura marked as per Ex.P.29, endorsement issued by the Patel of Kempapura Group Panchayath marked as per Ex.P.30, records of right, index of lands documents, tax paid receipts which are marked as per Exs.P.31 to P.33. Admittedly, the above said documents are not title documents except the sale deed which is marked as per Ex.P.34. It is settled position of law entries in the revenue records do not convey any ownership right over property. No doubt plaintiff has produced some other documents viz., endorsement issued by the Bank authorities and certified copy of the orders passed in various judicial proceedings, they are not helpful to the case of the plaintiff to prove their lawful possession over the suit schedule property as on the date of the suit. Admittedly, all the encumbrance certificates which plaintiff had obtained are in respect of 00-36 guntas of land of Survey No.109, R.P.C. Lay-out, Kempapura Agrahara, Kasba hobli, Bengaluru North taluk. Since plaintiff No.1 has applied for encumbrance certificate, those encumbrance certificates had been Cont'd..
- 18 - O.S. No.3400/2007 issued in his favour. Therefore, contents of those
documents do not convey ownership right to the plaintiff to claim possession over the suit schedule property. If really plaintiff is in possession of the suit schedule property as on the date of the suit, it is not clear why he has not produced latest R.T.C. extract or demand register extract or Khata extract in respect of the suit schedule property. In the plaint itself, plaintiff has contended during the passage of time, agricultural land has lost its agricultural characteristics. If that being the case, it is not clear why he has not produced relevant records before this Court. No doubt plaintiff has produced letter issued by the BESCOM to the plaintiff No.1 with regard to power supply marked as per Exs.P.37 to P.41. Even those documents are also not helpful to the case of the plaintiff. Admittedly, description of the schedule property has not mentioned in the above said document. No doubt name and address of the plaintiff mentioned as No.109, 14th Cross, 8th Main, R.P.C. Lay-out, Vijayanagar, but that itself is not a ground to come to conclusion that plaintiff is in lawful possession over the suit 'A' schedule property as on the date of the suit.
12. As I have discussed above, plaintiff has produced endorsement issued by the UCO Bank and representation submitted to the UCO Bank which are marked as per Exs.P.1 and P.2, hand bill regarding auction sale by UCO Bank marked as per Ex.P.20.
Cont'd..
- 19 - O.S. No.3400/2007 Even those documents not helpful to the case of the plaintiff. It is the case of the plaintiff original sale deed and other documents pertaining to the suit schedule 'A' property are deposited in UCO Bank, Indira Nagar Branch for having availed loan. It is also case of the plaintiff he has offered the suit schedule 'A' property as security for the grant of loan. Further case of the plaintiff he is the guarantor of the grant of loan by UCO Bank, Indira Nagar Branch. The borrower who has borrowed the loan has not repaid the loan amount and therefore, original documents to the suit schedule 'A' property are now in the UCO Bank therefore, he has produced certified copy before this Court. It is pertinent to note here that the above said contention has not at all pleaded by the plaintiff in the plaint. For the first time, he has taken the above said contention in his oral evidence i.e., 04-04-2016. In the entire pleading, plaintiff has not at all pleaded with regard to deposit of original documents before the Bank when plaintiff has stood as surety to the loan availed by third person. In the cross-examination, P.W.1 has specifically admitted he is unable to say who actually borrowed loan from UCO Bank and to whom he stood as surety. Further, he has admitted he is unable to say what are the documents which he has produced before the UCO Bank when he stood as surety. He pleads his ignorance case has been registered by the C.B.I. with regard to grant of loan pertaining to suit schedule property with an allegation all the documents are created and Cont'd..
- 20 - O.S. No.3400/2007 concocted. He also pleads his ignorance Manager of the said Bank was dismissed from service on the ground that he has granted loan without verifying the genuineness of the document. These are the admissions of P.W.1 creates doubt in the mind of the Court with regard to contents of the document more particularly endorsement issued by the Bank authorities. Hence, contents of those documents not helpful to the case of the plaintiff to prove Issue No.1.
13. Plaintiff has also produced some more documents to prove lawful possession over the suit schedule property more particularly judgment passed in O.S. No.8414/2005 which is filed by the plaintiffs against the General Manager, Southern Railway. Admittedly, the said suit filed by the plaintiff for relief of permanent injunction against Railway Authorities and said suit came to be decreed. Admittedly, it is not a suit filed by the plaintiff for the relief of declaration of ownership over the suit schedule property. Therefore, the judgment passed in O.S. No.8414/2005 alone is not sufficient to prove lawful possession over the suit schedule property as on the date of the suit. Admittedly, defendants of the present case are not parties to the said suit. Plaintiff has produced order sheet of O.S. No.3862/1999 which is filed by the plaintiffs against one Matadaiah. Ex.P.10 is the copy of the plaint of O.S. No.3862/1999. Ex.P.11 is the memo filed in the said suit. Ex.P.12 is copy of decree passed Cont'd..
