Malleshappa vs M Malleshappa on 4 October, 2010

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Karnataka High Court

Malleshappa vs M Malleshappa on 4 October, 2010

Bench: Jawad Rahim

1

E

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 4"' DAY OF OCTOBER, 2010," 

BEFORE

THE HON'BLE MRJUSTICE JAWAD  '  A

MISC. CVL17218/10 IN R.s;.A. mfg ;;53a}*2o§::;..».:D:_G"._.if

BETWEEN:

MALLESHAPPA  _ '-
S/O LATE POOJAR,SANNAM--.A.LLAPP_A
AGED 62 YEARS " .. r   . 
R/OOJUGUNTE VILLATE-E,"  
KASABA HOBLI, SIRA"TALU__K;

AND NOW 4Rj/AT J¥OTHmAGAR;V_ 
SIRA TAL;UI<;;TUMKuR_% DEST'R_ICT' 

RANGANAi"LH'APP'A.' 4.  A

S/OLATE,POOJARERTEAAEN'A:v:AL:iAPPA
AGED 59<Y_EAR?S   A
EshI%;«wARARRA'     

S/O LATE ,POC_)JAR"SA;NNAMALLAPPA
AGED 51yEARs  

 RIKANATAPPVA.. ..... .. .

 _ S/_O'LATE--.POOJAR SANNAMALLAPPA

" . 'Ar,;'E.D 48.Y'EARs

 -.,AP'lé">E"l'_j'»L.A'n'~,|"'l"'S 2 TO 4 ARE

'A  R/O OJUGUNTE VILLAGE

.' ..'{ nV ,

 KASABA HOBLI
SIR__A TALUK--561203

"RANGASHAMAIAH

'' "S/O HOTTE RANGAPPA

AGED 63 YEARS
R/AT SANTEPETE, SIRA TOWN

(&\@/



2
TUMKUR DISTRICT" 561 203

6 S VISHWANATHA
S/O S SHIVANNA
AGED 43 YEARS
R/AT NO.10, IST FLOOR
D RANGAIAH COMPLEX
B.V.K.IYENGAR ROAD   
BANGALORE~56O 053 '

(BY SRI S.P.SHANKAR, SENIOR.COUVNSEL.FOR_,f1;_ = ~
SRI B v KRISHNA', ADV.) A  

AND :

1 M MALLESHAPPA  _ .0  ;
S/O LATE R MALLEGOWDA' :
AGED 43 YEARS   " 1 I 
R/AT SAIxI~T*ERETE, ~SIRA~TOw'N  A 
TUMKLJR'DISZLTVRCICTE56-1,203 1;; 0

2 PAvPE_(3O'W'DA<.;:.V_V  _  
S/;O PATEL_DO3'DDAM.V."'LLEGOWDA
AG_ED_50VY'EARS~ _  _ ~ A
R/0,OIuGuN'TE_~IvIL.LA<;E~
KASAI3AHOEu_I -- V  
SIRA TALUK.~,5€312_03"'"

   -  RESPONDENTS

 .(jI3\?%':SRVi  $ BALAGANGADHAR, ADV.)

 "._EMiSC'.ECv'L'.;I7C2I8/203.0 FILED UNDER ORDER XLI RULE
5 'READ \A'1"';efH SECTION I51 OF CIVIL PROCEDURE CODE,
3.908._PRAY1£\i..{3 TO STAY THE OPERATION OF JUDGMENT

 --VAND'..t:«.EC'REE DATED 29.05.2010 PASSED IN
 'R.xA.N0.5.Q/2009.

OEQV

  



3

This application coming on for admission this day, the
Court delivered the following: ..

ORDER

This regular second appeal is directed judgment and decree dated 29.5.20_1£) it on the file of Civil Budge (Sr.Divn:."}, iudgment and decree dated 31'i8:;'2.Q09 in Q.S21§3}':£)'4--~~o.n5the 'V L' file of Civil Judge (3f_r.Divn:,)...:VV:'8t._ szyfzsci' *s'.s_rga._7 Misc. Cvl.17218/10 is filed bl/'ttie..a'ppei'I';iﬁts]jsee--k_iVng stay of the impugned judgment_s whi'c'h.--is the contesting respondents

2. the appellants, Sri S.P.SharVtE<a'Vr andVﬁrivﬁtsi§ala.~ga.ngadhar for the contesting respondentsf' g'e.nesiséo'f"""this appeal is the dispute relating to performance of pooja of SR1 MAttst§sH\i.tAi§A'swAMv DEVARU AND RANGANATHASWAMY l3"»-'~___VDEVARE3V.V_s3ituate at Ojugunte Village, Kasaba Hobli, Sara A ""i"alttl_<.:}' ﬂit 4

4. One of the appellants, Sri S.Vishwanatha has deposed to certain facts in the affidavit in supportf:ofi.the application seeking interim stay of the impugned«..j.'u_dsj_§'n'ent'.é In the said sworn statement, it is averredH__th'a.t 'his figrea-t__VV grandfather, M.C.Mallaiah was thefolwnfer..vof_[th'e- property on which the temples are..Ac'o_nstru_ctied"

more fully described in the sch'e.du.|e to th_e"'pl:.ainVt,;: has also narrated in detailhow befen, from time immemorial, devotees for if .l.';\:.4:V/v3\.l.L,i_*'éSHWARASWAMY DEVARU ANQ.4*ilg}:NG¥lVlllillfriA$lrif'}Xi~*l.Y_'___LfEEVARU, deities installed in' V7:_th*e temples. Several circumstances"'a,re__n:arratéd___in the affidavit to seek interim relief.

