Bangalore District Court
Chikkannamma Devi Temple Trust vs Sri. Lakshman Singh on 24 May, 2023
KABC010196022010
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-36)
DATED ON THIS THE 24th DAY OF MAY 2023
Present: Sri.M.B.Kulkarni., B.Sc.,L.L.B.(Spl)
XXXV Addl.CC & SS Judge, Bengaluru.
O.S.No.8664/2010
Plaintiff : 1. Chikkannamma Devi Temple Trust,
No.13/1, Chikkannamma Gudi Beedi,
Bengaluru - 560002.
2. Sri. K. Rangaswamy,
S/o. Sri. Krishnappa,
Aged about 69 years,
Ganigara "A" Street, Sunkalpet Cross,
Bengaluru - 560002.
3. Sri. D. S. Devaraju,
S/o. Sri. D. C. Shankaranarayana,
Aged about 58 years,
No.210, Cubbonpet Main Road,
Bengaluru - 560002.
4. Sri. Muninanju,
S/o. Venkataramanappa,
Aged about 66 years,
No.11, 26th Cross, Cubbonpet,
Bengaluru - 560002.
2
5. Sri. B. S. Balachandran,
S/o. B. V. Subbarayan
Aged about 47 years,
No.238, Market Road, V. V. Road,
Bengaluru - 560004.
(By Sri. V. B. S., Advocate)
-Vs-
Defendants : 1. Sri. Lakshman Singh,
S/o. Mohan Singh,
Aged about 82 years,
Residing at No.4, New 63,
Chikkannamma Devi Temple Street,
Sunkalpet, Bengaluru - 560002.
Since dead by LRs:
(By Sri. K. V. V., Advocate)
1(a) Sri. Krishna Singh,
S/o. Late Lakshman Singh,
Major by age.
1(b) Sri. Balaji Singh,
S/o. Late Lakshman Singh,
Major by age.
1(c) Smt. Maladevi
S/o. Late Lakshman Singh,
Major by age.
All are residing at No.2 and 4,
Now bearing 63/1, Chikkannamma
Temple Street, Ulsoorpet,
Bengaluru-560002.
(By Sri. C. N. S. S., Advocate)
Date of institution of the suit : 13-12-2010
Nature of the suit : Declaration & Injunction
Date of commencement of
recording of the evidence : 23-01-2014
3
Date on which the judgment : 24-05-2023
was pronounced
Total duration : Years/s Month/s Day/s
12 05 11
(M.B.KULKARNI)
XXXV Addl. City Civil &
Sessions Judge, Bengaluru
JUDGMENT
This is the suit filed by plaintiff Nos.1 to 5 against the defendant and his legal heirs for the relief of declaration that plaintiff Trust is the absolute owner in possession of entire open place in and around the temple within A-Schedule property used as prakaara, dedicated to the devotees of Chikkannamma Devi Deity in occupation and possession of the said temple and also for relief of perpetual injunction, restraining the defendant and his Lrs or anybody acting on their behalf from interfering with the peaceful possession of the plaintiffs over A - Schedule property and from dispossessing the plaintiffs forcibly from A - schedule property and also for relief of perpetual injunction restraining the 4 defendants from interfering with the pooja and worshiping of the devotees to the deity of temple within area of A and B - schedule properties as prayed for.
2. Description of suit properties.
SCHEDULE-A Temple property of Chikkannamma Devi Temple with the open area, places and PRAKARA in property bearing No.3/1, Sunkalpet, Bengaluru measurement East to West: 31 feet and North to South: 52 feet and bounded on the :-
East by : Property of defendant;
West by : Private Property;
North by : Private Property and
South by : Chikkannamma Gudi Beedi.
SCHEDULE - B
Alleged claim of defendant, mentioning property bearing Nos.3 and 4, New Nos.63 and 62 consisting of Temple open- space and 8 feet passage situated at Chikkannamma Devi Temple, Sunkalpet, Bengaluru bounded on the:-
East by : Property bearing No.63;
West by : Property of Honnappa;
5
North by : Remaining portion of Property
bearing No.4, belonging to the
Defendant.
South by : Chikkannamma Temple,
passage of 8 feet and
Chikkannamma Gudi Beedi.
3. The case of the plaintiffs-Trust in brief as under:
It is averred by the plaintiffs that plaintiff is a religious Trust. The Trust constitutes group of Trustees and the author of Trust dedicated the same to the deity of Chikkannamma Devi, Vinayakaswamy, Subrahmanyaswamy and Utsavamurthy of Chikkannamma Devi Temple. The plaintiffs have constituted the Trust of Chikkannamma Devi Temple with object of religious and charitable purpose on 20th April 1992. the Trustees of temple invested their personal funds for the purpose of effective management of the temple property. The plaintiff temple is under management of Trustees and the possession vests with deity of Chikkannamma Devi Temple by constituting temple complex and vacant space in and around the temple managed by the Trustees. The plaintiffs constructed temple as per the sanctioned plan and building license issued by the BBMP authorities having license No.514/1993-1994 dated 07.03.1994. The plaintiffs produced 6 photographs to that effect to prove establishment of temple building and surrounding open space and prakhaara of the temple which will be utilized for kitchen and hall for rendering the devotional services of the devotees and disciples. Such plan of the Chikkannamma Devi temple pertains to the Chikkannmma Devi temple having door No.38 and old door No.3/1 and new door No.65. The plaintiffs are in possession and enjoyment of temple having title over suit property for a period of more than period of more than 75 years as per the tippani documents issued by the city survey department, Bengaluru and accordingly plaintiff-Trust is in continuous uninterrupted possession over the suit property, openly to the whole world and perfected its title over A-Schedule property by way of adverse possession. The defendant being adjacent owner of suit property filed O.S.10360/1993 against Sri. Vastad P. Muniswamappa and others without impleading his legal heirs by name Somasundaran and Somanath. Apart from that defendant filed one more suit against plaintiff - Chikkannamma Devi Temple in O.S.300/1966, wherein plaintiff - Trust was constituted with 12 Trustees. In O.S.10360/1993, the defendant prayed for relief of declaration that the building plan sanctioned 7 by the BBMP in respect of plaintiff - Trust temple is null and void and to declare the Trust created by defendant No.3 B.N.Venkatasubba Rao is null and void and also for relief of mandatory injunction and also for perpetual injunction. In the meanwhile, defendant was pursuing the proceedings of O.S.300/1966 for the relief of declaration of title and possession over suit property against the individuals with reference to vacant space situated on the rear-side of schedule temple property and other areas over which the plaintiffs were in possession of that schedule property and plaintiffs of this suit were not parties in O.S.300/1966. They have no knowledge of the proceedings of O.S.300/1966. Therefore, that suit become infractuous and rendered otiso. That suit came to be dismissed. Against the judgment and decree of O.S.300/1966 the aggrieved party preferred R.A.573/1985 before appellate Court and one Sri. B. N. Venkatasubba Rao was party to that suit bearing its number O.S.300/1966, who has created Trust in respect of temple- property and surrounding area of that property and constructed a new temple building by removing the old temple building. That appeal came to be dismissed with observation that the defendant 8 can seek relief of mandatory injunction with respect to the construction of the structure over the suit property even if such construction is completed. Therefore, the defendant could not succeeded in that Misc. First Appeal before Hon'ble High Court of Karnataka. It is further averred that in O.S.300/1966 filed by Lakshman Singh, the plaintiffs of this present suit Chikkannamma Devi Temple who was defendant in that suit by filing written Statement in that suit denied all the contentions of the plaint and disputed claim of Lakshman Singh. One Sri. B. N. VenkataSubba Rao is the author and Trustee of plaintiff - Chikkannamma Devi Temple Trust. The defendant though litigated at particular point of time, did not pursue the litigation and allowed the plaintiff to enjoy ownership and possession over the suit property without seeking any relief much less possession over the suit property, including Garadimane situated at the western side of suit property. In O.S.300/1966, the defendant pleaded that Garadimane being very old building was alloted to Vastad P. Muniswamappa and others free of rent and accordingly the said persons were in exclusive possession of that Garadimane from the year-1944 itself. Thereafter, the defendants of O.S.300/1966 continued the 9 possession of that property. The schedule of plaint of O.S.300/1966 did not consist of measurement in respect of suit property except demarcation by alphabet letters. Therefore, that suit came to be dismissed. Against the judgment and decree of that suit R.A.287/1990 came to be filed by the aggrieved party and the matter appears to be ended before Hon'ble Supreme Court of India, which is not within the knowledge of plaintiff. The defendants has gifted suit property to Gopal Singh under Gift Deed dated 23.10.2010 and has acquired ownership and possession over that property. Another Gift Deed was executed by Lakshman Singh in favour of Balaji Singh in respect of another part of suit property under Partition effected in the family of Gopal Singh between Balaji Singh and lakshman singh. Such Gift deed was executed by Lakshman Singh in respect of suit schedule of that document, the measurement of that property shown as East:West - 31.6 ft and North:South - 13.6 ft. The plea put forward in that suit was that the property bearing No.3/1 standing in the name of Chikkannamma Devi Temple. The plan of temple building was sanctioned in the year-1929-1930 and the revenue records were standing in the name of Chikkannamma Devi 10 Temple as its title holder and possessor. In that suit, the defendant did not implead the plaintiffs of this present suit. Hence, it attained finality in Appeal No.437/1998. Thereafter, defendants in O.S.10360/1993 without prosecuting the case abandoned their rights over the suit property and waived their rights against the plaintiffs-Temple Trust. Thereafter, the decree passed by the Hon'ble Supreme Court of India in Civil Appeal No.2702/2004 is merged in the order of O.S.10360/1993 and it is not binding on the plaintiff - Trust since the plaintiffs are not parties to that proceedings as it became unenforcible. In the meanwhile, the plaintiff Trust demolished the old building of Chikkannamma Devi Temple and constructed new temple building utilizing the entire open-space and passage that claimed in O.S.300/1966. The sketch produced by the plaintiff in O.S.300/1966 was sanctioned by the BBMP for construction of temple building along with prakhara and open-space situated around the temple, shows that suit property belongs to plaintiff and also it shows that plaintiff is in possession of suit property. It is further averred that A-Schedule property belongs to absolute ownership and possession of plaintiffs of this suit. The plaintiffs in 11 O.S.10360/1993 and also in O.S.300/1966 filed suit in respect of same property bearing its Nos.3 and 4 and New Nos.63 and 62 consisting of temple property with open-space and passage situated at Chikkannamma Devi Temple Street, Sunkalpet Bengaluru, which is shown as B - Schedule property of this suit. The defendant in O.S.300/1966 pleaded that suit property was given to 3rd defendant and his father Late. Nanjundaiah who was managing the property along with temple. The property situated abutting to the temple belongs to the defendants ancestors and they have alloted that property to Shamsundar and he has kept Mantapa and other accessories of temple in that property for securing income of temple and erected a shed by obtaining license from BBMP and the same was leased out to one Appajappa under rent document in the year-1939 and later on the same was leased out to one Ramaiah under Lease Deed dated 24.04.1941 and subsequently it was continued by the plaintiffs as vyayama shala managed by the father of Shamsundar. He has obtained sanctioned plan from the BBMP in the year-1929-1930 and erected a Zinc Sheet shed. After partition in the family of defendant it was renovated and given separate door number i.e., 12 No.3/1, which is described as A-schedule property. Therefore, the suit property of this suit is entirely different from schedule property of O.S.300/1966 and schedule property of O.S.10360/1993. Thereafter, the plaintiff had no other alternate remedy except to take steps to protect the temple property and surrounding area described as A schedule property. Since the possession of suit property was taken by the plaintiff after disposal of Civil Appeal No.437/1998, defendants tried to interfere with possession of plaintiff over suit property, in the first week of October - 2010 and attempted to break open the lock of temple including its prakhara and open-space on 30.11.2010. Therefore, the cause of action for this suit has arisen on the above said suit.
Hence, prayed to decree the suit.