- 21 - O.S. No.3400/2007 in the said suit. Admittedly, the said suit was not
disposed on merits of the case and the suit of the plaintiff was abated against the defendant. Therefore, the contents of Exs.P.9 to P.12 are also not helpful to the case of the plaintiff to prove Issue No.1.
14. Plaintiff has also produced copy of the Execution Petition No.363/2013 filed against one Smt. Puttamma, copy of the notice, copy of the mahazar, copy of delivery warrant, copy of order sheet of Execution Petition No.363/2013 which are marked as per Exs.P.15 to P.19. Those documents are in respect of the property which was in possession of Smt. Puttamma. In the above said document, property number is shown as property constructed on the land bearing Survey No.109 of K.P. Agrahara hobli within the limits of B.B.M.P. measuring 30 feet x 40 feet with sheet roofing. On perusal of the schedule 'A' of the present suit, nowhere plaintiff has mentioned some houses or sheds constructed over the property bearing Survey No.109 of K.P. Agrahara. Simply in the schedule 'A' it has mentioned all that piece and parcel of the property bearing Survey No.109, K.P. Agrahara to an extent of 00-36 guntas now within the limits of B.B.M.P. Ward No.34. When schedule 'A' does not disclose with regard to existence of house properties as on the date of the suit, contents of Exs.P.15 to P.19 are also not helpful to the case of the plaintiff and similarly, Ex.P.21 which is Cont'd..
- 22 - O.S. No.3400/2007 the self-assessment property tax scheme document not helpful to the case of the plaintiff to prove Issue No.1.
15. Apart from this, the very pleading of the plaintiff is inconsistent and it destructs the claim of the plaintiff over the suit schedule property. Because plaintiff has pleaded C.I.T.B. had issued notification to acquire the suit 'A' schedule property and thereafter they had submitted representation to the C.I.T.B. through the President, Bapuji Nagar and Attibele Extension Site Owners' Association to re-convey the said lands and accordingly, C.I.T.B. re-conveyed schedule 'A' property in favour of the President of the said Association. When plaintiff has pleaded that C.I.T.B. had issued notification to acquire 'A' schedule property when plaintiff has produced Ex.P.6 which is the notification issued by the C.I.T.B., without any hesitation, it is to be held entire property Survey No.109, 8 acres 28 guntas which was standing in the name of Chinnathayappa was vested with the C.I.T.B. Admittedly, Ex.P.6 is the notification dated 21-12-1963 i.e., subsequent of the sale deed obtained by the plaintiff in the year 1954. When C.I.T.B. has acquired the entire Survey No.109 measuring 8 acres 28 guntas though plaintiff had obtained sale deed as per Ex.P.34, he has lost his possession over the suit schedule 'A' property as on 21-12-1963. It is not the case of the plaintiff C.I.T.B. had re-conveyed the suit schedule 'A' property in his favour. It is the case of the plaintiff Cont'd..
- 23 - O.S. No.3400/2007 C.I.T.B. had re-conveyed the entire Survey No.109 of K.P. Agrahara in favour of the President, Bapuji Nagar and Attibele Site Owners' Association for valuable consideration. If that being the case, it can be presumed entire Survey No.109 of K.P. Agrahara was in possession of the President of the said Association and not in possession of the plaintiff. Even it is not the case of the plaintiff again he has obtained sale deed or any conveyance deed in respect of 'A' schedule property by the President of the said Association. Therefore, the very pleading of the plaintiff destructs his case with regard to lawful possession over the suit schedule property. No doubt plaintiff has produced re-conveyance deed executed by C.I.T.B. in favour of the President of the above said Association which is marked as Ex.P.25 but contents of the said document not helpful to the case of the plaintiff to prove Issue No.1 for the above said reasons. Admittedly, plaintiff has not produced any piece of document to show he has obtained any conveyance deed in respect of the suit 'A' schedule property from the President of the above said Association. In the cross-examination, P.W.1 has specifically admitted C.I.T.B. acquired 8 acres 28 guntas of Survey No.109 of K.P. Agrahara. He has denied in view of acquisition notification entire property vested with the C.I.T.B. P.W.1 voluntarily deposed except 'A' schedule property, remaining property vested with the C.I.T.B. in view of acquisition of notification. If that being the case, it is not clear why plaintiff has not Cont'd..