_~flfhe"applicatio,n____h.as met with serious resistance from "2uthe"cowntestingérespondents 1 and 2 who are represented by Sri'AV"L'1I;'Si'B'all"againdadhar. As caveator, the counsel for grespond.e"nts.'i and 2 would contend that the appellants had f"c.:u.nAAsuc.cessfuily questioned the judgment and decree of the ..if.'.«trialcoAurt in R.A.18/09; the reasoning assigned by the first all 5 appellate court to reject the main appeal and to confirm the judgment of the trial court bears testimony to tl:ve_:fa,ct».Vthat this appeal lacks merits; he has recorded by the trial court on facts yrelating'"to7jt.hVe's c'_iairn_ of» _ respondents 1 and 2 in the ma,nag'ernen't»._'ofjltheliterﬁples referred to above. Besides,.'he.Vcontend:

filed by the appellants they .ai~.:;n:terirn order of stay of the trial in favour of respondents 1 and li;a,s,,l§:eciinea by the first appellate herein were in writ action in to the order dated petition, he submits this court ha;~:.__d'ecline_.cl' interim stay and rejection of the writ; petiti.on"i's e'nough- ground to reject the present . V. °-applicationV'bs~-eekingmglrant of interim stay. 6<.,.'=FPer contira, learned senior counsel for the appellants g wou44l'd,s"u.bmxit that he does not dispute what transpired in luv'lltgtheiaseyeral legal proceedings between the parties. He ~ submits he may not seek an interim stay of the judgment of "the trial court, first appellate court, but draws my attention, K/ti, 6 very pertinently, to the fact that at no time respondents herein were held by either of the courts to have to perform poojas in the temples referred to_ submits at the earliest point of time the'fis.:':}:ommeAnced"».ph- between the parties somewhere was filed by the father of resp.ondeVrit_s"and claiming that they had a right administer the temples; they had sou'ph't«-- to_'»tji$~.e_>them the right or to declare that they had,:'_a.y poojas. He submits respQ'n'déen:.t's up any right in they have succeeded to the _teVm'ple as hereditary right in pursuance to in O.S.23/77. Whether the responvdents'c.oAu'id.'claimwlhereditary right by virtue of the . .'"'juwd"g-me*nt :in.o.s.23/7'7 is an issue arising for consideration pfe.sent-.a.ippeal. In other words, he submits that the proceed!r'igsyj'.V'iAn O.S.23/77 were initiated by the father of E""'.__V"'»respondehts and another to claim they had a right (personal to manage the temple properties. Therefore, the .,,j.udgment in 0523/77 confines to the right, if any, which 7 the father of the respondents and another had, to administer the tempie. Such right was a persori»a:l"»,right ciaimed by them and it is difficuit to accept;i"*t--hat'._it"i'is'»a hereditary right conferred on the responden.ts,V_"_:'=._ V I

7. Be that as it may, he siabrriits ithafir. th,e{4.r"ei.ief».

to the father of the responds-_.nts anot»iiV'e'ri.f:plain"tiffi O.S.23/77 was not regardingyfvféthe right'toipejrfoirm poojas, but only to administe'r;._,_.t"h--e njxanV.agj'e..,th;e'*«temples, He draws my attention to theA,.._j.t:idgmfer{§ .~;3.,id~.i',_';;..é'cree passed in O.S.23/ 77 .r:eache'd reads thus:

it ,'u'It__"i's_ d'e'cla_re'd_' that theft' plaintiff Yajaman the Yajaman of the suit "A_"" Sche_di.:l'e :_t'e.m'pl'es and he has right to _ _V man~ag'e .th;e As_ui't'~""A" Schedule temples along Dh"a-rmadiiarshi, Gowda and Heads of the _ii:.Awo_"~._amavasyas at Bandreshalli and by taking the assistance of committee members."

Referri-mi; to the nature of decree passed as extracted A ,:."'.,.abo:y"e, he submits that since the said judgment and decree reached finality, (gig/terms of that decree also, 8 respondents cannot claim exclusive right to perform poojas or to interfere with the right of the appellants in performing poojas.