4. In pursuance of the suit summons, the defendant appeared before this court and filed his written statement contending that the averments of the plaint are all false and the suit of the plaintiff is not maintainable. It is further contended that suit is barred by Law of Limitation. It is further contended that suit is bad for non- joinder of necessary parties. It is further contended that rough 13 sketch of suit property produced by the plaintiff is none other than Brainchild of plaintiff to knock off of the suit property and to side
-track the judgment passed by the Hon'ble Supreme Court of India. It is contended that the plaintiffs concocted and created the alleged Trust Deed of suit property during the pendency of litigation, therefore the question of perfecting the title of plaintiffs over suit property does not arise at all. It if further contended that the earlier suit O.S.10360/1993 was not prosecuted by the present defendant, who was plaintiff in that suit because that suit was filed for relief of declaration and to challenge the Trust-Deed and also for possession and prior to that one more suit O.S.300/1966 was pending for same relief. Therefore, the plaintiff of this suit had no any independent right over any portion of suit property. Therefore, the question of perfecting the title over suit property by way of adverse possession by the plaintiffs does not arise at all. It is contended that the plaintiffs of this suit are aware about the previous proceeding pending before various courts and purposely they have taken such false contentions. Therefore the plaintiff of this suit are liable for penal action under criminal law of perjury and contempt of court proceedings. It is 14 contended that the alleged trust of plaintiff was not in existence during the year-1929-1930, but it was created in the year-1992. It is further contended that the plaintiff never perfected their title over suit property by adverse possession. In view of the disposal of O.S.300/1966 any subsequent proceeding filed by the plaintiff will not give any rights to the plaintiffs. It is contended that the intention of the plaintiffs in filing such suit is to grab suit property illegally. The plaintiffs have not approached this court with clean hands. It is contended that plaintiffs have no any evidence to prove the declaration of their title over A and B - Schedule properties of this suit and the alleged pleading of the plaint are baseless and concocted only with intention to defeat the judgment and decree of Hon'ble Supreme Court of India in Civil Appeal No.2702/2004. It is further contended that there is no cause of action for this suit and the alleged cause of action is concocted and created one with intention to get wrongful gain and with oblique motive to grab suit property. Hence, plaint is liable to rejected under Order 7 Rule 11 of CPC with exemplary cost and under Section 35A of CPC. It is further contended that the court fee paid by plaintiff is not proper and correct and it is further 15 contended that the defendant filed O.S.300/1966 against one Vastad P. Muniswamappa and one Khalif Seetharam Singh and B. N. Venkatasubba Rao for relief of declaration and possession. The said suit came to be dismissed in the year-1969. Against the judgment and decree of that suit appeal came to be filed before Appellate Court and the matter was remanded back to trial court by virtue of order dated 31.3.1973. Thereafter, fresh judgment was passed by trial court dated 31.1.1978 dismissing the suit. Being aggrieved by the judgment and decree of that suit R.A.287/1980 was filed before appellate court, which came to be disposed off on 18.02.1985. Against the judgment and decree of that first appeal, the aggrieved party preferred second Appeal R.S.A.573/1985 before Hon'ble High Court of Karnataka and during pendency of such second appeal, 3rd Respondent concocted and created a false document styled as Trust Deed to overcome the order passed by Appellate Court with oblique motive. Therefore, defendant filed O.S.10630/1993 against the plaintiff on the ground that the plaintiffs alleged to have interfered with the possession of Lakshman Singh including the suit passage and blocking of suit passage. Therefore, in view of the 16 pendency of the appeal for relief of declaration and injunction, the defendant did not proceed with O.S.10360/1993, since already O.S.300/1966 was pending before the same court for same relief as comprehensive suit. The Hon'ble High Court of Karnataka remanded the matter to trial court to reconsider the same in accordance with law in view of report submitted by the Court Commissioner. Therefore, Appellate Court allowed the appeal in RA.287/1980 and decreed the suit of plaintiffs of that suit. The Lrs of 1st defendant of O.S.300/1966 preferred appeal before Hon'ble High Court of Karnataka in RSA.437/1998. At that time, 3rd defendant of O.S.300/1966 by name - B. N. Venkatasubba Rao has not challenged the judgment and decree passed by the first appellate court. Thereafter, RSA.437/1998 came to be allowed on 29.10.2001 and against judgment and decree of that appeal defendants of this suit preferred Civil Appeal No.2702/2004 before Hon'ble Supreme Court of India which came to be allowed by confirming the judgment and decree passed by First Appellate court in R.A.287/1980 dated 21.09.2010. Thereafter, such judgment of Hon'ble Supreme Court of India has become final and binding on the parties and 17 also anybody litigating under them. During pendency of above said appeal before Hon'ble Supreme Court of India B. N. Venkatasubba Rao died and his Lrs are brought on record. It is further contended that the 3rd defendant in O.S.300/1966 created false Trust Deed and since he was archaka(priest) of the temple, he has no right to create Trust deed or any deed regarding property of temple. The intention of deceased defendant No.3 was to prolong the litigation and to harass the defendants with malafide intention. It is further contended that by virtue of judgment of decree passed by the Hon'ble Supreme Court of India in Civil Appeal No.2702/2004, the rights of the defendants have been crystallized and attained finality. The plaintiffs who are claiming to be trustees of suit property created such Trust Deed during 1992 colluding with one B. N. Venkatasubba Rao to grab suit property. Hence, suit is not maintainable. It is contended that suit is barred under Section 11 of CPC, - res-judicata. Hence, prayed to dismiss the suit.
5. On the basis of pleadings of both parties, the following issues are framed by this court.
18Issue Nos.1 to 7 and additional issues Nos.1 to 3:
1. Does the plaintiffs prove that plaint A schedule property is the absolute property of plaintiff No.1 - Trust as contended in the plaint?
2. Does the plaintiffs prove that the plaintiff No.1 - Trust is in possession of the plaint A schedule property as on the date of filing of the suit?
3. Does the plaintiffs prove that the defendants are interfering in the possession of the plaint a schedule property as contended in the plaint?
4. Does the plaintiffs prove that defendants have no right to obstruct for performing the pooja in the open-space of A schedule property by the devotees of plaintiff No.1 - Trust?
5. Does the defendants prove that suit is bad for non-joinder of necessary parties?
6. Does the defendants prove that the present suit is hit by the principles of res-judicata in view of the reasons stated in para Nos.20 and 21 of written statement?
7. What order or decree?19
Additional issues framed on 03.01.2023:
1. Re-casted Additional Issue No.1. Whether the plaintiff proves that he has perfected his title over suit property by way of adverse possession?
2. Whether the Court-fee paid by the plaintiff is just and proper?
3. Whether the defendant proves that the suit is barred by limitation?
6. After framing issues, the matter is posted for plaintiff's evidence. The 2nd plaintiff got examined in-chief as PW1 and got marked documents at Ex.P.1 to Ex.P.20 and its tributaries. Ex.P.1 is the so-called alleged certified copy of Trust - Deed dated 20.04.1992. Ex.P.2 is so-called alleged plan of temple of plaintiff. Ex.P.3 is endorsement issued by BBMP in form No.9. Ex.P.4 is certified copy of plaint of O.S.10360/1993. Ex.P.5 is the certified copy of written statement filed in the said suit. Ex.P.6 is so-called alleged blue print sketch of temple building of plaintiff in respect of alleged suit property dated 5.4.1993. Ex.P.7 is endorsement issued by the City Municipality, Bengaluru dated 2.4.1930. Ex.P.8 is receipt issued by CMC, 20 Bengaluru dated 25.6.1943. Ex.P.9 and Ex.P.10 are the so-called alleged two sketches of plaintiff - temple dated 24.3.1936. Ex.P.11 is so-called Lease Deed dated 31.12.1939 pertaining to suit property. Ex.P.11A its typed-copy. Ex.P.12 is certified copy of Lease Deed dated 24.04.1941 pertaining to alleged suit property for the year-1941 and Ex.P.12A is its typed-copy. Ex.P.13 is so- called alleged agreement of suit property dated 23.04.1948. Ex.P.13A is its typed-copy. Ex.P.14 is certified copy of Execution Petition No.1317/2012. Ex.P.15 is CD of the alleged photographs of suit property. Ex.P.15(a) to Ex.P.15(o) are the photographs of the suit property. Ex.P.16 is certified copy of Gift Deed of suit property dated 25.03.2010 alleged to have executed by Lakshman Singh in favour of Gopal Singh. Ex.P.17 is one more Gift Deed of suit property executed by Lakshman Singh in favour of Balaji Singh dated 25.03.2010. Ex.P.18 is the certified copy of Partition Deed pertaining to family of B.N. Venkatasubba Rao dated 12.10.1936. Ex.P.18A is its typed-copy. Ex.P.19 is the endorsement issued by BBMP dated 18.10.2022 in respect of plaintiff - temple property. Ex.P.20 is the agreement executed by one R. P. Muniswamappa dated 22.01.1944 in favour of B. N. 21 Venkatasubba Rao son of Nanjundaiah in respect of rent of B schedule property, in respect of construction of shed out of his own investment and undertaking to look-after expenses of daily pooja and other functions of temple including repair of temple etc., Ex.P.20A is its typed-copy. Thereafter PW1 has closed his evidence. Thereafter, he examined another six witnesses in support of his case as PW2 to PW7 and all these witnesses PW1 to PW7 are cross examined by the other-side. Thereafter, plaintiff's side evidence is closed and posted for defendant's evidence.
7. At the side of defendant's side, defendant No.1(a) got examined in chief as DW1 by filing his affidavit for himself and on behalf of other defendants and got marked documents at Ex.D1 to Ex.D.18. During the cross examination of PW1 to PW7, defendant confronted some documents to such plaintiff-witnesses and in view of admission of such documents by such witnesses they are marked in D-series. Ex.D.1 and Ex.D.2 are certified copies of Judgment and Decree passed in O.S.300/1966. Ex.D.2A is sketch of suit property. Ex.D.3 is the Court Commissioner report marked in O.S.300/1966. Ex.D.4 and 22 Ex.D.5 are certified copies of Judgment and decree pertaining to RA.287/1980. Ex.D.6 is certified copy of Judgment of RSA.573/1985. Ex.D.7 and Ex.D.8 are certified copies of judgment and decree pertaining to RSA.437/1988. Ex.D9 is the certified copy of Order of Hon'ble Supreme Court passed in Civil Appeal No.2702/2004. Ex.D.10 is certified copy of examination in-chief affidavit of plaintiff No.2 by name - Rangaswamy pertaining to Execution case No.1717/2012. Ex.D.10A is assessment extract of suit property pertaining to Door Nos.2, 3 and 4 situated at Chikkannamma Gudi Street, Sunkalpet, Bengaluru. Ex.D.11 is assessment extract and register pertaining to door Nos.2, 3 and 4 of above property for the year- 1913 to 1916 containing boundaries of suit property, issued by the CMC, Bengaluru. Ex.D.12 is the endorsement issued by the Spl. Tahsildar Bengaluru dated 19.2.1964 showing the plaintiff temple is not registered as Public Trust property, since it is not under control of Muzrai department of Government. Ex.D.13 is khata extract of suit property standing in the name of defendant dated 23.09.2010. Ex.D.14 is tax paid receipt of suit property standing in the name of Annamma Devi Temple dated 04.04.2022. Ex.D.15 23 to Ex.D.18 are photographs of suit property. After examination in- chief of PW1, he is cross examined by the other-side and thereafter defendant has closed his evidence. Hence, posted for arguments.
8. Heard arguments of both-sides. Examined the oral and documentary evidence placed on record.
9. My findings to the above issues are as under:
Issue No.1: In the negative.
Issue No.2: in the negative.
Issue No.3: In the negative.
Issue No.4: in the negative.
Issue No.5: in the affirmative.
Issue No.6: In the affirmative.
Additional Issue No.1(Re-casted issue): In the negative.
Additional Issue No.2: In the negative.
Additional Issue No.3: In the Affirmative.24
REASONS
10. Issue Nos.1 to 4, 6 and additional issue Nos.1 and 3: I have taken all these issues together for common discussion on the ground that they are interlinked with each other and to avoid the repetition of reasoning.
11. The plaintiff has approached this court for relief of declaration of title over the suit properties and injunction. Therefore the burden of proof of issue nos.1 to 4 and additional issue No.1 are on plaintiff. Unless and until the plaintiffs prove their title over suit properties as per above issues, the burden does not shift upon the other-side. Therefore the plaintiffs have to prove first the above issues.
12. The plaintiffs claimed title over suit properties in two fold manner based on alleged right of trustees of Chikkannamma Devi Temple and also alleged right of adverse possession over the suit properties. The first and foremost plea of plaintiff regarding their claim of title over suit properties is under the so- called alleged Trust-Deed of plaintiff temple. Now, let this court examine whether the plaintiff proved execution of Trust-Deed by 25 placing cogent and convincing evidence on record and rights of trustees over A- Schedule property.
