Karnataka High Court
J.M.Mariswamy vs Jade Devaara Mutt on 18 June, 2013
Author: A.N.Venugopala Gowda
Bench: Subhash B. Adi, A.N.Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B. ADI
REGULAR FIRST APPEAL CROSS OBJECTION NO.6/2005
C/W
REGULAR FIRST APPEAL NO.772/2000
IN R.F.A.CR.OB.NO.6/2005
BETWEEN :
1 J.M.MARISWAMY
S/O LATE SIDDALINGAIAH
AGE 70 YEARS,
2 J.M.NANJUNDAIAH
S/O LATE SIDDALINGAIAH
AGE 52 YEARS,
BOTH ARE RESIDENTS OF UPPARAKERI
SHIMOGA CITY - 577 201
...CROSS OBJECTORS
(BY SRI. S.V. PRAKASH, ADV.,)
AND :
1 JADE DEVAARA MUTT
SHIMOGA BY ITS SECRETARY, S.RAMU
S/O SIDDAPPA, AGE: 69 YEARS
2
KURUBA CO-OPERATIVE SOCIETY
1ST CROSS, GANDHI BAZAAR
SHIMOGA CITY - 577 201
2 J.M. ESHWARAIAH
SINCE DEAD BY HIS LRS
2(a) PARVATHAMMA
W/O LATE J.M.ESHWARAIAH
AGED ABOUT 52 YEARS,
2(b) J E UMAMAHESHWARAIAH
S/O LATE J M ESHWARAIAH
AGED ABOUT 36 YEARS,
2(c) J M RAJASHEKARAIAH
S/O LTE J.M.ESHWARAIAH
AGED ABOUT 36 YERS,
RESPONDENTS 2(a) TO (c)
ARE RESIDING AT
UPPARAKERI,
SHIMOGA CITY - 577 201
3 J M CHANNESHAIAH
S/O CHANDRASHEKARAIAH
AGED ABOUT 63 YEARS,
4 J M KARISIDDAIAH
S/O CHANDRASHEKARAIAH
AGED ABOUT 53 YEARS,
RESPONDENTS 3 TO 4 ARE
3
RESIDENTS OF UPPARAKERI
SHIMOGA CITY - 577 201
5 S R SURYANARAYANA RAO
S/O RAMANNA
AGE: MAJOR, R/O UPPARAKERI
SHIMOGA - 577 201
6 SMT. R H DHANALAKSHMI @ LAKSHMI
W/O LATE HANUMANTHAPPA
AGE: MAJOR,
7 R H ANIL KUMAR
S/O LATE HANUMANTHAPPA
AGE:MAJOR
8 KUM. PRATHIMA
D/O LATE HANUMANTHAPPA
AGE:MAJOR
9 R H JYOTHI LAKSHMI
D/O LATE HANUMANTHAPPA
AGE: MAJOR
RESPONDENT NOs.6 TO 9 ARE
R/O JYOTHI LAYOUT, KUVEMPU ROAD
SHIMOGA - 577 201
10 RAJA
S/O PACHAPPA MODALIAR
AGE: MAJOR, ASHOKA ROAD
SHIMOGA - 577 201
11. E M SHIVASHANAKARAPPA
S/O MARISIDDAPPA,
AGE: MAJOR
4
ITTIGEHALLI, HARNAHALLI
HOBLI, SHIMOGA TALUK - 577 201
12 S SRINIVASA