- 24 - O.S. No.3400/2007 produced document to show except property which is in his possession remaining property vested with the C.I.T.B. He has also admitted he has no documents in that regard. Further, he has admitted C.I.T.B. has re- conveyed 75,904 square feet in favour of the President of the above said Association pertaining to Survey Nos.109, 110,111 and 137. Further, he has deposed Bapuji Nagar and Attibele Extension Site Owners' Association has executed a document in favour of schedule 'A' property in their letterhead. Further, he has deposed in the said letter, the said Association has authorised him to retain possession of 00-36 guntas of land. If that being the case, it is not clear why he has not produced such document before the Court. Hence, an adverse inference has to be drawn against the plaintiff. Apart from this, in the cross-examination he has admitted in the year 1956-57, he has constructed 10 houses in the schedule 'A' property. If that being the case, it is not clear why he has not produced any relevant records before the Court. Viewed from any angle, I am of the opinion that plaintiff has failed to prove Issue No.1 in his favour.
16. It is another contention of the plaintiff since 1954 they have been in continuous and uninterrupted possession and enjoyment of the suit schedule 'A' property and he has applied to Bengaluru City Corporation for registering Khata in their name. In turn, officials have issued two endorsements and matter Cont'd..
- 25 - O.S. No.3400/2007 is still pending for consideration. Further, it is the case of the plaintiff once again he has approached B.M.P. authorities for registration of Khata in respect of schedule 'A' property and on 24-02-2007, B.M.P. authorities have sent an endorsement to the first plaintiff asking him to produce relevant documents. Admittedly, plaintiff has not produced endorsement issued by the Bengaluru City Corporation dated 22-04- 1993 and 26-03-1993. Plaintiff has produced one letter issued by the Under Secretary, Urban Development Department to the Commissioner, B.B.M.P. on 05-01- 2007 which is marked as per Ex.P.5. In the said letter, it has mentioned plaintiff No.1 has requested the Government to change Khata to an extent of 00-36 guntas of Survey No.109 of K.P. Agrahara. Admittedly, as per Ex.P.5, Under Secretary has forwarded representation submitted by the plaintiff to the B.B.M.P. Contents of the above said documents also not helpful to the case of the plaintiff to prove lawful possession over the suit schedule property. Though plaintiff has relied sale deed of 1954, but there is no R.T.C. extract and Khata extract in the name of the plaintiff from 1954 till date of filing of the suit in respect of 'A' schedule property. At the cost of repetition, I would like to say plaintiff has not produced any piece of document to show schedule property was standing in his name from 1954 to 1963 i.e., from the date of sale deed till acquisition notification issued by the C.I.T.B. Even plaintiff has not produced any documents to show Cont'd..
- 26 - O.S. No.3400/2007 schedule property was standing in his name from the date of the re-conveyance deed till filing of the suit. As I have discussed above, the plaintiff has not produced any piece of document to that President of the above said Association has executed any re-conveyance deed in respect of the schedule property in his favour. Hence, the documents relied on by the plaintiff which are marked as per Exs.P.1 to P.42 not sufficient for the plaintiff to prove Issue No.1. No doubt plaintiff has obtained decree for permanent injunction in O.S. No.8414/2015 it is not binding on the defendant, because defendants are not parties to the above said suit. Apart from this in the cross-examination, P.W.1 has clearly admitted there are 10 sites towards Southern side of Venkateshwara Swamy Temple in suit schedule property and he has constructed houses over the said site. He had also admitted he has produced documents to show that he has constructed 10 houses. Admittedly, plaintiff has not produced any documents in this regard. Even he has not produced any piece of document to show house numbers have been given to the said house. He has also admitted he is not paying any tax either to 10 sites or to the houses constructed over the said sites. He has also admitted that he has obtained revenue entry on the basis of the registered sale deed of 1954. Admittedly, plaintiff has not produced any documents in this regard. Further, he has admitted he has not at all filed any Writ Petition before the Hon'ble High Court seeking direction to the Cont'd..
- 27 - O.S. No.3400/2007 concerned authority to change Khata in respect of the schedule property in his name. Further, he has admitted with regard to existence of Venkateshwara Swamy Temple in the suit schedule property. He has also admitted some buildings have illegally constructed by the defendants and till today, construction work is in progress. If that being the case, it is not clear why plaintiff has not amended the plaint for recovery of possession of the encroached portion. P.W.1 pleads ignorance to the question whether he has produced any documents to show that schedule property standing in his name since 1954 till filing of the suit. These are the admissions of P.W.1 not helpful to the case of the plaintiff.
17. On the other hand, defendant No.3 being the Secretary of the first defendant Trust has reiterated the averments of the written statement. In his evidence, he has specifically deposed plaintiff is not in possession of the suit schedule property. Further, he has deposed in the year 1997-1998, Venkateshwara Swamy Temple was constructed by the devotees and the same was inaugurated on 18-02-1998 by Sri Balagangadharanatha Swamiji and since then, devotees have been visiting the said temple and poojas were continuously performed therein. Further, he has deposed during the year 2000, Navagraha Temple was constructed by the devotees and the same was inaugurated on 10-03-2000 by the then M.L.A. Cont'd..