13. The careful perusal of Ex.P.1 - i.e., so-called alleged certified copy of Trust-Deed dated 20.04.1992 goes to reveal that on 20.04.1992, Late Sri. B. N. Venkatasubba Rao S/o. Nanjundappa executed Trust-Deed in respect of Chikkannamma Devi Temple, stating that he being the priest(poojari) i.e., archaka of Chikkannamma Devi Temple situated at Chikkannamma Devi Temple street, Bengaluru intended to construct new temple by removing the damaged old temple under fire accident for sake of devotees of temple and public in general for doing daily pooja and darshana of Chikkannamma Devi with help of the funds collected by the public in general. Since it is not possible for him alone to construct temple building independently, he intended to appoint trustees and donated Rs.500/- to the Trust as a founder and author of Trust and also as one of the trustee and appointed twelve persons as trustees by name - 1. Gundappa s/o. Nanjappa Dixit, No.2 - D.C. Shankarnaryanappa S/o. Chinnappa, No.3 - R. K. Rangaswamappa S/o. Krishnappa, No.4 - S. R. Siddaraju S/o. Revanna, No.5 - Chikkashankarappa S/o. Gante 26 Shankarappa, NO.6 - K. N. Vasantha Kumar S/o. K. H. Muniswamy, No.7 - Muniraju S/o. Venkataramanappa, NO.8 - Contractor N. Subbarayappa S/o. Doddamuniswamappa, NO.9 Sathyanarayana Gupta S/o. Ashwathanarayana Shetty, No.10 - B. S. Balachandran S/o. B. N. Venkatasubba Rao, NO.11 - V. Venkatesh Murthy S/o. H. Venkatappa and No.12 - B. N. Venkatasubba Rao, S/o B. Nanjundappa and created Trust in the name and style of Chikkannamma Devi Trust and directed the trustees to do all transactions of trust in that name only having place of office at temple itself, to do administration of Trust activities and to form a Committee of Trust for the renovation of temple building and management and also to keep accounts of Trust by opening a Bank account and to do all mandatory transactions with help of cheque of Bank only and to maintain the accounts properly along with income of Trust and donations received from public in general and also to do daily pooja and other religious activities by appointing archaka(priest or poojari) and also by appointing President and Vice-President, Secretary and Treasurer of Trust and also to hold election of such office- bearers once in two years. Further, it is recital of alleged Trust- 27 Deed that Trustees have got right to retire from the Trustee-ship and Trustees also got right to remove any other trustees who causes loss to the Trust - property due to their negligence or by intention and further it is mentioned that trustees got right to appoint other trustees in case of death or retirement or removal of trustees. It is further recital of alleged Trust-Deed that all the documents and all the bank accounts shall be in the custody of President only and name of the trustees is written by the scribe in his own handwriting but none of the trustees and witnesses have signed the alleged Trust-Deed. Therefore the plaintiffs have to prove how the founder of Trust or author of Trust have got right to constitute lawful Trust in respect of Chikkannamma Devi Temple Trust.
14. The careful scrutiny and examination of Ex.P.18 - document that is so-called Partition Deed pertaining to family of B. N. Venkatasubba Rao goes to reveal that he has got only right to perform pooja of Chikkannamma Devi Temple as a priest or poojari but not the owner of the temple. Therefore, without having ownership over the property of temple one cannot create or establish Trust in respect of the property belonging to 3rd party. In 28 this regard, it is necessary to refer the Book of Indian Trust Act, 1882 written by Author C.R.Rao published by S.P.Puliani editor of Bureau of India Capital Bengaluru pertaining to 1 st edition of the year-1993, wherein the Section 3 of Trust Act, reveals the definition of Trust as under;
"Section 3 of Trust Act: A Trust is an obligation annexed to the ownership of the property and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another or of another and the owner".
15. The person who reposes or declares the confidence is called as author of the Trust and the person who accepts the confidence is called as Trustees and the person for whose benefit the confidence is accepted is called the beneficiary of the Trust and the subject matter of the Trust is called as Trust property of the Trust.
16. Therefore, in pursuance of Section 3 of Indian Trust Act, which is applicable to this case in order to establish Trust, the author of the Trust must be owner of the Trust property, but in this suit, the author of the Trust Sri. B. N. Venkatasubba Rao was not the owner of the trust property or suit property, therefore he has 29 no right to create Trust and such alleged Trust created is illegal and void ab intio. Apart from that it is pertinent to note here that the Trust deed requires compulsory registration under Law. But Ex.P.1 Trust-Deed is not registered. Hence, it has no legal sanctity under Law. It is pertinent to note here that as Per Section 3 of Trust Act, the trustees have to accept the trust by signing the Trust Deed, but the careful perusal of Ex.P.1, the alleged Trust- Deed does not reflect any signature of the trustees for having received the confidence reposed by the author of Trust. Therefore, Ex.P.1 - Trust-Deed not complied with mandatory provisions of Trust Act.
17. The careful perusal of Ex.P.1 - document though appears to be a certified copy of the document, there is no clarity as to which authority has issued such copy. The plaintiff has submitted the certified copy obtained from City Civil Court, Mayohall office, but the round seal of Ex.P.1 does not show the name of the court on all pages of Ex.P.1 and even the emblem of the state Government is not clear and even the seal and signature of the examiner of the Copying Branch is not visible in such document. Therefore, it is one of the suspicious document 30 and for the proof of its genuines, this court cannot consider such document as certified copy of Trust-Deed. The plaintiff has not produced the original Trust-Deed and in his pleading, the plaintiff has not pleaded where is the original Trust-Deed and why such original Trust-Deed is not produced before this court. Unless and until the plaintiff pleads in his pleadings regarding non-availability of original document for the reasons acceptable under Law, the certified copy of such document cannot be accepted as proof of pleading evidence as secondary evidence.
18. In page No.49 of Section 3 of above said book furnished by the defendant during the course of his arguments, it reveals that "A Trust is a very important and curious instance of duplicate ownership i.e., owned by two persons at the same time, one of them is under obligation to use his ownership for the benefit of other. The former is called as trustee and the latter is called beneficiary and he is beneficiary ownership. The Trustee is not owner of Trust Property, but he is mere agent upon whom the Law has conferred 31 Power and imposed the duty of administering the property of another person and the author of the trust must be owner of the trust property, he is a person to whom the property of some one else is fictitiously attributed by law to the extent that the rights and powers does vested in a nominal owner shall be used by him on behalf of real owner".
19. Therefore, when the author of Trust - Sri. B. N. Venkatasubba Rao is not the owner of suit property, he has no right to create Trust in respect of the property of defendants, who are owners of suit property, wherein the Gift Deeds - Ex.P.16 and Ex.P.17 standing in the name of defendants and also wherein the plaintiff - witnesses admitted in cross examination that suit schedule A-property measuring 31 ft. X 13 ft. fallen to the share of ancestor of defendants - Maha Singh during partition of their family and Maha Singh has given his share of property for construction of Chikkannamma Devi Temple.
20. Even for sake of arguments, it is presumed for the academic purpose of discussion to analyze the true spirit of the Ex.P.1 - document that Late B. N. Venkatasubba Rao by 32 investing Rs.500/- created the Trust, the essentials of the lawful trust shall be proved by the plaintiffs without which they are not entitle to get any relief in this suit.
21. As per Section 5 of Indian Trust Act, the Trust-Deed requires compulsory registration, but Ex.P.1 - alleged Trust-Deed is not registered document, which has no evidenciary value in the eye of Law. As per Section 11 of the Act, trustee is bound to fulfill the purpose of the trust and to obey the directions of author of the Trust at the time of creation of the Trust and as per Section 12 of the Act, the trustee is bound to know the nature and circumstances of the Trust property and to obtain trust-property for the purpose of creation of Trust. PW1 in his cross examination has clearly admitted that there is no registered office of Trust and he has not produced the audit accounts of Trust property before this Court to prove the management of Trustees and not produced any resolutions passed by the trustees regarding the appointment of new trustees in place of death of old trustees etc., Further, PW1 went to the extent of deposing that Trust is not in existence as on date of filing suit. Therefore, on the basis of such admissions of PW1, the plaintiffs have not put 33 foundation of their case to prove the Trust-Deed and Trust- property of plaintiff temple and title of plaintiffs over suit property.
22. As per Section 19 of the Indian Trust Act, the trustee is bound to keep clear and accurate accounts of trust - property at all reasonable times at the request of beneficiary and to furnish full and accurate information of such accounts of Trust-Property. As per Section 31 of the Indian Trust Act, the Trustees have to produce the original Trust-Deed i.e., document of title and he must have possession of such instrument of Trust property but such original document of Trust-Deed is not produced by the plaintiff which suspects the case of plaintiff.
23. As per Section 47 of Indian Trust Act, the trustee cannot delegate his powers or his office to any other persons either to co-trustee or to strangers unless the instrument of Trust so provides. In this suit, after death of so-called original trustees some strangers have come before the court claiming that they are the managing committee of Trust - property, wherein they have not produced document of formation of management committee of plaintiff - Trust as per the Law by passing resolution time to time under the authority of author of Trust or with the consent of 34 co-trustees and without lawful authority, the so-called persons PW1 and PW2 claiming themselves as President and Vice- President and Secretary of Plaintiff-Trust have no right to file suit without basis of any documentary evidence.
24. According to Section 73 of Indian Trust Act, whenever any trustee dies or discontinued or continuously remained absent for more than 6 months to attend his duties as trustee or leaves India and resides at abroad or declared as insolvent or discharged from trusteeship or refuses to continue as trustee, a new trustee shall be appointed in his place as per the terms of the Trust-Deed. In this case even though some of the trustees died the new trustees are not appointed by the plaintiff trust which amounts to breach of the conditions of the Trust. Such appointment of new trustees in place of vacancy of the post of dead Trustee arises only in case of private Trust, but not public Trust as per the dictum of Hon'ble High Court of Delhi reported in AIR 1982 Delhi page No.453.
25. The careful perusal of Ex.P.3 produced by the plaintiff and D12 goes to reveal that the Government authority has issued endorsement stating that plaintiff Trust is not registered as 35 Government Trust which is not coming within the control of Muzrai Department. Therefore, alleged plaintiff-Trust alleged to be a private Trust not followed the Section 73 of Indian Trust Act and breach of such provisions of Law amounts of extinguishment of Trust.
26. It is pertinent to note here that in AIR 1956 MADRAS page No.574 in case of A. N. M. Ramakrishna chetty v/s Thangavelu Chetty, it is held that the amount lend by trustee for the formation of Trust and failure of the trustee to use such amount for the purpose of the Trust amounts to discontinuation of Trust. Therefore, in this present case, there is no evidence placed by plaintiff on record regarding use of Rs.500/- alleged to have been given by author of Trust for the purpose and object of Trust. The plaintiffs have not placed any evidence on record to prove from what source of income they have constructed the alleged temple building of Chikkannamma Devi Temple and no any accounts of such Trust is furnished before this Court, which creates suspicious circumstances of the pleadings of the plaintiffs.
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27. As per Section 6 of Trust Act, the formation of Trust is nothing but transfer of property by the owner of such property in the form of Trust to the beneficiary of the Trust within the meaning of Transfer of Property Act. No Trust will be constituted as per the Law unless and until he transfers his own property to the beneficiary under Trust. Therefore, such transfer of property requires compulsory registration, but Ex.P.1 is unregistered.
28. It is pertinent to note here that as per the citations reported in AIR 1991 MADRAS page No.90 in case of Pappu V/S Shanmugam and others, it is held that where the Trustee is required to render the accounts of Trust, failure of Trustee to render such bank accounts amounts to default on part of trustee which goes to root of the Trust-Deed and it disqualifies such person as trustee and therefore such disqualified trustee is not entitled to file suit on behalf of Trust property. Therefore, in view of the such defaults on the part of plaintiff Trust, there is no prima- facie case made out by the plaintiffs to prove existence of Trust as on date of filing the suit and such degree of proof required is not mere presumptive proof, but conclusive proof. Therefore, 37 high degree of proof of existence of Trust of plaintiff temple is not available as on date of filing the suit.
29. The careful perusal of Section 92 of CPC, mandates the Trustees to get leave of the court before filing any suit in respect of trust property. According to Section 92 of CPC, before filing such suit any two or more persons who are interested in such Trust shall get permission of the court of Principal of Civil Judge of original Jurisdiction or any other court empowered in that behalf to get any relief of declaration and injunction in respect of Trust property. Therefore, without getting prior permission of Court filing such suit in not maintainable under Law.
30. The careful perusal of Ex.P.1 - alleged Trust-Deed reveals that though it is private Trust the object of Trust is for the benefit of the whole public in general and not restricted to the family of the author of Trust as hereditary Trust. Therefore, when the relief is required to be sought against any person obstructing the Trust property the suit shall be on behalf of the public in general who are devotees of temple either through Trustees or through any other two or more devotees of such temple, who are the ultimate beneficiaries of the Trust property. 38 Therefore, it is not open for the plaintiffs to argue that plaintiff - Trust is hereditary Trust and they cannot seek permission of the court to file suit for declaration and injunction. Even though on the face of record the alleged plaintiff - Trust appears to private Trust, the object of such Trust appears to be for the benefit of public in general. Therefore, the plaintiffs have to comply Section 92 of CPC, without which such suit is not maintainable.
31. The careful perusal of the pleadings of the plaintiffs reveals that only plaintiff No.2 - Mr. K. Rangaswamy signed original plaint as President of Trust, but not signed by other trustees. If at all the other trustees are not willing to join as plaintiffs in this suit, then as per the CPC, they have to be placed in the rank of defendants but it is not done so. Therefore, that is one of the legal defect. Apart from that, the plaintiff No.2 who alleges to be President of Trust not produced any authorization letter issued by other Trustees under resolution alleged to be passed by the trustees empowering the alleged President of Trust to file this suit for and on behalf of the plaintiff - Trust, therefore that is also one of the legal defect which does not empower the President of plaintiff - Trust to file the suit.