S/O KRISHNA PILLAI
AGE: MAJOR
ONION MERCHANT
S.N.MARKET, SHIMOGA - 577 201
13 K SADASHIVAPPA
S/O KULLAPPA
AGE: MAJORADULT
K.R.PURAM
SHIMOGA - 577 201
14 JANAKAMMA @ JANAKI BAI
W/O BALAJI PRASAD
AGE: MAJOR
UELEREVANNAKERI
GANDHI BAZAR
SHIMOGA - 577 201
15 B SIDDOJI RAO
S/O BHARMOJI RAO
AGE: MAJOR
MUTTON MARKET
SAVARKAR NAGAR
SHIMOGA - 577 201
16 NARAPPA
S/O BASAPPA
AGE: MAJOR
17 RUDRAPPA
5
S/O MUNIYAPPA,
AGE: MAJOR
RESPONDENT NO. 16 & 17 ARE
R/O NAVALE, SHIMOGA - TALUK 577201
18 NANJUNDAPPA
AGE: MAJOR
S/O MUNIYAPPA
19 PURUDAPPA
S/O MUNIYAPPA
AGE: MAJOR
RESPONDENT NO. 18 & 19 ARE
R/O NAVALE,
SHIMOGA TALUK - 577 201
...RESPONDENTS
(BY SRI. VINAYAK BHAT, ADV., A/W
SRI. ASHOK HARANAHALLI, SR. COUNSEL FOR R-1;
NOTICE TO R-2 TO 19 DISPENSED WITH)
IN R.F.A.No.772/2000
BETWEEN :
JADE DEVAARA MUTT
SHIMOGA BY ITS SECRETARY, S.RAMU
S/O SIDDAPPA, AGE: 64 YEARS
KURUBA CO-OPERATIVE SOCIETY
1ST CROSS, GANDHI BAZAAR
6
SHIMOGA CITY - 577 201
...APPELLANT
(BY SRI.VINAYAK BHAT, ADV., A/W
SRI. ASHOK HARNAHALLI, SR.COUNSEL )
AND :
1 J.M. ESHWARAIAH
SINCE DEAD BY HIS LRS
1(a) PARVATHAMMA
W/O LATE J.M.ESHWARAIAH
AGED ABOUT 52 YEARS,
1(b) J E UMAMAHESHWARAIAH
S/O LATE J M ESHWARAIAH
AGED ABOUT 36 YEARS,
1(c) J M RAJASHEKARAIAH
S/O LTE J.M.ESHWARAIAH
AGED ABOUT 36 YERS,
RESPONDENTS 1(a) TO 1(c)
ARE RESIDING AT
UPPARAKERI,
SHIMOGA CITY - 577 201
2 J.M.MARISWAMY
S/O LATE SIDDALINGAIAH
SINCE DECEASED BY HIS LRs
2(a) SMT. SUJATHA
W/O LATE J.M.MARISWAMY
AGED ABOUT 60 YEARS
7
2(b) SMT. SARITHA
D/O LATE J.M.MARISWAMY
AGED ABOUT 35 YEARS
2(c) KALAVATHI
W/O NAGARAJ
AGED ABOUT 28 YEARS
2(d) SMT.GEETHA
W/O GANGADHARA
AGED ABOUT 25 YEARS
2(e) SRI.PRADEEP
S/O LATE J.M.MARISWAMY
AGED ABOUT 22 YEARS
RESPONDENT NO. 2(a) TO 2(e)
ARE RESIDENTS OF 2ND CROSS
GANDHI BAZAAR
UPPARAKERI
SHIMOGA.