- 28 - O.S. No.3400/2007 V. Somanna and since then, poojas have been performed. Further, he has deposed Venkateshwara
Swamy Prarthana Mandira was constructed by B.M.P. through Contractor M.B. Gurudev. Venkateshwara Swamy temple including Prarthana Mandira and Navagraha Temple are situated in the extent of 26 feet :
East-West and 85 feet : North-South. He has also deposed to the Southern side of Venkateshwara Swamy Temple, 40 residential houses are situated belonging to different persons and Mahanagara Palike issued Hakku Pathra in respect of those residential houses. Though D.W.1 cross-examined at length, nothing has been brought on record to disbelieve his evidence.
18. Defendant has produced in all 38 documents which are marked as per Exs.D.1 to D.38. Admittedly, Exs.D.1 and D.2 are the photographs which depicts situation of Venkateshwara Swamy Temple in the suit schedule property. It is also admitted fact Exs.D.1 and D.2 are confronted to P.W.1. Ex.D.5 is the letter issued by the B.M.P. wherein it has specifically mentioned Khata of Survey No.109 is not effected in the name of Veerappa i.e., plaintiff. Ex.D.6 is encumbrance certificate standing in the name of V. Krishnappa pertaining to Survey No.109 of Kemapura Agrahara for the period 01-04-1950 to 31-03-1955. Similarly, encumbrance certificate of Survey No.109 of Kempapura Agrahara produced by the plaintiff marked as per Ex.D.7 for the period 01-04-1955 to 30-09-1966 which Cont'd..
- 29 - O.S. No.3400/2007 is standing in the name of V. Krishnappa. Ex.D.9 are the photographs which depicts the situation of the schedule property. Exs.D.10 and D.11 are the receipts. Ex.D.12 is the hand-bill with regard to arrangement of pooja ceremonies at Venkateshwara Swamy Temple situated in the suit schedule property. Ex.D.13 is the original Trust Deed came into existence on 25-01-2000. Ex.D.15 is the work order issued by the Executive Engineer, B.B.M.P. to one M.B. Gurudev, Contractor to construct Prarthana Mandir at 14th Cross Road, R.P.C. Lay-out, Ward No.14. Ex.D.16 also contract certificate. Exs.D.17 to D.30 are the Auditor's Report with regard to balance sheet of Venkateshwara Devasthanam Seva Trust. Ex.D.31 is order passed by the Principal City Civil and Sessions Judge in Miscellaneous No.712/2010. It discloses one T. Seetharama and others has filed said Miscellaneous Petition against the defendant Trust and others for grant of permission to institute the suit. Admittedly, the said petition was dismissed. Ex.D.32 are the photographs. They disclose with regard to inauguration of the temple by Balagangadharanatha Swamiji and rest of the documents produced by the defendant are also helpful to the case of the defendant to resist the claim of the plaintiff.
19. At the time of argument, Advocate for the plaintiff has vehemently argued and relied on the decisions reported in LAWS(KAR)-2015-4-351 in a case Cont'd..
- 30 - O.S. No.3400/2007 M.S. Shekarappa -versus- Veeramma and others, AIR 2015 SUPREME COURT 2243 in a case Surya Vadanan -
versus- State of Tamil Nadu and others and AIR 1997 SUPREME COURT 2719 in a case Balwant Singh and another, etc. -versus- Daulat Singh (dead) by L.Rs. and others. On careful perusal of the principles laid down in the above said decisions with due respect to the principles laid down in the above said decisions, they are not applicable to the case on hand. In fact, principles laid down in AIR 1997 SUPREME COURT 2719 in a case Balwant Singh and another, etc. -versus- Daulat Singh (dead) by L.Rs. and others applicable to the case of the defendant. In the above said decision, Hon'ble Apex Court held entries in the revenue records do not convey or extinguish any title. Therefore, the document relied by the plaintiff more particularly encumbrance certificate and other revenue records not helpful to the case of the plaintiff to prove Issue No.1. Hence, my answer to Issue No.1 is in the negative.
20. ISSUE NOs.2 TO 4 : Since these Issues are inter-related with each other, they are being taken up together for discussion at a stretch in order to avoid repetition of facts.
21. Since plaintiffs have failed to prove lawful possession over suit schedule 'A' property as on the date of the suit, question of defendants taken up illegal construction in the land adjacent to the temple i.e., 'B' schedule property and question of defendants have Cont'd..
- 31 - O.S. No.3400/2007 constructed temporary illegal construction in the
portion of 'A' schedule property, question of any interference by the defendants over the schedule 'A' and 'B' property does not arise. Since Issues have been framed by this Court, this Court has to answer the above said issues by detailed discussion.