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32. The careful perusal of amended plaint of this suit reveals that plaintiff No.2 signed twice on all pages of the plaint and in the original plaint plaintiff No.2 K. Rangaswamy signed as President, but in amended plaint name of plaintiff NO.3 - Devaraj is shown as President of Trust and in order to clarify such fact whether plaintiff No.2 is President or plaintiff No.3 is President of Trust, the appointment letter of such party under the resolution of Trustees is not produced before this Court. In the evidence the plaintiff No.2 at one place given statement that he is Vice- President of plaintiff Trust, but he signed as President of Trust. Therefore, there is no any corroboration between pleading and proof, but on the other-hand there is variation between pleading and proof which leads to probabalize the fact that the plaintiff's case vexatious one.
33. The careful scrutiny and examination of the documents produced by the plaintiffs at P-series reveals that as per Ex.P.2, which is the sketch of the plaintiff- temple is disputed by the defendant wherein it pertains to year-1993. So far as Ex.P.3 document is concerned the careful perusal of such document reveals that it does not pertain to suit property but it 40 pertain to Annamma Devi temple situated at Nagartharapet, Bengaluru which is having its extent 135 mts. The careful perusal of plaintiff temple situated at Sunkalpet area, Bengaluru near Chikkannamma Devi Temple Street is having its measurement 31ft. x 35 ft. Therefore, it appears that the plaintiff in order to mislead the court produced the wrong document pertaining to some other property situated at some other place, totally having different measurement to get wrongful gain. Therefore, such document cannot be considered in evidence.
34. The careful perusal of Ex.P.4 document, the certified copy of plaint of O.S.10360/1993 reveals that such suit is filed by Lakshman Singh S/o. Mohan Singh against Muniswamappa and Seetharam Singh and Venkatasubba Rao for declaration, that sanctioned plan of plaintiff temple by defendant No.5 BBMP is null and void and to declare that the Trust-Deed created by defendants of that suit is null and void and for mandatory injunction directing the defendants not to putup any constructions in the suit property. The careful perusal of schedule of that suit reveals about the same schedule of O.S.300/1966 i.e., property Nos.3 and 4 and New property Nos.62 and 63 along with open- 41 space and passage of 8 ft. situated at Sunkalpet area, Bengaluru. The subject matter of this suit is property No.3/1 of Sunkalpet exactly tallies with the subject matter of O.S.300/1966 and O.S.10360/1993. O.S.300/1966 already attained finality. Hence, this present suit is hit by Section 11 of CPC.
35. The careful perusal of Ex.P.6, blue-print plan of temple building shows that temple building is measuring only 31ft.x35ft. and not 31ft. x 52ft. as claimed by the plaintiffs. Such document reveals that municipality authorities striked out the excess portion of the plan shown as verandah of temple, which is alleged to have encroached area of municipality area of Road(footh-path) to the extension of 17 feet. Such blue-print plan does not consists of alleged verandah and also does not contain compound wall and prakhara as alleged by the plaintiffs. Such document Ex.P.6 also does not consist of proposed plan for construction of Vinayaka Temple, Utsavamurthy temple, etc., Such document is issued by CMC(BBMP) Bengaluru on 5.4.1993 and signed by Deputy Director of Land Records on 7.3.1994. Such document Ex.P.6 does not reveal about proposed construction of hall of temple and kitchen and other prakhara of 42 the temple at back-side of temple, as shown in Ex.P.9 and Ex.P.10. Therefore, Ex.P.9 and Ex.P.10 are not tallying with Ex.P.6. Therefore, in all probability Ex.P.9 and Ex.P.10 sketch and map of alleged plaintiff temple building are concocted and created documents.
36. The careful perusal of Ex.P.7, license issued by CMC, Bengaluru dated 2.4.1930 goes to reveal that one Nanjundappa was permitted to construct the building in open- space of temple, but such building was not constructed as on 2.4.1930 and also not constructed as per building plan 25.6.1943, but it was constructed in the year-1993-1994 without any fresh license and approved plan by the BBMP. Therefore such construction is illegal one, which is not authorized by the local body. The careful perusal of Ex.P.8, fresh license issued by the CMC in the name of B. N. Venkatasubba Rao, to construct the building in suit property as per his application dated 3.6.1943, but as per such license temple was not constructed in the year-1943.
37. The careful perusal of Ex.P.11, the alleged rent agreement of B Schedule property situated behind the temple goes to reveal that it was executed on 31.12.1939 by one B. N. 43 Venkatasubba Rao in favour of one Appajappa for rent of Rs.4.8/- paise per month with advance amount of one month rent and to hand over the possession of such property to Venkatasubba Rao immediately after termination of tenancy. It is pertinent to note here that B. N. Venkatasubba Rao not being the owner of B schedule property has no right to execute rent agreement in favour of Appajappa. Therefore, such document has no legal sanctity in the eye of Law. Similarly Ex.P.12 document alleged to be one more rent agreement executed by B. N. Venkatasubba Rao in favour of one Ramaiah Son of Narayanappa in respect of B schedule property dated 24.4.1991 for rent of Rs.4/- per month for a period of 11 months. For this document also the executor Venkatasubba Rao had no title as a owner to execute Rent agreement in favour of tenant. The careful perusal of Ex.P.13 document i.e., unregistered agreement executed by P. Muniswamappa dated 23.04.1948 reveals that Muniswamappa had undertaken to look after the expenses of religious functions of temple, including pooja and annual karaga and prasada of daily pooja including procession of deity at Jatra till 1962 out of his own expenses and also undertaken to vacate B schedule 44 property which proposed to be constructed by him out of his own funds and further undertaken that in case if it happens to retire him from management of Balarama Vyayamasala he would retire by intimating in advance to the managing Committee consisting of Munivenkatappa, Venkatarama Reddy and Venkateshappa. As observed supra, Venkatasubba Rao not being the owner of B schedule property has not right to get agreement in his favour from P. Muniswamappa and without having ownership over suit properties Venkatasubba Rao appears to have done illegal acts in respect of suit properties as if true owner taking disadvantage of his right to worship the temple as poojari or priest. Therefore, in all probability all these document Ex.P.11 to Ex.P.13 appears to be concocted and created documents for the purpose of this suit, anyhow to get remedy from this court.
38. The careful perusal of Ex.P.14 document reveals that Lakshman Singh filed Execution Petition No.1717/2012 against the plaintiffs on 13.7.2012 for execution of the decree of O.S.300/1966 and also Civil Appeal No.2702/2004 passed by the Hon'ble Supreme Court. The careful perusal of Exs.P.15(a) to (o) i.e., photographs of B Schedule property and temple of A- 45 schedule property goes to reveal that open-space is available at the back of the temple building, wherein defendants have kept their vehicles for parking and stored waste materials of their family and using open-space for drying their family clothes. The careful perusal of Ex.P.15(o) - photograph clearly reveals that the plaintiffs have blocked 6ft. Passage which was under use and enjoyment of defendants as easmentary rights by constructing brick wall in between temple property of defendants, which is unplastered wall constructed hurriedly to meet their unlawful gain. The careful perusal of Ex.P.15(n) photograph reveals about construction of a temporary shed in B schedule property with zinc sheet roof, which ultimately came to be demolished by the defendants after conclusion of the matter by the Hon'ble Supreme Court as per the judgment passed by the Hon'ble Supreme Court in Civil Appeal No.2702/2004.
39. The careful perusal of Ex.P.16 document produced by the plaintiff reveals that it is the Gift Deed executed by Lakshman Singh son of Mohan Singh in favour of Gopal Singh on 25.3.2010 in respect of the property bearing its Nos.2 and 4, new No.63 situated at ward No.47 of BBMP measuring 31.6ft- 46 east:west and 13.6 ft., north:south having a house in it and also one more property pertaining to same number situated at same place measuring east:west-18.6 ft and north:south-9.6 ft. which is open-space including water-well and a house. The careful perusal of Ex.P.17 document reveals about the execution of Gift Deed by Lakshman Singh son of Mohan singh in favour of his son Balaji Singh on the same date as that of Ex.P.16 and in respect of same property number shown in Ex.P.16 having its measurement east:west-31.6 ft. and north:south-13.6ft. with a house and open- space and another property bearing same door number measuring east:west-9ft and north:south - 10 ft., open space and a old house. These two documents being registered documents which is 12 years old document having presumptive value in the eye of law in respect of title of defendant which is not challenged by the plaintiffs within limitation period of 3 years from date of its execution. Therefore, Ex.P.16 and Ex.P.17 documents proves title of defendants over suit properties.
40. The careful perusal of Ex.P.18 document i.e., Partition Deed alleged to have executed between family members of B. N. Venkatasubba Rao in respect of their ancestral properties 47 goes to reveal that only the right of performing pooja of Chikkannamma Devi Temple as a priest is given to Venkatasubba Rao but not any other rights in respect of suit properties. This document being private document of Venkatasubba Rao's family which is not executed by defendants or their ancestors, it is not binding on defendants. This document does not prove ownership of Venkatasubba Rao over the suit properties.
41. The careful perusal of Ex.P.19 document goes to reveal that it is an endorsement issued by the BBMP dated 18.10.2022 regarding particulars of Annamma Devi Temple, wherein the measurement of such temple was shown as 31 ft x 52 ft. having IPD No.47/138/165 having present door no.65. Such document is not tallying with the suit property because in schedule of this plaint, A schedule property is described as door No.3/1 of Sunkalpet area, Bengaluru, but not door No.65 and such IPD number mentioned in Ex.P.19 is not described in schedule A of the plaint. Therefore, in all probability Ex.P.19 document is a different document not relating to suit property. Therefore, such document is not coming to help of plaintiff to prove their case.
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42. The careful perusal of Ex.P.20 document, ie., unregistered rent agreement of suit property alleged to have executed by one P. Muniswamappa in favour of Venkatasubba Rao dated 22.01.1944 in respect of B schedule property open- space situated behind the temple, wherein vyayama shala was being run shows that Muniswamappa has undertaken to construct such Vyayamashala temporary shed out of his own funds and undertaken to pay rents of Rs.100/- per annum to Venkatasubba Rao and also undertaken to look after the expenses of temple including karaga and religious activities including expenses of repair of temple which is not connected to management of temple. Since Venkatasubba Rao had no right of ownership over B schedule property as a owner he has no right to get such document in his name and under what authority or power such document came to be executed between Muniswamappa and Venkatasubba Rao is not proved by the plaintiffs. Simply production of documents will not suffice unless and until it is proved by the plaintiffs regarding their title and authority over suit properties for having entered into contract with other third parties. Otherwise if the plaintiffs fail to prove such ownership title or 49 authority and power to deal with suit properties the logical meaning of mere production of document construde to be concocted and created documents for the purpose of this suit. Therefore, such documents cannot be believed and accepted in evidence which has no basis at all.
43. On the other-hand, in order to disprove the case of plaintiff and prove his title over suit properties (A and B - schedule properties) the defendants entered into witness box as DW1 and got marked some documents in support of his defence at Ex.D.1 to Ex.D.18.
44. The careful perusal of Exs.D.16 and 17 documents reveals that the ancestor of defendants by name - Krishna Singh purchased part of suit property bearing Nos.2 and 4 and New No.63 under registered sale deed of the year-1833 and thereafter ancestor of defendant - Maha Singh purchased another portion of old door No.2 and 4 and new No.63 under registered Sale Deed dated 9.8.1904 having reference number i.e., registration No.4, book No.1, volume No.4 page Nos.408 to 413 and the grandmother of defendants Smt. Rukmini Bai wife of Maha Singh purchased one more portion of the same property of the same 50 number on 22.8.1911 having registration No.505, book No.1, volume No.460 page No.422 to 427. Such document also reveals that grandfather of defendants Krishna Singh purchased one more portion of same property bearing old No.2 and 4 and new No.63 on 28.10.1912 under registered sale deed having registration No.1489, book No.1, volume No.195, page Nos.338 to 341. In addition to these different portion of property the defendant's ancestor purchased one more portion of suit property having same door number under registered dated 22.08.1921 and since after death of Krishna Singh his son of Mohan Singh succeeded to above said properties of their ancestors, he has gifted such properties to the defendants by name Gopal Singh and Balaji Singh under Gift Deed dated 25.03.2010. Such documents i.e., Sale Deeds of suit property of the year -1833 and dated 09.08.1904 and 22.08.1911 and 28.10.1912 being more than century old documents are having presumptive value of title of the defendants over the suit property under Section 90 of Evidence Act. Therefore, the above said sale deeds of the year- 1833, 1911, 1912 which are having its detailed registration number, book number and volume number registered in office of 51 Sub-Registrar proves conclusive proof of title of defendant over the suit schedule A and B - properties.
45. Apart from that, it is pertinent to note here that plaintiff - witness admitted in cross examination that A - schedule property was fallen to the share of ancestor of defendants Maha Singh in their family partition and that share of Maha Singh measuring 31ft. x 35ft. was given by him to construct Chikkannamma Devi Temple as private temple and Maha Singh used to perform pooja of the temple as archaka. Therefore, on the basis of such documentary evidence and admission given by the plaintiffs - witnesses the defendants proved their title and possession over A and B - schedule properties, but the plaintiffs failed to prove their possession and title over A and B - schedule properties.