3 J.M.NANJUNDAIAH
S/O LATE SIDDALINGAIAH
4 J M CHANNESHAIAH
5 J M KARISIDDAIAH
RESPONDENT NO. 3 TO 5 ARE
SONS OF CHANDRASHEKARAIAH
GRAND SONS OF AREBILCHI SIDDAIAH
& SMT.SHIVABASAMM
R/O UPPARAKERI, SHIMOGA
6 S R SURYANARAYANA RAO
8
S/O RAMANNA
AGE: MAJOR, R/O UPPARKERI
SHIMOGA - 577 201
7 SMT. R H DHANALAKSHMI @ LAKSHMI
W/O LATE HANUMANTHAPPA
AGE: MAJOR,
8 R H ANIL KUMAR
S/O LATE HANUMANTHAPPA
9 KUM. PRATHIMA
D/O LATE HANUMANTHAPPA
AGE:MAJOR
10 R H JYOTHI LAKSHMI
D/O LATE HANUMANTHAPPA
AGE: MAJOR
RESPONDENT NO.7 TO 10 ARE
R/O JYOTHI LAYOUT, KUVEMPU ROAD
SHIMOGA - 577 201
11 RAJA
S/O PACHAPPA MODALIAR
AGE: MAJOR, ASHOKA ROAD
SHIMOGA - 577 201
12 E M SHIVASHANAKARAPPA
S/O MARISIDDAPPA,
AGE: MAJOR
ITTIGEHALLI, HARNAHALLI
HOBLI, SHIMOGA TALUK - 577 201
13 S SRINIVASA
9
S/O KRISHNA PILLAI
AGE: MAJOR
ONION MERCHANT
S.N.MARKET, SHIMOGA - 577 201
14 K SADASHIVAPPA
S/O KULLAPPA
ADULT
K.R.PURAM
SHIMOGA - 577 201
15 JANAKAMMA @ JANAKI BAI
W/O BALAJI PRASAD
AUDULT
UELEREVANNAKERI
GANDHI BAZAR
SHIMOGA - 577 201
16 B SIDDOJI RAO
S/O BHARMOJI RAO
MUTTON MARKET
SAVARKAR NAGAR
SHIMOGA - 577 201
17 NARAPPA
S/O BASAPPA
AGE: MAJOR
18 RUDRAPPA
S/O MUNIYAPPA,
AGE: MAJOR
RESPONDENT NO. 17 & 18 ARE
R/O NAVALE, SHIMOGA - TALUK
19 NANJUNDAPPA
10
AGE: MAJOR
S/O MUNIYAPPA
20 PURUDAPPA
S/O MUNIYAPPA
AGE: MAJOR
RESPONDENT NO. 19 & 20 ARE
AGRICULTURISTS, R/O NAVALE,
SHIMOGA TALUK - 577 201
21 SRI.N.NAGARAJ (AMENDED VIDE COURT
S/O K. NANJAPPA ORDER DT.15.12.2004)
AGE: 44 YEARS, MAHARANONI BYLU EXTN.,
GANDHI BAZAR, SHIMOGA
22 SRI. DINESH ESHWAR SHET
S/O ESHWAR SHET
AGED ABOUT 50 YEARS
II CROSS, GANDHI BAZAR,
UPPERKERI
SHIMOGA
...RESPONDENTS
(BY SRI. B.RUDRA GOWDA, ADV. FOR R-1(a) TO (c);
R-2(a) TO (d) SERVED; NOTICE DISPENSED WITH i/r/o R-2(e);
SERVICE OF NOTICE HELD SUFFICIENT i/r/o R-3 & R-11;
SRI. M.V.HIREMATH, ADV. FOR R-4; SRI.K.G.NAYAK, ADV.
FOR R-5
SRI.ASHWIN S.HALADY, ADV., FOR R-6;
SRI. RAMACHANDRA R. NAIK, ADV., FOR R-7 TO R-10;
R-12 & R-17 SERVED;
SRI. S.V.PRAKASH, ADV. FOR R-13 & R-14; APPEAL ABATES
AGAINST R-15,
SRI. MAHESH R. UPPIN, ADV. FOR R-16;
SRI. M.Y.LOKESH, ADV., FOR R-18 & 19;
11
SRI. MOHD. SHAFI, ADV., FOR R-20(a);
NOTICE TO R-20(b) DISPENSED WITH;
SRI.L.SREENIVASA BABU, ADV., FOR PROPOSED R-21 TO 24)
THIS R.F.A.CR.OB IS FILED UNDER ORDER XLI R 22 OF
CPC AGAINST THE JUDGMENT AND DECREE DT. 15.4.2000
PASSED IN O.S.NO. 217/86 BY THE PRL. CIVIL JUDGE, SR.DN.
SHIMOGA, ANSWERING ISSUE NO.1, 4, 7, 13, 14 AND 16 IN
AFIRMATIVE AND HOLDING THAT THE SUIT IS
MAINTAINABLE AND NOT HIT BY PRINCIPLES OF
RESJUDICATA OR LAW OF ESTOPPEL ON ISSUE NO.3 AND
ANSWERING ISSUE NO.6 IN NEGATIVE AND ANSWERING
ISSUE NO.8 AND 10 IN PARTLY AFFIRMATIVE.