22. The first and foremost thing is plaintiff has failed to describe schedule property in a proper manner. On careful perusal of schedule 'A' and schedule 'B' shown in the plaint, both are one and the same except the measurement shown in 'B' schedule to an extent of 20 feet x 120 feet. In the schedule 'A' and schedule 'B', it has shown both the properties are to an extent of 00- 36 guntas. As rightly pointed out by Advocate for defendant, plaintiff has not at all pleaded and proved that 'B' schedule property is part and parcel of 'A' schedule property. Even for sake of discussion if it is presumed 'B' schedule property is a portion of 'A' schedule property, even then plaintiff has not proved defendants have taken illegal construction in the 'B' schedule property and defendants have constructed temporary illegal construction in the portion of 'A' schedule property. Except his oral say, no iota of documents produced by the plaintiff to prove Issue No.2 to 4. Apart from this in the pleadings itself, plaintiff has pleaded on the North-West side of the schedule 'A' property there is a temple known as Sri Venkateshwara Swamy Temple. Further, he has pleaded they have Cont'd..
- 32 - O.S. No.3400/2007 permitted the first defendant Trust to construct the above temple. Further, plaintiffs have pleaded after institution of the suit, defendants have put up illegal construction in a portion of the schedule 'A' property in an area of 60 feet x 120 feet. They also pleaded defendants have constructed temporary illegal construction with sheet roofing, therefore they are liable to demolish the said structure. It is pertinent to note here that plaintiffs have not at all produced any photographs or any endorsement issued by the B.B.M.P. to show that defendants have constructed illegal construction with sheet roofing as well as R.C.C. roofing. Admittedly, except Exs.P.1 to P.42, plaintiff has not produced any other documents before this Court to prove Issue Nos.2 to 4. No doubt in the pleadings as well as in the oral evidence, plaintiff has pleaded they had orally complained to the jurisdictional police and the police advised them to approach the competent Court. Admittedly, plaintiffs have not adduced evidence of any independent witnesses to prove the above said aspect. In the cross-examination, P.W.1 has clearly admitted he has mentioned boundaries of the schedule 'A' property on the basis of the Gazette Notification. Further, he has admitted he has mentioned description of the 'B' schedule property on the basis of the measurement. Further, he has admitted he has not mentioned with regard to existence of Venkateshwara Swamy Temple either in 'A' schedule property or in 'B' schedule property and there was no impediment for him Cont'd..
- 33 - O.S. No.3400/2007 to mention about situation of Venkateshwara Swamy Temple. Though P.W.1 has taken contention that he has shown the description of 'B' schedule property on the basis of the measurement, but he has not produced any piece of document in this regard. Further, he has admitted he has not at all pleaded with regard to proceedings of O.S. No.8414/2005 in the present suit. Further, he has admitted though there are two suits decreed in his favour in respect of 'A' schedule property, but he is unable to say the numbers of the said suits. He has admitted even he has not pleaded with regard to situation of the temple in the suit schedule property in O.S. No.8414/2005. He has admitted contents of Exs.D.1 and D.2 which are the photographs confronted to him. He has also admitted there are buildings towards Southern side of the temple which depicts in Exs.D.1 and D.2. He has deposed the said constructions are illegal constructions and one Krishnappa has retained shop No.1 illegally and he has also constructed Shop No.2 illegally. He has also deposed even building Nos.3 and 4 also constructed by Krishnappa illegally in the year 1976. He has admitted he has no documents to show that they have permitted defendant No.1 Trust or the devotees to construct the temple in the suit schedule 'A' property. He has also admitted even in Para No.7, he has not pleaded that there are illegal constructions put up by the defendant in the 'A' schedule property. Further, he has admitted there was no impediment to produce photographs with Cont'd..
- 34 - O.S. No.3400/2007 regard to illegal constructions alleged to be put up by the defendants. These are the admissions of P.W.1 not helpful to the case of the plaintiff to prove Issue Nos.2 to 4 in their favour.
23. On the other hand, D.W.1 in his evidence has specifically deposed to the Southern side of Venkateshwara Swamy Temple, 40 residential houses are situated belonging to different persons and thereafter there is a big Vinayaka Swamy Temple and number of residential houses belonging to various persons are existing. Further, he has deposed first defendant Trust came into existence on 25-01-2000, devotees have formed the first defendant Trust for proper management of the temple and to perform its religious functions, office bearers of the trust have been carried out day-to-day activities in the temple, therefore plaintiff No.1 has no semblance of legal right to question the legality and validity of the Trust Deed dated 25-01- 2000. In support of his contention, again defendants have relied on the documents which are marked as per Exs.D.1 to D.38. Though D.W.1 cross-examined at length, nothing has been brought on record to disbelieve his evidence. Hence, my answers to above Issues are in the negative.
24. ISSUE No.7 : In the written statement, defendants have taken specific contention suit in the present form without seeking the relief of declaration is not maintainable. It is an admitted fact initially the suit Cont'd..