46. The careful perusal of Ex.D.10A to Ex.D.14 documents which are revenue documents goes to prove the possession of defendants over suit properties, wherein the name defendants is entered in such revenue documents as owners and occupants. In such documents, the door number and boundaries of the suit properties are also specifically mentioned. So these 52 documents proves title and possession of defendants over suit properties.
47. The careful perusal of Ex.D.3 - Court Commissioner's report reveals that the temple is facing towards South. The door of temple is having its No.3. There is a door situated to the west of verandah leading to passage and thereafter towards western side there is a lavatory. Such door is old one about 10 -15 years old one. In verandah towards western side (left side) there is XY wall having 5ft. in height. Such wall is a separate wall and not continuous wall along with old temple wall. It is recently constructed wall about 2-3 months before Court Commissioner visiting the spot. Such report reveals that towards right side of wall there is a passage of 20 ft. wherein flower plants are grown and after that there is entrance facing southern side without door and shutters, which leads to a room measuring 12 x 15 ft. which is a temporary shed with zinc sheet about 6-7 years old as on date of Court Commissioner work. The report further reveals that walls of such shed is having 4ft. height on all sides and not plastered. Towards western side there is a stone slab of 6ft heigt on the ground and towards eastern side there is entrance to the 53 room without door and shutter and behind that there is one more door with shutter and in between two walls there is vacant space of about 2 ft width. The report further shows that after passing through such doors there is vyayamashala measuring 15ft. x 15ft. constructed in mud wall with bricks and not plastered. The age of such temporary shed is about 6-7 years old. The roof of such shed is in dilapidated condition. In front of temple, towards eastern side and western side there are parapet walls of 2ft. height and passage on the western side. Towards east, there is house of Mohan singh. The height of vyayama shala and adjacent room are of same height. The Commissioner's report further shows that behind the temple after entering through the door towards eastern side door No.63 is written on the shutter of the door attached to that door, there is a passage of 30-40 ft. passage towards western (left of passage) side. There are steps to go to tenements of Mohan Singh house. After going through passage for about 15ft, towards left (western side) and after moving about 10 ft., there is one turning towards southern side and thereafter a distance of 5-6 ft., there is entrance to the tenements of the defendants. The roof of that building is old tiled 54 roof. After entering into tenement of defendants, at the distance of 10ft., there is old door of 4ft. height and through that door old bricks wall of vyahamashala can be seen, which is constructed about 6-7 years back prior to Court Commission work. Therefore, such court Commissioner report gives clear picture of suit property, consisting of vyahama shala, open-space, 6ft., passage at western side and 20 ft, passage at eastern side with open- space which are all in possession and enjoyment of defendants. Therefore, this document Ex.D.3 helps the defence the defendants to prove their case, but not coming to the help of plaintiff, wherein plaintiffs have purposely blocked 6 ft. passage by constructing wall illegally and illegally prevented defendants to enjoy suit schedule A and B - properties.
48. The careful perusal of Ex.D.10 reveals that it is the examination in chief affidavit of PW2 by name K. Rangaswamy and his cross examination in E.P.1717/2012, wherein he has admitted that suit property temple does not belongs to any of the trustees of plaintiff - temple and further admitted that in Trust- Deed there is no mention about temple-property. Therefore, in view of such admission when temple-property does not belong to 55 plaintiff trustees and when there is no mention of trust- property (suit property) in the Trust-Deed, suit property does not belong to plaintiff's trustees in any manner. Further in the cross examination he has shown ignorance whether in the year-1959 Mohan Singh was archaka of Chikkannamma Devi Temple and he has filed suit against Venkatasubba Rao in O.S.300/1966. Therefore, ignorance amounts to consent. Further in the cross examination though the plaintiff No.2 deposed the boundaries of suit property such deposition of boundaries does not tally with schedule of suit schedule A - property. Further, in cross examination though plaintiff No.2 deposed that trustees had passed resolution in the managing committee no such resolution document was produced before this court to prove the Trust Management and existence of Trust. Such resolution copy was also not produced before the Appellate Court RA.187/1980 or before Hon'ble High Court in RSA.No.573/1985 or before Hon'ble Supreme Court in Civil Appeal No.1702/2004.
49. Ex.D.10A is certified copy of assessment extract bearing door Nos.2, 3 and 4, wherein door Nos.2 and 4 are 56 standing in the name of Maha Singh and Krishna Singh, whereas door No.3 is standing in the name of Annamma Devi Temple. No where in Ex.D.10A there is name of alleged trustees of temple.
50. The careful perusal of Ex.D.11, reveals that it is municipality assessment extract of suit property pertaining to the year-1913 to 1917 reveals that during that period door No.2 was standing in the name of Maha Singh and Krishna Singh i.e., ancestors of defendants and door no.3 was standing in the name of Annamma Devi Temple and as on that, date B schedule property was open-space.
51. Ex.D.12 reveals that it is endorsement issued by the Special Tahsildar pertaining to Muzrai Department, wherein it is clearly certified that Chikkannamma Devi Temple is not registered as Muzari temple in Government records, since it does not belongs to public trust. Therefore, in view of such document it is crystal clear that plaintiff trust is not public trust and not coming within the control of Karnataka Hindu Religious Institutions and Charitable endowments Act, 1997. Therefore, such Act is not applicable to so-called alleged Trust. But it is governed by Indian Trust Act.
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52. Under Section 23 of Karnataka Hindu Religious Charitable Endowments Act, it is the duty of state Government to register such public Trust of Charitable and Religious nature under the control of A.C. and full charge of state Government by Government Notification. Since such plaintiff Trust not coming within Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, plaintiff's alleged Trust is not registered under such Act, but it governed Public Trust Act.
53. The careful perusal of Ex.D.13 and Ex.D.14, the khata extract and tax paid receipt of door No.63 (suit property) standing in the name of defendant's ancestors Lakshman Singh during the year-2010 shows about the possession of defendants over A and B - schedule properties.
54. The careful perusal of Ex.D.15 to Ex.D.17 -
photographs reveals that as per Ex.D.15 - photograph, the defendants are making use of B - schedule property for drying their clothes in the sunlight by tying rope in the B- schedule property and Ex.D.16 - photograph reveals that defendants are making use of B - schedule open-space for storing their extra materials and waste things. Ex.D.17 - photograph reveals about 58 use of B - schedule open-space for parking their vehicles. Therefore, all these documents shows the title and possession of defendants over A and B - schedule properties. This is all about the issue of title of A and B - schedule properties.
55. In order to prove their case the plaintiffs apart from examining their witnesses as PW1 to PW7 and producing documents at Ex.P.1 to Ex.P.20, cross examined DW1. The careful perusal of cross examination of DW1 shows that the suggestions of plaintiff are denied by DW1 in cross examination. The plaintiffs have not elicited anything worth to get any admission from defendants to prove their case. On the other- hand plaintiff suggested to the DW1 in cross examination that plaintiffs temple is more than 200 years old and also suggested that at back-side of plaintiff temple there is house of defendant and by such suggestion, plaintiffs and indirectly admitted the defence of defendants. Further in the cross examination it is suggested to DW1 by plaintiff's counsel that as per Ex.P.16 and Ex.P.17, their father executed Gift Deed in favour of Gopal Singh and Balaji Singh in respect of suit property, which is going to help the defence of defendants regarding their title. DW1 deposed that 59 apart from suit property, their father gifted other properties to them which are under their enjoyment. It is elicited in the cross examination of DW1 that in O.S.10360/1993, the plaintiffs of that suit impleaded trustees of Chikkannamma Devi Temple as parties to the suit. It is suggested to DW1 in cross examination that except southern side boundary of suit property at the rest of the directions, there is property of defendants, which helps the case of defendants to prove their defense. It is further suggested in the cross examination of DW1, that in O.S.300/1966, the subject matter of the suit was Garadimane property and passage beside Garadimane and also temple property. Therefore, such suggestion helps the case of defendants to prove that subject matter of O.S.300/1966 and present suit are one and the same and when the title of the defendants is declared by the Appellate Court in R.A.287/1980 and which is confirmed by the Hon'ble Supreme Court in Civil Appeal No.2702/2004 the title of defendant over suit property stands proved. Further in the cross examination it is suggested by the plaintiffs to DW1 that in Ex.P.6 to Ex.P.8, there is mention of the name of ancestors of defendant's family, which proves the defence of defendants 60 regarding their title and possession over suit properties. In the cross examination DW1 deposed that they are also worshiping Chikkannamma Devi Temple, keeping one of the key of the temple with them and whenever there is need of worshiping temple, they open the door of the temple and lock it after completion of pooja. Therefore, it shows the possession of defendants over suit properties. It is suggested to DW1 in cross examination that towards eastern side of suit property there is old house of defendant's family and they are residing in that house. Therefore such suggestion strengthened the defence of defendants. Therefore, nothing worth is elicited in the cross examination of DW1 to destroy the case of defendants and to prove the case of plaintiffs.
56. On the other-hand, in order to disprove the case of plaintiff and to prove the defence of defendants the counsel for defendant cross examined PW1, wherein PW1 admitted in cross examination stating that the office of plaintiff - Trust is not situated within the premises of Chikkannamma Devi Temple and also admitted that there is no registered office of Chikkannamma Devi Temple Trust anywhere. Therefore, such suggestion 61 nullified the object of the so-called Trust created by Venkatasubba Rao and not complied with the conditions of Trust. Further, in the cross examination PW1 admitted that Venkatasubba Rao being author of Ex.P.1 document was working as priest of Chikkannamma Devi Temple. Therefore, such admission proves only the right of worship of temple by Venkatasubba Rao but not ownership of suit property. Further in the cross examination PW1 has admitted that Chikkannamma Devi Temple and its surrounding premises does not belongs to either ownership of Venkatasubba Rao or plaintiff - Trust as per Ex.P.1 - Trust-Deed. Therefore, this admission negatives the relief sought for by the plaintiffs. Further in the cross examination, PW1 has admitted that there is no any signature of trustees in Ex.P.1 - Trust-Deed except author of Trust, Venkatasubba Rao. Therefore, the absence of signature of trustees in Ex.P.1 implies non-acceptance of Trust document by trustees and beneficiaries. Further in the cross examination of PW1, he has admitted that in Ex.P.1 - Trust- Deed there is no mention of measurement and description of suit properties along with its boundaries. Therefore, non-mentioning of the property number and boundaries of A and B - schedule 62 properties in the Trust-Deed is fatal to the case of plaintiffs which implies that the Trust-Deed is defective one. Further in the cross examination PW1 has admitted that from 1992, plaintiff - Trust has not constituted management of committee of Trust and he does not know about the maintenance accounts of plaintiff - Trust. Therefore, this statement reveals that managing Committee is not formed and accounts of alleged Trust are not maintained which is mandatory as per provisions of Indian Trust Act and also as per true letter and spirit of Trust Deed. Further, in the cross examination PW1 has admitted that there is no building committee constituted in respect of plaintiff - temple Trust for the renovation of Temple building. It is deposed by PW1 that renovation of temple started in the year-1992 and completed in the year-1996. Therefore, the PW1 has failed to prove as to from what source of income they collected funds for construction of new temple building, if at all the plaintiffs constructed temple building in the year-1992, the cause of action for filing this suit arose in 1992 itself when the defendants opposed and obstructed the plaintiffs from constructing temple building. Therefore, the plaintiffs ought to have filed the suit for declaration and injunction 63 in the year-1992 itself when O.S.300/1966 was pending but not filed the suit within 3 years from that date of cause of action suit and as such suit is barred by Section 58 of Limitation Act.
57. Further in the cross examination, PW1 has admitted that in Ex.P.2, there is no mention of names of plaintiff - Trust or Trustees, but name of Chikkannamma Devi Temple is mentioned. If at all really plaintiff trust was in existence as on date of Ex.P.2 nothing prevented the plaintiffs to get mention name of Trust in that document. Further in the cross examination PW1 admitted that the khata of suit property is not standing in the name of Chikkannamma Devi Temple Trust. In the cross examination PW1 shown ignorance about the fact that he does not know who has appointed Venkatasubba Rao as a priest of Chikkannamma Devi Temple and he did not observe who was performing pooja of that temple in the year-1959. Therefore, his deposition in all probability proves defendant's family used to do pooja of Chikkannamma Devi Temple from time immemorial.