THIS R.F.A. IS FILED UNDER SECTION 96(1) OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 15.4.2000
PASSED IN O.S.NO.217/86 ON THE FILE OF THE COURT OF TH
PRINCIPAL CIVIL JUDGE (SR.DN.), SHIMOGA, DISMISSING
THE SUIT FOR DECLARATION OF TITLE, PERMANENT
INJUNCTION AND ALSO FOR POSSESSION OF PROPERTIES
AND MENSE PROFITS.
THIS CROSS OBJECTION AND APPEAL ARE COMING
ON FOR HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
12
JUDGMENT
RFA No.772/2000 is by the plaintiff, RFA.Crob.No.6/2005 is by defendant Nos.2 and 3 against the judgment and decree in O.S.No.217/1986 dated 15.4.2000 on the file of the Prl. Civil Judge (Sr. Dn.), Shimoga.
2. The plaintiff has questioned the judgment and decree whereas the cross-objectors have questioned the findings of issue Nos.1, 3, 4, 6 & 7 and partly of issue Nos.8, 10, 13, 14 accused 16.
3. The brief facts leading to this case are that suit was filed by Jadedevara Mutt, Shimoga represented by Channaveereshwara Swamy. Subsequently on the death of Channaveereshwara Swamy, one S.Ramu, the Secretary represented the Mutt.
4. The suit is one for declaration, declaring that the suit schedule A, B, C and D properties are the properties of the plaintiff Mutt and consequently for permanent injunction restraining the 13 defendants from interfering with the possession of the entire area in B schedule properties except Block Nos.I, VII, VIII and entire C schedule properties and for possession of Block Nos.I, II and III of A schedule properties, Block Nos.I, VII and VIII of B schedule properties and entire D schedule properties.
5. The plaintiff's case was that the plaintiff is a religious Institution of Kuruba Community represented by the head of the Mutt Channaveereshwara Swamy. The Institution of the Kuruba Community is also called as Halumatta. This is an Institution founded for Kuruba Community in the Districts of Shimoga, Chickamagalur and Dharwad. The Institution is meant for propagating religious and spiritual needs of Kuruba Community. The Mutt has properties in Upparakeri and Lashkar Mohalla in Shimoga city and also at Navle in Holehonnur. The Swamy of the Mutt used to be usually in Upparakeri Mutt. There is a Gaddige also. The Mutt properties are popularly known as Kalyanappa Mutt in Lashkar Mohalla. Origin of the Mutt is not known and is not easily traceable by the reason of its antiquity. 14 The properties of the Mutt were all endowed by the members of the Kuruba community without any right of alienation. The head of the Mutt always hold the properties in trust for the benefit of the community. Since the Kuruba community was not well-versed and educated in religious and spiritual manner, they depended in the past on pious Lingayath to guide them as both were Shyvaths. It is in this context that the Lingayath was elected and placed incharge as the head of the Mutt and a member of his family continued and the community accepted and were representing him as a Swamy of Jadedevara Mutt. Siddaiah Swamy was the Guru of the Mutt. In and around 1916 he was residing in the Mutt building in Upparakeri, Shimoga. On his death, some members of the Kuruba community wanted one Siddaramaiah as their Guru and put him incharge of the schedule properties as Trustee of the community. But, one Channabasappa Swamy filed a suit against Siddaramaiah in O.S.No.31/1925-26 for a decree that he is the lawful head of the Mutt and for the properties. It was stated in the said suit that the properties were that of Jadedevara Mutt. He had also mentioned that including himself, no one was 15 entitled to alienate the properties. The said suit was decreed and possession was obtained.