- 35 - O.S. No.3400/2007 is filed for permanent injunction restraining the
defendant or anybody claiming through them from interfering in any manner with the plaintiff's peaceful possession and enjoyment of the schedule property. It is also admitted fact during the course of trial, plaintiff got amended the suit for relief of mandatory injunction and sought direction to the defendants 1 to 3 to demolish all the illegal constructions put up by them in the schedule 'A' and 'B' property. Plaintiff has also sought relief of mandatory injunction directing the defendants not to interfere in conducting worship, functions and religious ceremonies in Sri Venkateshwara Swamy Temple constructed in the suit schedule property. As rightly argued by the Advocate for defendant, preventive relief cannot be asked by way of mandatory injunction. It is not the prayer of the plaintiff after demolishing the illegal construction, the said property be handed over to his possession. Even it is not the prayer of the plaintiff to declare that they are only persons entitled to conduct worship, functions and religious ceremonies in Sri Venkateshwara Swamy Temple. In one breath, plaintiff has pleaded they have permitted defendant No.1 Trust to construct the above said temple. In another breath plaintiffs sought relief by way of mandatory injunction directing the defendant not to interfere in conducting worship, functions and religious ceremonies. First of all, plaintiff has not produced any piece of document to show that they permitted defendant No.1 Trust to construct the temple.
Cont'd..
- 36 - O.S. No.3400/2007 Admittedly, as per the Trust Deed, defendant No.1 trust came into existence in the year 2000. Defendants have proved that prior to Trust Deed came into existence, Venkateshwara Swamy Temple has been constructed by the devotees and in fact, it has not been constructed by defendant No.1 Trust. Under such circumstances, suit in the present form without seeking the relief of declaration is not tenable. Advocate for the defendant has relied on the decision of the Hon'ble Apex Court reported in AIR 2008 SUPREME COURT 2033 in a case Anathulla Sudhakar -versus- B. Buchi Reddy (Dead) by L.Rs and others. In the above said decision, Hon'ble Apex Court held where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. In the present case, cloud is raised over the plaintiff's title and plaintiff does not have possession therefore, suit for declaration and possession with or without consequential injunction is the remedy. In my considered view, principle laid down in the above said decision is exactly applicable to the case on hand.
Cont'd..
- 37 - O.S. No.3400/2007
25. Advocate for defendant has relied on another ruling reported in ILR 2007 KAR 339 in a case Sri Aralappa -versus- Sri Jagannath and others and AIR 1993 SUPREME COURT 957 in a case Vinay Krishna -
versus- Keshav Chandra and another. In my considered view, principles laid down in the above said decisions are exactly applicable to the case on hand. Hence, my answer to above Issue is in the negative.
26. ISSUE No.8 : Defendants have also taken contention suit is bad for non-joinder of necessary parties. Admittedly, plaintiff has not made C.I.T.B. as party to the suit. It is also an admitted fact plaintiffs have not made occupants of the buildings or houses situated towards Southern side of Venkateshwara Swamy Temple as parties to the suit. Even plaintiff has not made out B.B.M.P. which constructed Venkateshwara Swamy Prarthana Mandira in the suit schedule property as party to the suit. Hence, I am of the opinion that suit is bad for non-joinder of necessary party.
27. At the time of argument, Advocate for the defendant has vehemently argued though plaintiff No.2 died during the pendency of the suit, it was not reported to the Court by plaintiff No.1 and legal representatives of defendant No.2 are not brought on record. Even it is not the case of the plaintiff No.1 that defendant No.2 died leaving behind no representatives. Further, he has argued this defect has not at all rectified by plaintiff Cont'd..
- 38 - O.S. No.3400/2007 No.1, therefore suit by operation of law stands abated against plaintiff No.2. In view of the above said submission, I am of the opinion that suit is also bad for non-joinder of parties. Hence, my answer to above Issue is in the affirmative.
28. ISSUE NOs.5 AND 6 : Since plaintiff has failed to prove lawful possession over the suit schedule property and since plaintiffs failed to prove illegal construction put up by the defendant over the suit schedule property, certainly plaintiffs are not entitled for the relief of permanent injunction as well as mandatory injunction.
29. It is the case of the plaintiff, defendant No.1 Trust has violated the provisions of Indian Trust Act and as per the contents of the Trust Deed, it does not hold any immovable property, therefore defendant No.1 Trust has nothing to do with the affairs of Venkateshwara Swamy Temple constructed in the property belongs to the first plaintiff. It is also case of the plaintiff temple belongs to the devotees and first plaintiff. Admittedly, plaintiff has not sought relief of declaration to declare Venkateshwara Swamy Temple constructed on the suit schedule property belonged to the first plaintiff and devotees. At the time of argument, Advocate for the plaintiff relied on the decision of the Hon'ble High Court reported in 2014 (1) KCCR 187 (DB) in a case K.V. Sathyanarayan Das -versus- H.V. Cont'd..