58. Further in the cross examination, PW1 has admitted that there is no any prakhaara outside the garbagudi of Chikkannamma Devi Temple, for doing pradakshini of deity of 64 temple around Garbagudi. Therefore, this admission goes to falsify the pleadings of plaintiff regarding existence of prakhaara around the garbagudi. Further in the cross examination PW1 has shown ignorance about the suggestion that he does not whether Garadimane situated towards northern side of Chikkannamma Devi Temple is having measurement 18ft.x 30ft. belonging to ownership of Mohan Singh. Therefore, this ignorance amounts to consent under Law in respect of title and possession of defendants over suit property by defendant's family. Further in the cross examination, PW1 has shown ignorance about the suggestion that he does not know whether Mohan Singh has leased out Garadimane property to Muniswamappa and Seetharam Singh. Therefore, such ignorance amounts to consent in the eye of Law. If at all really Mohan Singh has not leased out Garadimane - suit schedule B - property to Muniswamappa and Seetharam Singh, nothing prevented PW1 to deny such suggestion, but for the reasons best known to PW1, he has not denied but shown ignorance. Therefore, ignorance can be treated as admission on his part. Further in the cross examination PW1 has shown ignorance about the fact that A and 65 B - schedule properties are subject matter of O.S.300/1966, which went upto to Hon'ble Supreme Court and finally decided in Civil Appeal No.2702/2004 and matter decided finally holding that garadimane property belongs to ownership of defendants. PW1 has not denied such suggestions, but simply shown ignorance. Therefore adverse inference can be drawn against plaintiffs holding that the findings given by Hon'ble Supreme Court over B- schedule property proved title of defendants over suit properties.
59. Further in the cross examination PW1 has shown ignorance about the suggestions stating that as per Ex.P.15(f) photograph, the defendants are keeping their belongings and kept a stair in that place and that property belongs to defendants. All along it is case of plaintiff that the vacant space i.e., B schedule property belongs to plaintiff - Trust, but in cross examination PW1 has not denied such suggestion and shown ignorance about ownership and possession of defendants in respect of B schedule property. Therefore in all probability B schedule property belongs to defendants and knowing fully well such fact, PW1 kept quiet without denying such suggestions. Therefore, adverse inference can be drawn against PW1. Further 66 in the cross examination it is suggested to PW1 that as per Ex.P.15(g) - photograph at the eastern side of temple after compound wall of temple, there is a passage belonging to defendants and defendants are making use of such passage for ingress and egress of their house. For such suggestion also PW1 not denied but shown ignorance and such ignorance amounts to consent, stating that such passage belongs to defendants, wherein they have got easmentary right over 6 ft. passage at one side and 21 ft. passage at another side of the temple. Ex.P.15(n)
- photograph was confronted to PW1 and suggested that the temple that appears in that photograph is old temple of Chikkannamma Devi before renovation of temple building. Such document is admitted by PW1. Therefore, in view of admission of such suggestion as per Ex.P.15(m) - only the Garbagudi of temple is appearing in the photograph but not any prakhara or kitchen or hall or verandah of temple. Therefore on the basis of such admission of PW1 as per Ex.P.15(m), in all probability it proves that originally temple building was not having any prakhaara, hall, verandah or its temple kitchen or any open-space behind it and its surrounding property of temple was belonging to 67 ownership of defendants and in order to grab defendant's property plaintiffs in all probability hatched up a plan in collusion with Venkatasubba Rao to gulf suit property by creating a false document under name and style of Trust Deed.
60. Further in the cross examination it is admitted by PW1 stating that at the northern side of temple there is property of defendants and they have demolished that property and kept their belongings in that portion. Therefore, in view of such admission of above all suggestions in the cross examination, the PW1 admitted the title and possession of plaintiff over A and B Schedule properties.
61. Further in the cross examination PW1 has admitted that towards northern side of Chikkannamma Devi Temple, there is no compound wall and admitted that there is Garadimane at northern side of temple. Therefore, it proves the possession of defendants in respect of B schedule property, wherein Garadimane was situated. It is deposed by the plaintiff that in between temple and Garadimane there is no any compound wall which destroyed the pleadings of the plaintiff due to their own admission. Further in the cross examination PW1 has admitted 68 that after 1972, due to his oldage he could not visit Chikkannamma Devi Temple or its surrounding property to know what is going on in that property regarding the possession of anybody time to time. Therefore this particular statement of PW1 clearly reveals that he is not having any supervisory work over temple proprety as a Trustee or as a President or as a member of the Committee. If at all he was having such powers of Trustee or Manager of the plaintiff - temple definitely he could have inspected A and B - schedule properties and could have gathered information about existing facts. Therefore, in all probability PW1 without knowing true facts of the plaintiff's case deposing falsely to knock off the suit properties.
62. Further in the cross examination PW1 has admitted that Court Commissioner visited suit property as per order of the court in O.S.300/1966 and submitted his report as per Ex.D.2 and Ex.D.3 and admitted the sketch of Court Commissioner. PW1 has admitted that in Commissioner's report and sketch Compound wall of the temple at any direction is not shown in the report. Further he has admitted that in Commissioner's report there is no mention of any prakhara of temple or passage of 69 temple or open-space of temple for doing pradakshina of deity around temple. Further it is admitted by PW1 that in the Commissioner's report and sketch towards eastern, western and northern side passage is shown but no compound wall. Therefore, by virtue of admitting all the facts shown by Court Commissioner in his report PW1 has clearly admitted that there was no any prakhara or passage or compound wall existed around the temple and thereby given to go by his own case as per his own pleadings.
63. Further in cross examination, PW1 has admitted that after formation of alleged Trust by Venkatasubba Rao as per Ex.P.1, many of the trustees died. Further he has admitted that after death of such trustees fresh trustees were not appointed as per the intention of the founder of Trust and also as per the Law. PW1 further admitted that he has not maintained the accounts of plaintiff - Trust. Therefore all these admission for not appointing Trustees after death of dead Trustees and not keeping accounts of Trust goes to prove violation of the provisions of law and intention of the author of Trust in its true letter and spirit of Trust- Deed and violation of the provisions of Indian Trust Act. The 70 plaintiff has not produced Bank pass-book of the plaintiff - Trust in respect of Seetharam Co-operative Bank, Bengaluru. Therefore, adverse inference can be drawn against plaintiff. Further PW1 has deposed that he has not obtained any legal opinion from any advocate before filing this suit. Therefore, it shows negligence on the part of plaintiff - Trust about the protection of interest of alleged Trust.
64. Further in the cross examination, PW1 has admitted that as per Ex.P.2, building plan of temple, the measurement shown in that document regarding A - schedule property is 31 ft.- east:west and 35 ft.-north:south. Therefore, by virtue of such admission, PW1 admitted the defence of defendants regarding the measurement of temple property and given go by to his own pleadings about the alleged measurement 31 ft x 52 ft. therefore in all probability even though the measurement of A schedule property is 31 ft. x 35 ft. in order to grab defendant's property they have pleaded falsely as 31 ft. x 52 ft. to encroach to defendant's property.
65. Further in the cross examination, PW1 has deposed that in the pleading of plaint the property number of 71 Chikkannamma Devi temple is shown as No.3/1 which is old one but not mentioned new number. Therefore what is the new number of suit schedule A - property is not pleaded or deposed by PW1. Therefore for not proving the description of suit property the suit of the plaintiff is not maintainable. Therefore, in all probability the correct number of temple property may be door Nos.2, 3 and 4, but the plaintiff mentioned false No.3/1 and as Door No.65 without documentary evidence.
66. Further in the cross examination PW1 has admitted that in Ex.D.2 it is shown by the court commissioner that except the temple property there is no any open-space around the temple and surrounding properties of temple are covered with existing buildings. Therefore, by virtue of such admissions the case of the plaintiff regarding existence of open-space B- schedule property which includes compound wall of plaintiff cannot believed and accepted. PW1 has shown ignorance about the fact that Late Krishna Singh constructed temple in the suit property in the property belonging to him. For such suggestion PW1 has not denied the suggestion of the defendant but showing ignorance to such question amounts to admission of suggestion 72 of other-side. Therefore, such answer given by PW1 proves title of defendant's ancestors particularly Late Krishna Singh over temple property and surrounding properties of temple.
67. Further in the cross examination PW1 had also shown ignorance that after construction of such temple Late Krishna Singh used to worship Chikkannamma Devi deity as a priest or archaka time to time. Such suggestion is also not denied by the PW1 and ignorance of such suggestion amounts to admission in respect of the ownership and possession of A and B schedule properties by the defendant only. PW1 further admitted that he does not know who has constructed Chikkannamma Devi Temple. Further in the cross examination PW1 shown ignorance in respect of suggestion that since grandfather of defendants Sri. Mohan Singh due to his oldage was unable to perform pooja of temple he has appointed one archaka (poojari) by name B. N. Venkatasubba Rao as priest of the temple. For such suggestion also PW1 has shown ignorance. Therefore, ignorance amounts to consent on his part and on the basis of such answer given by PW1 it can be held that in all probability grandfather of defendant Mohan Singh after constructing temple in his property used to 73 perform pooja as archaka or priest and due to oldage when he was unable to perform pooja of temple, he appointed Venkatasubba Rao as priest of the temple.
68. In the cross examination PW1 has shown ignorance about the suggestion of the defendant that the plaintiff temple property is not standing in the name of Chikkannamma Devi Temple in the revenue records and none of the trustees of alleged plaintiff Trust are paying land revenue of A and B - schedule properties. Such ignorance of suggestion can be presumed as consent on his part and since plaintiff has not produced any documents to prove that suit schedule A and B - properties are standing in the name of Chikkannamma Devi Temple or in the name of its Trustee of plaintiff - Trust, in all probability it can be held that the A and B - schedule properties belonging to ownership and possession of defendant's family and that is why plaintiff's are unable to produce any title deeds of suit property or revenue documents to prove their title and possession over suit properties.
69. It is suggested to PW1 in cross examination that suit schedule B - Property is standing in the name of father of 74 defendant and defendant's father paid tax of that property till 2022. For such suggestion also, PW1 has shown ignorance and not denied such fact. Therefore, ignorance amounts to consent. The careful perusal of Ex.D.10A, Ex.D.11 and Ex.D.13 proves that suit properties are standing in the name of defendant's family. The careful perusal of Ex.D.14 reveals that defendant's family members paid the tax of suit property. Therefore, all these documents proves the title and possession of defendants over suit property in respect of A and B - schedule properties, under Section 90 of Indian Evidence Act, since such documents are more than 30 years old documents. It is admitted by PW1 in cross-examination that as per Ex.D.12 - document, Chikkannamma Devi Temple-property is not registered as a public Trust under Karnataka Hindu Religious Charitable and endowments Act, as temple coming within Muzrai Department of Government. Therefore, it proves the suit temple is private temple of defendant's family.
70. Further in the cross-examination, PW1 has admitted that there is no any registered office of plaintiff temple - Trust for its administration. Therefore, without having office of plaintiff - 75 Trust how the alleged plaintiff - Trust is making administration of Trust activities is not clarified. Therefore, in all the probability by drawing adverse inference it can be held that alleged plaintiff - Trust is not in existence. Further in the cross-examination PW1 has deposed that he is President of plaintiff Trust, but he is not elected as President through election of the members of the Trust. As per the recitals of Ex.P.1 - Trust-Deed, it is the desire of founder of Trust to elect the office-bearers of Trust once in 2 years by way of election,but without such election how PW1 became alleged President of Trust is not proved and even if he is elected by way of common consent of all the trustees of temple, atleast PW1 should have produce the resolution passed by the members of the Trust for having unanimously elected him as President. Such document is also not forthcoming. Therefore, the deposition of PW1 clearly shows that alleged breach of Trust not carrying on desire or the intention of the founder of Trust as per the conditions mentioned in the Trust-Deed.
71. Further in the cross-examination, the PW1 has shown ignorance about the alleged cause of action in respect of prayer of injunction of this suit, though the plaintiff pleaded in his 76 plaint, stating that defendants came to suit property in the month of October - 2010 and interfered with their possession in the cross-examination PW1 has deposed that he does not remember when defendant's came to suit property and when interfered with possession over suit property. Further PW1 deposed that he has not lodged any complaint to police in respect of alleged interference and trespass of defendants over suit property. Therefore adverse inference can be drawn against the plaintiff's case holding that in all probability defendant's never interfered with the possession of plaintiff over the suit property. If at all really the defendants could have attempted to interfere with the possession of plaintiffs over suit property then definitely PW1 could have stated to that effect in his cross-examination, but not deposing in that regard about the date and time of alleged interference to his possession and non filing of police complaint for such alleged interference leads to probablize the fact that at no point of time, defendants interfered with the so-called alleged possession of plaintiff over suit property. Therefore, plaintiffs failed to prove the cause of action for this suit. In fact cause of action of this suit arose in the year-1992-1993 when the plaintiff of 77 O.S.300/1966 opposed the defendant's of that suit while constructing temple building in the suit property and if at all cause of action arose in the year-1992 itself as per Article 64 and 65 of Limitation Act, suit should have been filed by the plaintiff temple Trustees within 12 years from that date i.e., on or before 2004, but suit is filed in the year -2010 and as such suit is barred by Limitation.