6. Arebilchi Siddappa is the father of Siddalingaiah and Siddalingaiah's sons were Eshwaraiah, Mariswamy and Nanjundaiah. Sri.Channeshaiah and Karisiddiah were the two sons of Chandrashekaraiah. These persons started interfering with some of the properties of the Mutt. Hence, O.S.No.207/1936-37 was filed before the Munsiff Court, Shimoga. The said persons as the defendants filed written statement admitting the nature of properties to claim that Arebilchi Siddappa was entitled for possession as a Trustee as he had been duly elected by the Kuruba community as a Swamy. The suit was decreed for the first instance. Later, by entering into secret understanding and compromise it tried to defeat the rights of Kuruba community. Another suit came to be filed in O.S.No.6/1965 on the file of the District Judge, Shimoga. During the pendency of the said suit, 1st defendant in the said suit, Swamy of the Mutt Channabasappa died. However, as no one was brought on record in 16 the place of Channabasappa Swamy, suit came to be dismissed. The Kuruba community did not select anyone who is fit to the office of the Swamy. Since the suit in O.S.No.6/1965 was dismissed, there was no Swamy who was selected to head the Mutt. Since the office of the Swamy was vacant, the community people made a conference to consider the future of the Mutt and in a meeting held on 15.12.1985 it was decided to select the successor and the choice fell on one Hanumanthappa of Holalur. He was requested to accept the office to lead the Mutt. He was installed as a Swamiji of the Mutt on 3.11.1986. Since then Mutt was headed by Hanumanthappa. The community people also accepted him as the Head of the Mutt and installed him as Channabeereshwara Swamy. Defendants 1 to 5 were related to the previous Swamy of Jade Devara Mutt and they are Lingayats. They are in possession of some of the properties of the plaintiff - Mutt. Defendant Nos.6, 7, 12, 13 and 14 to 17 are in possession of some of the properties of the Mutt. Defendants 8 to 11 are claiming some properties. It is not clear as to how these defendants got possession of the Trust properties. They cannot get 17 any title and any such alienation beyond the life time of Swamy will be void. On these allegations and others, the plaintiff sought for declaration and injunction and also for possession.
7. The suit was contested by defendants 1, 2 and 3 by filing a written statement denying that, the suit properties are the Mutt properties and denying the claim of the plaintiff. The specific case of defendant Nos.1 to 3 was that, though Jade Devara Mutt was headed by the ancestors of defendants 1 to 3, they are not the heirs of Swamy. The suit properties are the self-acquired properties of the branch of Kalyanappa Swamy and Jade Devara Mutt Swamy. They are not the properties endowed by the Kuruba or Halumatha community. After the death of Kalyanappa Swamy, his son - Kanthyappa Swamy succeeded to the properties of Kalyanappa Swamy Mutt. After the death of Kanthyappa Swamy, his son - Siddaiah Swamy succeeded to the said properties. Siddaiah Swamy had no male issues and he took Channabasavappa Swamy as his adopted son. Rachappaiah was the power of attorney holder of 18 Channabasavappa Swamy and he managed the properties. After the death of Siddaiah Swamy, Channabasavappa Swamy succeeded to the said properties and claimed that, since the defendants have become the successors of the previous Swamy, the properties described as belonging to Kalyanappa Mutt and Jade Devara Mutt are not the properties of any religious Institution. Defendants 1 to 3 are the absolute owners and they have become owners by succession. Kuruba community has no class or caste by themselves. They are also not Swamijis. There are also no Swamijis among the Kurubas in any of the establishment. There are Swamijis from the other sects of the Hindus and claim that, the suit schedule properties are the self acquired properties of two brothers i.e., Kalyanappa Swamy and Jade Devaru Swamy, the ancestors of defendants 1 to 3.
8. Defendants 4 and 5 filed separate written statement and claimed that, the Kalyanappa Mutt was founded by one Kalyanappaiah, son of Maridevaru Swamy, who was a Veerashiva Jangam and Jade Devara Mutt was founded by one Jadeyappa Swamy, 19 son of Maridevara Swamy in the 19th Century. These defendants also denied the rights of the plaintiff and claim that, the properties are not the religious endowment properties belonging to Kuruba community.
9. Defendant No.6 also filed a separate written statement. Defendants 7, 8, 10, 11, 14 and 15 to 17 filed their separate written statements. Defendant No.9 adopted the written statement filed by defendant No.10 and the suit was contested by the defendants.