- 39 - O.S. No.3400/2007 Ramprakash and others, wherein it is held at Head Note D. thus:-
"D. TRUST - Entrustment of Management of Temple and Choultry does not amount to entrustment of ownership of property - Even if possession is handed over, it is a permissive possession."
It is not the case of the plaintiff, defendants are claiming ownership over Venkateshwara Swamy temple constructed on the suit schedule property. Hence, with due respect to the decision referred above, it is not helpful to the case of the plaintiff.
30. On perusal of Ex.D.13 which is the registered Trust Deed dated 25-01-2000 nowhere in the above said deed it has mentioned defendant Trust does not hold any immovable property. On the contrary, object of forming the Trust to develop activities of Venkateshwara Swamy Temple which is situated in R.P.C. Lay-out, Vijaya Nagar, Bengaluru for the benefit of public at large. Admittedly, it is not the counter-claim of the defendant No.1 Trust that decree be passed declaring defendant No.1 Trust is having entire control or administration of Venkateshwara Swamy Temple situated on the suit schedule property. Therefore, contention of plaintiff in this regard has no substance at all.
Cont'd..
- 40 - O.S. No.3400/2007
31. Apart from this, in the oral evidence, D.W.1 has specifically deposed, first defendant Trust came into existence on 25-01-2000, devotees have formed first defendant Trust for proper management of the temple and to perform its religious functions. Further, he has deposed office bearers of the Trust have been carried day-to-day activities in the temple. Though D.W.1 cross-examined at length, but nothing has been brought on record to disbelieve his evidence. Hence, I am of the opinion that plaintiff is not entitled for the relief sought for. Accordingly, my answers to above Issues are in negative.
32. ISSUE No.9 : Before parting with this judgment, it is necessary to refer to the observation of the Hon'ble High Court in M.F.A. No.4656/2014 dated 11-02-2016 wherein the Hon'ble High Court permitted both the parties to worship in Sri Venkateshwara Swamy Temple constructed in the suit schedule property and to conduct religious ceremonies in the said temple in peaceful manner till disposal of the suit. This Court is of the opinion that no doubt plaintiff has failed to prove lawful possession over the suit schedule property as on the date of the suit in respect of entire 00-36 guntas of land i.e., suit schedule 'A' property, but it does not mean plaintiff is not entitled to worship Venkatgeshwara Swamy temple constructed in the suit schedule property and to conduct religious ceremonies in the said temple. It is not the case of the defendants, Cont'd..
- 41 - O.S. No.3400/2007 plaintiffs are not entitled to worship Venkateshwara Swamy temple constructed in the suit schedule property. In the cross-examination, D.W.1 has specifically admitted -
"ªÁ¢AiÀÄÄ zÉêÀ¸ÁÜ£ÀzÀ ¥ÀÇeÉ ¥ÀÅ£À¸ÁÌgÀPÉÌ £Á£ÀÄ CrØ ¥Àr¸À¨ÁgÀzÀÄ JAzÀÄ ¥ÀjºÁgÀ PÉýzÁÝgÉ CAzÀgÉ zÉêÀ¸ÁÜ£ÀPÉÌ ¸Á«gÁgÀÄ d£À §AzÀÄ ºÉÆÃUÀ§ºÀÄzÀÄ. ªÁ¢AiÀĪÀgÁUÀ°Ã CªÀgÀ ªÀÄ£ÉAiÀĪÀgÁUÀ°Ã ªÉAPÀlgÀªÀÄt zÉêÀ¸ÁÜ£ÀPÉÌ §AzÀÄ ¥ÀÇeÉ ¥ÀÅ£À¸ÁÌgÀ ªÀiÁrPÉÆAqÀÄ ºÉÆÃUÀ®Ä £À£ÀßzÀÄ K£ÀÆ vÀPÀgÁgÀÄ E®è."
This being the admission of D.W.1, even if suit is dismissed, plaintiff No.1 and his family members are entitled to worship and to conduct religious ceremonies in Sri Venkateshwara Swamy Temple in peaceful manner. If suit is dismissed with above said observation, it would meet ends of justice. Hence, I proceed to pass the following -
ORDER Suit filed by the plaintiffs against the defendants, is hereby dismissed.
No order as to costs.
It is made it clear plaintiff No.1 and his family members are entitled to worship and to conduct religious ceremonies in Sri Cont'd..
- 42 - O.S. No.3400/2007 Venkateshwara Swamy Temple constructed in the suit schedule 'A' property in peaceful manner.
Draw decree accordingly.
(Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 1st day of August, 2016.) (PATIL NAGALINGANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFFS:
Examined on:
P.W.1 : Erappa 04-04-2016
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Exs.P.1 : Letters of UCO Bank dated 05-12-2012 and P.2 and 03-12-2012.