72. Further in the cross-examination PW1 shows ignorance in respect of the suggestion of the defendant that priest of temple by name Venkatasubba Rao had no right, power or interest to create Trust-Deed in respect of Chikkannamma Devi Temple. Such suggestion is not denied by the PW1 but simply shown unawareness about the rights and powers of Venkatasubba Rao to create Trust. Therefore, the ignorance can be treated as admission on his part and it can be held has B. N. Venkatasubba Rao had no right to create Trust-Deed of plaintiff - temple. It is case of plaintiff that the temple property is in their possession and he appointed one priest (archaka) to perform pooja of plaintiff temple, but PW1 is not aware about the name of such priest. When PW1 being so-called alleged President of 78 Chikkannamma Devi Temple Trust Committee and also one of the Trustee of temple, when he does not know the name of the present priest of the plaintiff - temple adverse inference can be drawn against him holding that in all probability no any archaka or priest is appointed by the plaintiffs to perform pooja of plaintiff - temple and only for the sake of this suit PW1 has deposed falsehood before this Court. Even to prove the payment of remuneration to be paid to the so-called alleged priest of temple the PW1 has not produced accounts books or any bank statement. Therefore, such deposition of PW1 is far away from truth which is not trustworthy.
73. Further, in the cross-examination PW1 has deposed that trustee No.5 - B. S. Balachandran (plaintiff No.5) has given instructions to his advocate to prepare his examination in chief of PW1 and accordingly his advocate has drafted the same. Further he has deposed that he has given instructions to his advocate only in respect of Garadimane property but not A schedule property. Therefore when the PW1 has not given instructions to his advocate to prepare his examination in chief affidavit then such affidavit has no evidenciary value in the eye of 79 Law, which is nothing but hear-say evidence of 3 rd party. All along PW1 deposed that he does not know about the previous history of suit property and suit filed by defendant's ancestor by name - Maha Singh against B. N. Venkatasubba Rao, but in the cross- examination he deposed that he was aware about the suit filed by the defendant's family Lakshman Singh against Venkatasubba Rao in respect of A and B - Schedule properties. Therefore, having knowledge of filing of such suit O.S.300/1966 by Lakshman Singh against Venkatasubba Rao, the plaintiff No.5 being son of Venkatasubba Rao as his LR and the so-called trustees being the representatives of the founder of the Trust, the final verdict given by the Hon'ble Apex Court in Civil Appeal No.2702/2004 upholding the judgment and decree of RA.287/1980 is binding on plaintiffs of this present suit as res- judicata, wherein the suit property of O.S.300/1966 and present suit property are one and the same and the parties to previous suit and present suit are also one and the same and the points(issues) involved for adjudication of matter in the present suit and previous suit are also one and the same. Therefore, this present suit is hit by Section 11 of CPC - Res-judicata. Simply 80 because the trustees of present suit were not defendants in O.S.300/1966 the plaintiffs of this present suit cannot plead that suit is not hit by Section 11 of CPC, but as discussed supra when the trustees of plaintiff - Trust are claiming title under the founder of the Trust (author of Trust), Venkatasubba Rao and litigating under title of Venkatasubbarao, any findings given by Competent Court against Venkatasubba Rao are directly binding on the so- called alleged trustees of plaintiff Trust and as such it is hit by Section 11 of CPC.
74. Further in the cross-examination, PW1 has deposed that out of 12 Trustees, at present only 5 trustees are surviving by name himself, one Balachandran, G. S. Chikkashankarappa, K. N. Vasanthakumar and V. Muniraju. Therefore as per the desire and intention of founder of Trust and also as per the provisions of Indian Trust Act, when it is mandate of Law and true spirit and condition of Trust-Deed that after death of any Trustees, the other surviving trustees shall elect new trustees in place of deceased trustees. Such condition of Trust-Deed is not complied with by plaintiffs. Therefore, they have committed breach of Trust and it can presume that there is no existence of Trust-Deed of plaintiff 81 Trust as on date of filing this suit. Therefore, when the Trust is not reconstituted as per the clause of the Trust-Deed, its true spirit is not carried out by plaintiffs. Therefore , such admission of PW1 in not reconstituting the Trust after death of trustees proves that they have terminated the Trust-Deed.
75. Further in the cross-examination, PW1 has clearly deposed that he has not produced any document to prove that plaintiff Trust has given authorization to him to depose in this suit as one of the Trustee and also he has deposed that he cannot say whether the plaintiff - Trust is in existence or not at present after death of several trustees. Therefore, when the PW1 himself is in doubt whether the plaintiff Trust is in existence or not, he has given go by to his case and his deposition shaken the foundation of the plaintiff's case for filing suit without proper authorization. Therefore, plaintiff's suit is not maintainable.
76. Further in cross-examination, PW1 has admitted that the Ex.P.3 document does not pertain to Chikkannamma Devi Temple, but it pertains to some other temple by name Annamma Devi Temple situated at Nagarthapet, but not Chikkannamma Devi Temple situated at Sunkalpet, Bengaluru. Therefore, 82 plaintiffs in order to mislead the court and to get order from this court by hook or crook intentionally produced false documents Ex.P.3 knowing fully well that it does not belongs to plaintiff - temple. Therefore, serious note can be taken against dishonest act done by the plaintiffs to mislead the court. Therefore, it can be held that the intention of the plaintiffs is to grab the suit property by hook or crook and plaintiffs have not approached court with clean hands.
77. Further in cross-examination, PW1 has admitted that Ex.P.6 document was obtained on 7.3.1994 in respect of temple property, but not in respect of plaintiff - Trust property, therefore when Ex.P.6 document standing in the name of Chikkannamma Devi Temple, but not in the name of plaintiff Trust, it is not going to help the case of plaintiff stating that plaintiff Trust is in existence and having power or right over the plaintiff Trust as a Trustees under Ex.P.1. Further PW1 has admitted that Ex.P.7 document i.e., so-called alleged building license of temple was obtained by one Nanjundaiah on 02.04.1930 i.,e 64 years prior to Ex.P.6 document. Therefore, so-called alleged construction of plaintiff temple in the year-1994 on the basis of Ex.P.7 which is 67 83 years old document is not lawful one and plaintiffs cannot claim that they have constructed temple building as per Ex.P.6, which is not permitted by fresh license as per the Law. Therefore, viewed from any angle the case of plaintiff is not clear but it is confusing and pleadings of plaintiff are full of ambiguities and not with certainty and the plaintiff has tried to misguide the court to maximum extent to get the relief in this suit by hook or crook.
78. Further in the cross examination, PW1 has clearly admitted that neither Nanjundaiah nor Venkatasubba Rao as per Ex.P.6 never constructed or renovated temple building till 1958. Therefore, as per the records produced by the parties to the suit which goes to prove that only in the year-1994 plaintiffs temple building was constructed without any fresh building license or approved plan as per the Law and not on basis of Ex.P.6 and Ex.P.7. Therefore, plaintiffs mislead the court stating that they have constructed the temple building as per Ex.P.6 and Ex.P.7.
79. It is pertinent to note here that PW1 has admitted in cross-examination stating that in Ex.P.6 - plan there is no mention of Garadimane or kitchen or verandah or any other structure other than temple building. Therefore, in view of such 84 admission of PW1 it is crystal clear that Garadimane and alleged verandah and kitchen and open-space are not belonging to A schedule property pertaining to plaintiff - temple. Therefore, in all probability Venkatasubba Rao has created the so-called alleged Trust-Deed of plaintiff Trust in the year-1992 to put an hurdle in the pending suit of O.S.300/1966 when it was at the stage of hearing R.A.287/1980. PW1 has further admitted in his cross examination stating that approximately after 5-6 years after date of establishment of plaintiff - Trust Venkatasubba Rao died. It is further admitted by him that after death of Venkatasubba Rao, plaintiff - Trust was not reconstituted. Therefore, the intention of the author of Trust is not carried forward and thereby they have put an end to the Trust-Deed. Even though the PW1 deposed that each one of the trustees had invested Rs.500/- as fund for the Trust no any piece of document is produced by way of accounts of Trust to prove such fact. Therefore, non-production of such document calls for drawing adverse inference against plaintiffs.
80. Further in the cross examination, PW1 has shown his ignorance that he does not know the defendants are making use 85 of open-space B schedule property for their personal use. Therefore, when plaintiff had not denied such suggestion and he does not know about the use of B schedule property by defendants by drawing adverse inference against the plaintiffs it can be held that in all probability defendants are in possession of suit schedule B-property. Further in the cross-examination PW1 had shown ignorance about the suggestion that all the issues pertaining to present suit are finally decided by the Hon'ble Supreme Court in judgment of Civil Appeal No.2702/2004, for which PW1 had shown ignorance, but not denied such fact. Therefore, ignorance amounts to consent and it can be held that suit is hit by Section 11 of CPC. Further in cross-examination, PW1 had admitted that he was party in O.S.10360/1993 and in that suit they have filed their WS as per Ex.P.5. Such deposition goes to prove that the plaintiffs of this suit are fully aware about the previous suits and other appeals between the parties pending before Hon'ble Supreme Court and Hon'ble High Court.
81. Plaintiff examined one more witness - PW2 by name D. S. Devaraju son of D. C. Shankarnarayana, who was alleged Manager of plaintiff temple Trust and reiterated the averments of 86 plaint in his examination in-chief affidavit which needs no repetition. This witness PW2 is cross examined by the defendant and in the cross-examination he has clearly admitted that he is not residing at Cubbonpet area of Bengaluru as shown in the cause title of his examination in-chief affidavit, but residing at Shanthinagar, Bengaluru. Therefore, there is variation between pleading and proof, wherein PW2 tried to suppress the material fact and given wrong address in examination in-chief affidavit. PW2 has shown ignorance as to who has formed plaintiff - Trust and when it was established and further deposed that he has not signed Trust-Deed as one of the Trustee to the Ex.P.1 - Trust- Deed and he does not know any particulars of Ex.P.1 - Trust- Deed. He has further deposed that he came to know about Ex.P.1 just 4 days back from date of his evidence from his Lawyer.
82. Further, PW2 deposed in cross examination showing ignorance that he does not know who has donated how much amount of money to the plaintiff - Trust other-than Rs.500/- donated by Late Venkatasubba Rao. Further, PW2 in cross examination deposed that he has not signed over Ex.P.1 and his 87 father also not signed on such Trust-Deed - Ex.P.1. Further, PW2 has deposed that he does not know when plaintiff-temple was constructed and also he does not know whether grandfather of defendant late Maha Singh constructed plaintiff temple and he himself used to do pooja of that temple as priest. Also he does not know one late Maha Singh due to his oldage who was unable to perform pooja of temple apppointed B. N. Venkatasubba Rao as priest of Chikkannamma Devi Temple. Therefore, all these depositions of PW2 reveals about lack of knowledge of PW2 about plaintiff - Trust and temple and he does not known anything about suit property and family of defendants and it appears that the pleadings of plaint are non other-than cooked up story and so-called alleged trustees names are artificially created to knock off suit property.
83. Further PW2 in cross examination shown ignorance about the measurement of temple property and boundaries of temple property. Such measurement and boundaries not tallying with schedule of plaint. It is suggested to him in cross examination that the temple property measures 31ft-east-west:
and 35 ft.-north:south, which is not denied by him, but simply 88 shown ignorance. Therefore, ignorance amounts to consent and in all probability the correct measurement of plaintiff temple is 31ft.-east:west and 35 ft.-north:south, but not 31 x 52 ft as claimed by the plaintiffs.
84. PW2 further deposed that he does not know when plaintiff-temple was renovated, but deposed that he became trustee of plaintiff - temple about 15 years back from date of deposition. Such 15 years back means it comes to 2006. If at all PW2 has become the trustee of temple in the year-2006, he has not produced any document to prove his trusteeship as to how his name was entered as trustee in the Trust documents maintained in the Government public Trust office in the year-2006. Therefore, non production of such documents regarding registration of plaintiff - Trust goes to falsify the deposition of PW2. Further PW2 has deposed that he does not whether the plaintiff - Trust is having its own property or not. Therefore, when PW2 does not know about property of plaintiff Trust, the examination in-chief affidavit filed by him stating that suit property belongs to plaintiff Trust has no any validity under Law. 89
85. It is admitted by PW2 in the cross examination that as per Ex.P.6 - Building Plan the plaintiffs by encroaching the Municipality area of about 17 ft. towards southern side plaintiffs shown Trust property is measuring 52 ft. north-south. It is further admitted by him that municipality demolished such portion of building encroached in municipality area. Therefore, on the basis of such admission of PW2, it is crystal clear that actual measurement of Chikkannamma Devi temple is 31 ft. x 35 ft., but not 31 ft. x 52 ft. as claimed by the plaintiffs.