10. The trial Court framed the following issues:
"1.Whether the plaintiff-Mutt is a religious and charitable institution of Kuruba community?
2.Whether Channabeereshwara swamy was the head of the plaintiff-Mutt?
3.Whether the suit as instituted is maintainable?
4.Whether the suit schedule properties are the properties of the plaintiff-Mutt?
5.Whether the plaintiff proves that the said head of the plaintiff-Mutt had taken possession of all the properties now in possession of Kuruba Community?
6.Whether the suit schedule properties are the self-20
acquired properties of Kalyanappa Swamy and Jadedevaraswamy as contended by the defendants No.1 to 3?
7.Whether the suit schedule properties are the Trust properties?
8.Whether the defendants No.1 to 5 are the descendents of Jadedevara Mutt and Kalyanappa Mutt?
9.Whether defendants No.1 to 5 as successors, have become the owners of the suit schedule properties?
10.Whether defendants No.1 to 5 are in actual possession of the suit schedule properties?
11.Whether the suit is hit by the principles of Res- judicata?
12.Whether the suit is time barred?
13.Whether defendants No.6 to 17 purchased the properties as contended in their respective written statements?
14.Whether the plaintiff proves its possession over the entire suit 'B' schedule property, except plot Nos.1,7 and 8 and also over the entire suit 'c' schedule property?
15.Whether the plaintiff is entitled for possession of Block Nos.1,2 and 3 of suit 'A' schedule, plot Nos. 1,7 and 8 of suit 'B' schedule and suit 'D' schedule properties?21
16.Whether plaintiff proves the alleged interference by the defendants?
17.Whether the plaintiff is entitled for permanent injunction as claimed?
18.Whether the plaintiff is entitled for mesne profits?
19.What decree of Order?"
The trial Court gave a finding based on the evidence led by both the parties holding that, the plaintiff - Mutt is a religious and charitable Institution of Kuruba community. The suit properties are the properties of the plaintiff - Mutt. They are the trust properties. Defendants 1 to 5 are the descendents of Jade Devara Mutt and Kalyanappa Mutt. They are in actual possession of the properties. Defendants 6 to 17 have purchased the properties as claimed in the written statement. The plaintiff has proved its possession over the entire suit `B` schedule property excluding block Nos.17 and 18 and the entire suit `C` schedule property. The plaintiff has also proved interference by the defendants. However, the suit came to be dismissed mainly on the ground that, the plaintiff has failed to prove that, Channabeereshwara Swamy was appointed as the head of the 22 Mutt and he had also filed a suit. The plaintiff failed to prove that, PW.1 was the power of attorney authorized by the Mutt to conduct the case as the said power of attorney itself was not produced. Since the office of the Swamy/ Guru of the plaintiff - Mutt has become vacant, the suit itself is not maintainable and the plaintiff represented by one Ramu as the Secretary cannot continue the suit. However, it gave findings in favour of the defendants as regard to the possession.
11. Since the suit is dismissed on the ground that, Guru was not installed for the plaintiff - Mutt and since some of the findings were given against the defendants, the plaintiff has filed appeal and the defendants have filed cross-objection against the findings.
12. I have heard Sri Ashok Harnahalli, learned senior counsel for the plaintiff and Sriyuths S.V. Prakash, K.G. Naik and M.V. Hiremath for the contesting defendants.
13. After arguing at length, it was pointed out that, in O.S. 23 No.33/1944-45, which was filed by Channabasappa Swamy of Jade Devara Mutt for cancellation of the release deed dated 03.11.1943, which was alleged to have been fraudulently got executed by the plaintiff therein and also for cancellation of compromise petition, the said suit was decreed inter alia giving a finding that:
"I decree the suit declaring the plaintiff to be hakudar Matadhikari of the Jade Devara Mutt entitled to its office and the properties attached to the Mutt. The decree shall also direct cancellation of the release deed Ext. CCC as well as the rajinam Ext. XI."