Ex.P.3 : Encumbrance certificate for the period from July 2011 to December 2012. Ex.P.4 : Encumbrance for the period from 01-04-2007 to 18-02-2009.
Ex.P.5 : Letter issued by the Under Secretary, Urban Development Department to the Commissioner, B.B.M.P. on 05-01-2007. Ex.P.6 : Notification issued by the C.I.T.B. Ex.P.7 : Certified copy of judgment dated 26-06-2010 passed in O.S. No.8414/2005.
Cont'd..
- 43 - O.S. No.3400/2007 Ex.P.8 : Certified copy of decree dated
26-06-2010 drawn in O.S. No.8414/2005. Ex.P.9 : Certified copy of order sheet in O.S. No.3862/1989.
Ex.P.10 : Certified copy of plaint in
O.S. No.3862/1989.
Ex.P.11 : Certified copy of memo filed in
O.S. No.3862/1989.
Ex.P.12 : Certified copy of decree drawn in
O.S. No.3862/1989.
Ex.P.13 : Paper Notification;
Ex.P.13(a) : Relevant portion marked in Ex.P.13. Ex.P.14 : Acknowledgement issued by B.M.P. Ex.P.15 : Certified copy of Execution Petition No.363/2013.
Ex.P.16 : Certified copy of Warrant of attachment. Ex.P.17 : Certified copy of the report of the Bailiff. Ex.P.18 : Certified copy of spot mahazar written by the Bailiff.
Ex.P.19 : Certified copy of delivery warrant in Ex.No.363/2013.
Ex.P.20 : Hand-bill with regard to auction sale. Ex.P.21 : Certified copy of self-assessment tax paid receipt.
Exs.P.22 : Encumbrance certificates. to P.24 Ex.P.25 : Certified copy of re-conveyance deed. Ex.P.26 : Certified copy of endorsement issued by UCO Bank.
Ex.P.27 : Certified copy of decree drawn in O.S. No.3862/1989.
Ex.P.28 : Death certificate.
Ex.P.29 : Representation submitted to the Group
Panchayath, Kempapura.
Cont'd..
- 44 - O.S. No.3400/2007
Ex.P.30 : Endorsement issued by the Patel of
Kempapura Group Panchayath.
Ex.P.31 : Record or right.
Ex.P.32 : Index of lands.
Ex.P.33 : Tax paid receipts.
Ex.P.34 : Certified copy of sale deed dated
10-03-1954.
Ex.P.35 : Certified copy of Will dated 02-08-2010.
Ex.P.36 : Certified copy of re-conveyance deed dated
21-09-1975.
Ex.P.37 : Letter issued by BESCOM.
Ex.P.38 : Estimate report issued by BESCOM.
Ex.P.39 : Estimate report issued by BESCOM.
Ex.P.40 : Revised Estimate issued by BESCOM.
Ex.P.41 : Electricity bills and receipts.
Ex.P.42 : Photographs.
3. WITNESS EXAMINED FOR THE DEFENDANTS:
D.W.1 : V. Krishnappa 29-04-2016
4.DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
Exs.D.1 : Photographs. and D.2 Ex.D.3 : Approved plan Ex.D.4 : Map of Kempapura Agrahara village. Ex.D.5 : Endorsement dated 16-02-2009 issued by
the B.M.P. in favour of defendant No.3.
Exa.D.6 : Encumbrance certificates.
to D.8
Ex.D.9 : Photographs;
Ex.D.9(a) : C.D. containing Ex.D.9.
Exa.D.10 : Receipts dated 09-12-2007 issued by
and D.11 Temple authorities for having collected
amount towards Pooja.
Cont'd..
- 45 - O.S. No.3400/2007
Ex.D.12 : Hand bill/pamphlet.
Ex.D.13 : Minutes of Meeting of Temple trust.
Ex.D.14 : Endorsement dated 16-02-2009 issued by
the B.M.P. in favour of defendant No.3. Ex.D.15 : Copy of Work Order issued by B.M.P. Ex.D.16 : Copy of Contract Certificate. Exs.D.17 : Auditor's reports.
to D.30 Ex.D.31 : Certified copy of order dated 12-04-2012 passed in Misc. No.712/2010 on the file of Principal City Civil Judge, Bengaluru.
Ex.D.32 : Photographs;
Ex.D.32(a) : C.Ds. containing Ex.D.32.
Ex.D.33 : Photographs;
Ex.D.33(a) : Negatives containing Ex.D.33. Exs.D.34 : Photographs;
and D.35 Ex.D.36 : C.D. containing Exs.D.34 and D.35.
Ex.D.37 : Photograph;
Ex.D.37(a) : C.D. containing Ex.D.37. Ex.D.38 : Prajavani Kannada daily newspaper dated 27-11-2012.
Ex.D.38(a) : Relevant portion of news item published in Ex.D.38.
(PATIL NAGALINGANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..