8. Sri G.S.Baiagangadhar, in all__fairiie'ss;.1:f:co'u~id".Vnot° dispute the fact that the deci-eevin si.3.es§23/77iwhhih-._hes reached finaiity is the only bas'is__on 'which, the:"resp--.o.ndentsi.:l' filed the suit which resdlted ._:Th\_erei'3ore, it is seen, respondents didA~--..._ri;3tA the declaratory decree in o.s.23/.77 speivieetit in the suit, viz., Yajaman as Yajamana of suit the right to manage the temples Gowda and Heads of two Amavasyasveat' B_ar.d're..shaili and Chikkanahaili, that too, ..._by t_a'i;:inglA'thVe asAs'ista.n.ce of committee members. There is "x¢_no:V'r'e.fer'eVn'c.g'inithe said decree with regard to the right to p'ei'fo"rm 'Vpde7j1ae1="and it is quite evident that the right to LVperforrn..;7poojas was not conferred on Yajaman Sri "..jR.iVlall.ego'iNda or any other person.

gait, 9

9. I am satisfied after considering the material on record made avaiiabie by both sides and the contentions canvassed, that though on the face of it, it may:'_:a'p'pea.rthat _ the respondents' father had succeeded _i--n«-»o:bjtai'ni:ng judgment and decree in o.s.23/377 ,tAheiru'fayiou'r,'"wb:e!,téw~t,he right conferred on them was.»i'a..__restrict_i'\}e manage the temple propertieVs"~«.a:rid__that afiong with Dharmadarshi, Gowdadaind Almavasyas at Bandreshalli and._Chikka.na'h:alli,._lVAi:,il,i assistance of committee _::It the respondents herein filed 'similar declaratory decree in their asserting that they derived the right orilintérest matter of the suit properties pursrgantt to4.Vti1.eV'd'e'cree O.S.23/77. Therefore, the right é'"whvi"(;h aseek only similar to or in terms of the I*'jodgme-nt--«.andi'-decree in O.S.23/77 and hence, it cannot be enl'a.rge,d' 'thyanlwhat is determined in 0.8.23/77. In fact, on pyertisvait' of the plaint in O.S.216/04, it is apparent that the claim put forward by the respondents was that by ....earlier declaration in the decree in 0823/77, Yajaman Sri 10 R.Ma|legowda of Safitepet, Sira, (father of 19' plaintiff) and Patel Dharmadarshi Gowda of Ojugunte village (fath.eit_'of.h2"d plaintiff) were held to be Yajaman;"""*«Qty:

MALLESHWARASWAMY DEVARU AND RAN1r;i.t:..il"iffiTi~l:AsWAM.asb'*;._ DEVARU temples situate at Ojuguznte:.yil|a§j'et,"Ii{'a-sabadtloybylﬁi', Sira Talukp and they were.»managi'ng'""the 1 further alleged in the plaint riolh-t by them was questioned by fact, it is noticed from the material in the plaint, respondents suit properties of SR1 DEVARU AND situate at Ojugunte villageyiiasaba :_'s.i:ra'l"fa|uk, along wit movables such as jewellery, etcwiiere previously managed by one Yajaman SrVi'i"Ft.l§i'allei'go.wda Vofwfsantepet, Sira, (father of 15' plaintiff) i§ha--tmadharshi Gowda (father of 2" plaintiff) vyh-i._ch ,__wasjl=beirig questioned by the 'priests' of the said temples.; They had further averred that the 'priests' had it -..Vdispiited the 'Yajamanike and management of temples' by ».-.the above said persons was being backed by other 0&9?» 1} supporters. Thus, they had sought for an injunctive order to restrain the 'priests' and others from interferingfwith their 'Yajamanike and management of temples? « ., i

10. From the above avermentﬁr, it _is"*v'.q:otiﬁéd"_th.eirHll' maingrievance is that after their fe_the1r's,..:thtey_' (resp'oVfiid.e'i*;:t_s) were managing the templeswhieh was'beingfi'n'terfered by the 'priests'. Nowhere in thereis anfiaverment that the respondents'fathers o:jj'resp'on'deggnts had a right to perform poojas,._nor th.e~,r.._had*-soughht "reiief to declare such right in

11. a_:Ther_ef'o5r.e,_gVth.e ax/:e~r'nfie_nts spell out that the dispute is about then1anagge'rn'ent"ofthie temples rather than the right to p_er:°ogArm upo.ojas.° in this view of the matter, and on the ifbasiisoEf'ijfatftisg_whichmare not in dispute, it is desirabie, in the i.'nt_e'r'e_~;.ifof" and tranquility between the community mie-mbegrs, grant an order in the following nature:

H The respondents shall not interfere in any manner with the performance of poojas, other rituals as is being done in at 1') A--

the temple by the appellants and other traditions and at the same time,Wthet.. appellants shall also not orev;ernt«'.r'VV*th_:e'.l' respondent from exercisi.n£3l4.:"'l.VVriolutsl conferred on themljn the jadmini'stratio_nA.,.Tf of the temple' l~;nown*._as adminilstratorsx' (yajamana) suit Dropertiesit. M V' ThisAAQr(:;l'e.r --'interl._'rnl-lmeasure at H s_':t'h'ij;~:l:3j'on.;§ture both sides to 1 'seek f'urth'erf_-relief ifnecessary.

E'_.!o.V'1V7218/10 is disposed l _ of,ac{:'o.rdi'n_Q"i'y';"

Sd/-

JUDGE

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