As a consequence of the said decree, direction was issued for delivery of possession of item No.1 of the plaint schedule properties from defendants 1 to 4 to the plaintiff and defendants 1 to 4 therein were directed to pay Rs.106.60Ps. to the plaintiff with interest from the date of suit. It is further held that, the plaintiff has virtually succeeded on all points in the suit. Defendants 1 to 4 were directed to pay the cost of the suit. This judgement and decree affirms that Channabasappa Swamy was the Hakkudar and Matadipathy of the 24 Mutt and he was entitled to properties of the Mutt and possession of the same was also delivered to him.
14. An attempt was made by filing a scheme suit under Section 92 of CPC., in O.S. No.6/1965, wherein the plaintiffs therein claiming to be members of the Kurubar Community, Shimoga and beneficially interested in the plaint schedule properties, which according to them, were the properties of a public Trust or a Trust called Jade Devara Mutt and Kalyanappa Swamy Mutt sought for the formulation of a Scheme in regard to the Mutt and their properties, for the appointment of Trustees to manage the said Mutt, for divesting the Trustees in office since they have committed breach of trust by alienating the Trust properties, for setting aside the alienations made by the so-called Trustees and for other appropriate reliefs. The scheme suit came to be dismissed by observing as under:
"As pointed out by their Lordships, a declaration that the property belongs to a Trust or not cannot be given, if the suit in main fails for other reasons such as the basic one want of cause of action, the absence of which is also felt 25 in this suit, because there is little use settling the controversy raised in this suit without there being a mode of settling a scheme for giving directions for the administration of the Trust since there is no Swamy or `Guru` for the Kurubars who can administer the Trust. In fact, the Supreme Court says that in similar circumstances, the Court need not record even a finding touching the public character of the Trust which is liable to be treated as obiter dictum. I must, therefore, leave open this question for being decided in such proceedings as the Kurubars may adopt in conjunction with a `Guru` they may select for themselves and appoint him as their spiritual head. I must, therefore, leave open this question for being decided in such proceedings as the Kurubars may adopt in conjunction with a `guru` they may select for themselves and appoint him as their spiritual head."
and accordingly, scheme suit came to be dismissed.
15. The trial Court has observed in O.S. No.6/1965 that the suit must fail for want of Guru for the Kurubas and since the Guru was not installed and post was vacant, the scheme suit came to be dismissed. Thereafter, the present suit has been filed by 26 Channabeereshwara Swamy. The trial Court has held that, installation of *Channabasappa Swamy itself was not legal and was not accepted and the successor, who substituted himself, has no right to prosecute the suit and accordingly, it has dismissed the present suit also.
16. However, the fact remains that, in O.S. No.33/1944-45, wherein suit has been decreed declaring that, *Channabasappa Swamy was the Hakkudar and Matadhipathi and that he is entitled for the properties. Thus, way back in 1944-45, it has been decided as to the rights of Matadipati. Though the present suit was filed by Channabeereshwara Swamy, but it is not mentioned as to how Channabeereshwara Swamy was elected. It is only stated that, in a public meeting, he was elected by Kurubas. Any Swamy to succeed to the Mutt must be selected or elected in accordance with the customs prevailing in the said Mutt and not by any other mode. However, in O.S. No.6/1965, it is observed that, the Kurubas have also not selected the Swamy. Even if there is any selection, the selection must refer to *corrected vide C.O. dt. 18.6.13.
27the custom practice prevailing in the said Mutt. In the present suit, the Mutt, which was represented by one Ramu has not disclosed his capacity and right to represent the Mutt. Matadhipathi, is the only person, who can represent the Mutt and the trial Court has rightly dismissed the suit.
17. However, as far as the properties of the Mutt are concerned, way back in 1944 itself, in O.S. No.33/1944-45, by judgement dated 21st February 1947, it has been held that, the plaintiff therein, the matadhikari of Jade Devara Mutt was entitled to its office and the properties belonging to the Mutt. The said properties of the Mutt are required to be protected and maintained. Since the defendants are also in possession of some of the properties and some of the properties are in possession of the Mutt and since the post of Swamy is vacant, before any Swamy is installed, if the properties are not protected properly, there is likelihood of alienation, transfer and also wastage and the same would be prejudicial to the interest Mutt and defeat the very purpose for which, the properties are 28 endowed to the Mutt.
18. After arguments, it was suggested that an independent person be appointed as a Receiver till the next successor Swamy or Guru of the Mutt is installed. Some names were suggested and ultimately, both the Counsels agreed on one Sri Mahadev Lal, Advocate, residing at Siddaiah Road, Shimoga-2, to be appointed as a Receiver to maintain the schedule properties of the Mutt and keep the account of the same.
19. Sri Ashok Harnahalli, the learned senior counsel submitted that, the plaintiff has filed an application under Order 41 Rule 27 CPC., for additional evidence in view of the fact that, the Kuruba community has now selected a Swamy. However, the said application was seriously disputed by the defendants inter alia stating that, installation of Swamy is not recognized nor acceptable to the defendants as it is neither in accordance with the customs nor in accordance with the earlier judgments delivered by the Court. The 29 Plaint as filed also does not disclose proper cause of action and it also does not contain necessary pleadings as regard to the installation of Swamy. Hence, no purpose would be served by accepting the application filed under Order 41 Rule 27 C.P.C., for additional evidence. The said additional evidence could be used as material for filing a proper suit for necessary declaration by the parties. Keeping the liberty and contentions open as regard to the installation of Swamy, the appointment of a Receiver, will serve the purpose of protecting and maintaining the properties of the Mutt. Hence, I pass the following :
ORDER Sri Mahadev Lal, Advocate, resident of Siddaiah Road, Shimoga -2, is appointed as Receiver of Jade Devara Mutt, Shimoga.
The judgment and decree of the trial Court in O.S. No.217/1986 dated 15.04.2000 stands modified. That Kuruba community or persons concerned with the Mutt are at liberty to seek such relief as permissible in law for declaration and consequently, the relief as regard to the installation or succession to the office of Swamy of Jade 30 Devara Mutt, Shimoga. The Receiver shall take over all the properties of the Mutt and manage the same. In so far as the properties in possession of the defendants as on today are concerned, the same will continue to remain in possession of the defendants but, the same shall not be alienated by the defendants. The properties, which were in possession of the Mutt will be under the control of the receiver. He shall keep the accounts of the respective properties. His possession as Receiver would continue till any order is passed by the competent Civil Court in a suit to be filed by the parties for declaration as regard to the appointment of Swamy or Guru.
The findings recorded by the trial Court are hereby set aside. The parties are at liberty to file a suit for necessary declaration and in case, if the suit is decreed, declaring any person as a Guru or Swamy of Jade Devara Mutt, the suit schedule properties would vest with the said Guru or Swamy in terms of the judgment and decree in O.S. No.33/1944-45 dated 21st February 1947 and he would be in possession and control of the said properties and would be at liberty to 31 take such steps as permissible in law for protecting such properties.
Since the findings of the trial Court in O.S. No.217/1986 have been set aside, the findings recorded by this Court in the judgement and decree in O.S. No.33/1944-45 dated 21st February 1947 stand. However, the parties are at liberty to raise all the contentions in a suit that may be filed and the Court deciding the issue as to Guru or Swamy of Jade Devara Mutt shall decide the same on the basis of the previous judgements and custom and also on the basis of necessary pleadings by the parties.
Till such a suit is filed, the receiver shall render his account to the Tahasildar, Shimoga. It appears there is no significant income from the properties of the Mutt as such, however, services of the receiver should be respected and as a token of respect, honorary payment of Rs.1,000/- (Rupees One Thousand only) per month is fixed. The Receiver may adjust the said honorary payment out of rental income, if any, from the properties. The provisions of the 32 Limitation Act will not come in the way of the parties for filing a suit for declaration for installation of Swamy as it is a recurring cause of action.
Accordingly, the Cross-objection and appeal stand disposed of.
Sd/-
JUDGE RV/sma