86. Further PW2 has clearly admitted in the cross examination that in Ex.P.6 documents there is no any mention of existence of prakhara around the existing temple building of plaintiff. It is further admitted by PW2 that Ex.P.6 - Sketch is issued by the Municipality authority in respect of Chikkannamma Devi Temple. Therefore the claim of plaintiffs that there is prakara around the temple of Chikkannamma Devi deity is falsified by this statement of PW2. The PW2 further deposed that he does not know whether Ex.P.3 document does not pertain to plaintiff - temple but it belongs to Annamma Devi Temple situated at Nagarthapet measuring 135 sq.mts situated at Sy.No.3754. 90 Therefore, the defendant by getting such admission from the mouth of PW2 proved that Ex.P.3 document does not belong to A- schedule property but it totally belongs to a strange property in respect of document which is produced before this court, to misguide the court regarding its measurement. Therefore, adverse inference can be drawn against the plaintiff's case.
87. Further in the cross examination, PW2 has deposed that he has not produced any document to prove that Garadimane property i.e., B schedule property is part and parcel of Chikkannamma Devi Temple. Further he has deposed that he does not know who has constructed Garadimane and when. Therefore, when the plaintiffs have no document to prove that B schedule property belongs to plaintiff - Trust it cannot be at any stretch of imagination believed that B-schedule property belongs to plaintiff - Trust.
88. It is pertinent to note here that PW2 in cross examination has clearly admitted the suggestion of defendant stating that defendant's grandfather Late Maha Singh established Garadimane in B-schedule property. Further PW2 has admitted that due to oldage of defendant's grandfather Maha Singh being 91 unable to look after management of Garadimane, authorized Seetharam Singh and Muniswamappa to look after Garadimane as Manager and Employees. Therefore, by virtue of such admission of PW2, defendant proved his defence stating that Garadimane i.e., B schedule property belongs to their ownership and possession of defendants family and alleged Seetharam Singh and Muniswamappa are only the employees of Maha Singh who worked as Managers of B - Schedule property. PW2 has shown ignorance as to whether B-schedule property was let-out by Maha Singh to tenants. It is admitted by PW2 that in the year- 1966, defendant's grandfather Maha Singh filed O.S.300/1966 against Seetharam Singh and Muniswamappa for relief of declaration and injunction, but he does not know whether the subject matter of that suit and subject matter of O.S.10360/1993 are one and the same which is decided by Hon'ble High Court and Hon'ble Supreme Court in Civil Appeal 2702/2004 by upholding and confirming judgment of R.A.287/1980. Therefore, ignorance amounts to consent and it can be held that this witness is aware about the previous proceedings pending before various courts and ultimately finalized by the Hon'ble Supreme Court. 92 Therefore, such Hon'ble Supreme court judgment is binding on plaintiffs, which cannot be altered or reviewed or set asided.
89. It is deposed by PW2 that he is not elected as trustee of plaintiff temple, but simply nominated by some people as trustee. He does not know who has nominated him as trustee. Therefore, when there is no any lawful document in respect of appointing him as trustee in accordance with law, nomination of PW2 as trustee by strangers does not prove the case of plaintiffs and does not carryout intention of the legislature as per the Indian Trust Act. Further, PW2 went one step ahead and deposed that it is true to say that Chikkannamma Devi Temple property ie., A and B - schedule properties are not belonging to ownership of Venkatasubba Rao or any other trustees of plaintiff - Trust. Therefore by virtue of such admission , PW2 has clearly admitted the title of defendants over A and B-schedule properties and given go by to his plea taken by him in his examination in chief affidavit and also given go by to plaintiff's case. Therefore, by eliciting such admission from the mouth of PW2, defendants proved their title and possession over B - schedule suit property 93 and also proved that Venkatasubba Rao had no right of ownership or possession over A and B - schedule properties.
90. Further PW2 has shown ignorance about the fact that plaintiff - Trust has not paid tax of suit schedule A -property in municipality office and further deposed that he does not know khata number of Chikkannamma Devi Trust and khata number of Chikkannamma Devi Temple situated behind plaintiff temple. It is further admitted by him that Chikkannamma Devi Temple is having its door No.3/1, whereas Garadimane is having its door no.63 which are totally different properties and also admitted that B schedule property is standing in the name of defendant's father Lakshman Singh and he has paid tax of B - schedule property. Therefore, by virtue of such admission defendants proved that A - schedule property is different from B-schedule property and Garadimane property is B - schedule property and is not part and parcel of A - schedule property, which are having different door numbers. Therefore, plaintiffs cannot claim B - schedule property as part and parcel of A - schedule property.
91. PW2 has admitted in cross examination stating that as per Ex.D.15 - photograph, defendants are making use of B - 94 schedule property for their own use for washing clothes, keeping house-hold articles and drying their clothes. Therefore, in view of such deposition of PW2, defendants proved that B-schedule property is in possession of defendants. Further, PW2 has admitted stating that in between western side of Chikkannamma Devi Temple and house of Honnappa there is a gate and from that gate and passage, defendants used to go to Garadimane situated on the northern side of the temple. Therefore, by getting such admission from the mouth of PW2, defendants proved existence of passage at western side of Chikkannamma Devi Temple having a gate for ingress and egress of their property. Further PW2 has shown ignorance about the suggestion of defendants that the defendants have locked that gate and kept key of that lock with them and they are making use of that passage for approaching their property and also PW2 shown ignorance about the suggestion that the defendants are parking their vehicles in the open-space abutting to gate. PW2 has not denied such fact. Therefore, ignorance amounts to consent. Hence, it can held that defendants are making use of B-schedule property for their self purpose.
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92. It is pertinent to note here that PW2 does not know who has filed this suit against whom. Even though the plaintiffs filed this suit against the defendants, PW2 being the plaintiff witness strangely deposes that defendants have filed this suit against plaintiff claiming ownership over temple property. Therefore, it shows that PW2 is not having any knowledge about the suit property and also the particulars of the suit filed by the plaintiffs and further PW2 has clearly admitted that he does not know anything about this suit. Therefore, it shows lack knowledge of PW2 about this suit. PW2 further went one step ahead and deposed that he does not know anything about his examination in-chief affidavit filed by him. Therefore, in view of such admissions his examination in-chief has no any legal sanctity under law and his affidavit cannot be considered in support of the plaintiff's case.
93. Further in the cross examination PW2 has admitted that plaintiff No.5 by name - Balachandran is one of the trustee of plaintiff - Trust who is its auditor and as per request of Balachandran he is deposing falsely in this suit as one of the witness and further deposed that except the say of Balachandran 96 regarding suit property he does not know anything about this suit personally. Therefore, this deposition goes to prove that plaintiff No.5 - Mr. Balachandran is the person behind the screen who is playing game by leaving the other plaintiffs on screen and controlling the plaintiffs by sitting behind the screen, to get wrongful gain and to knock off suit property. Plaintiff No.5 has not stepped into witness box and not deposed before this court about the true facts of this case and not subjected himself to the cross examination of other-side, with full knowledge that if he come before court, the truth will come out and entire false story of plaintiff will be leaked out. Therefore, such statement of PW2 proves that entire case of plaintiff is falsehood.
94. Further in order to prove their case, plaintiff examined PW3 by name M. Ravi, who is one of the devotee of the temple, who has deposed stating that he knows all the facts of the case and his examination in-chief affidavit, which is sum and substances of plaint averments. In the cross examination of PW3, he has deposed that he does not know what is suit property and what is the measurement and boundaries of suit property. Further he has deposed that he does not know when 97 Chikkannamma Devi Temple was constructed. It is suggested to him that Chikkannamma Devi Temple was constructed by the grandfather of defendants late Maha Singh and he used to perform pooja of that temple, for which PW3 has shown his ignorance. Therefore, even though PW3 has deposed in his examination in chief stating that he knows everything about suit property and about administration of suit property - Trust, in his cross examination, he has shown his ignorance about suit property. Therefore, adverse inference can be drawn about such witness.
95. Further in the cross examination, PW3 deposed that does not know full contents of affidavit of his examination in chief. Even though this witness has deposed that, when he was child he studied in the School belonging to Chikkannamma Devi Patashala which was being run from I Standard to 7 th Standard, he has not given particulars of that school and he has not produced any documents to prove existence of that school or certificate for having studied in that School. Therefore, it appears that in all probability PW3 might have deposed falsehood as per the say of the plaintiffs and his evidence is not credit-worthy. 98 Further in the cross examination, PW3 has shown ignorance as to who established Chikkannamma Devi Temple Trust and who was President of that Trust. At one time, PW3 deposed that Devaraju was President of Chikkannamma Devi Temple Trust, but PW1 deposed that himself was President of Trust. Therefore, there is contradiction between evidence of PW1 and PW3 regarding the post of Presidentship of plaintiff- Trust and both these witnesses not produced any documents to prove who is President of plaintiff
- Trust. Even though PW3 deposed that one Muniraju was Secretary of the Trust and Balachandran is Treasurer of Trust which is corroborated by PW1, such simple corroboration is not sufficient to prove such fact without production of documentary evidence. Therefore, PW3 admitted the possession and title of defendants over A and B - schedule properties in the cross examination.
96. Further in the cross examination, PW3 has deposed that he has not gone through the sketch of the plan of construction of temple building and he does not know what is the meaning of Prakhara and Parikaara. He has further deposed that in the year-1977 only Chikkannamma Devi deity temple was 99 existing but not existed any other deity temple, like Ganesha temple, Utsavamurthy temple, etc., therefore from the evidence of this witness it goes to prove the defence of defendants that originally only Chikkannamma Devi Temple was existed in A schedule property, but recently in the year-1994 it appears that plaintiffs got constructed other small portions for Ganesha Temple and Utsava Murthy temple. Therefore, such subsequent construction is nothing but illegal construction without obtaining fresh permission from competent authority.
97. It is suggested to PW3 in the cross examination that measurement of Chikkannamma Devi Temple east:west - 31 ft.; north:south-35ft., which is not denied by PW3 but shown ignorance. Therefore, ignorance amounts to consent. Further PW3 shown ignorance about the question posed to him as to who has demolished Garadimane property and when, for which PW3 shown ignorance. Further PW3 shown ignorance about suggestion that Garadimane was originally constructed by great- grandfather of defendants Late Maha Singh and also suggested that except Garadimane situated in B - schedule property there was no school or patashala near Gardimane for which PW3 not 100 denied such suggestion but simply shown ignorance stating that he does not know about it. Therefore, ignorance amounts to consent. Therefore, on the basis of such answer given by PW3, it can be held that in all probability there was no Patashala or School never established by the side of Garadimane and for the sake of this suit, PW3 might have deposed falsehood. This witness shown ignorance about the fact that in the year-1966 great-grandfather of defendants filed suit against plaintiff - temple for declaration and injunction in respect of A and B - schedule property. But he admitted the fact that though initially suit was dismissed, it was decreed in favour of plaintiff of that suit and defendant's grandfather Maha Singh preferred Appeal RA.287/1980 and he does not know whether such judgment of first appellate court was confirmed by the Hon'ble Supreme Court of India.
98. Further in the cross examination, PW3 has admitted some facts about possession of defendants over B - schedule property. It is suggested to PW3 in cross examination that defendants are parking their vehicles in B - schedule property by constructing a gate to the passage situated at western side of the 101 temple and locked that gate. Further it is suggested to PW3 that defendants are making use of that portion of temple property that is B-schedule property for storing their waste materials and further it is suggested to him that defendants are making use of Garadimane property for drying their clothes and making enjoyment of that property along with passage. All these suggestions are admitted by PW3. Therefore, by virtue of such suggestions and admission given by PW3 defendants proved their possession over B schedule property as on date of suit.
99. Further in the cross examination, he has admitted the suggestion of defendant stating that he saw Garadimane from his childhood, but there was no open-space. Further he has admitted that during his childhood when he use to play in the premises of the temple at that time there was passage at both- sides of temple. It is further admitted by PW3 that at the eastern side and northern side of temple there is property of defendants and they constructed building. Therefore, by virtue such suggestion, PW3 admitted title and possession of defendant over B- schedule property and passage situated at the eastern and 102 western side of temple situation of property of defendants at east, west and northern side of temple.
100. Even though PW3 has deposed in his examination in
- chief affidavit stating that defendants interfered with the possession of plaintiffs over suit property, in the cross examination he has given go by to his examination in - chief statement and deposed that he does not know what he has stated in his examination in chief and he also does not know who has abused him and in what manner on the alleged date of cause of action. He has further deposed that he does not remember to whom he requested not to abuse and also he has deposed that he does not know whether defendants have given any trouble to himself and plaintiffs. Therefore, by virtue of such statement this witness - PW3 given go by to the cause of action of the suit in respect of alleged interference of defendants in respect of suit property. Therefore, it appears that the alleged cause of action is imaginary one and created for the purpose of this suit.
101. Further in the cross examination,PW3 has deposed that himself and plaintiff No.5 - Mr. Balachandran are friends and plaintiff No.5 called him to come to court to depose in this suit on 103 his behalf as a witness and as per his statement he deposed in this court. Therefore, this witness is nothing but hear-say witness and also tutored witness as per the instigation of Balachandran.
102. It is admitted by PW3 in cross examination that at no point of time any trustees of plaintiff - temple never donated or invested any cash amount for the maintenance of trust property or temple property. Therefore, such statement goes to prove that the so-called alleged plaintiff Trust is only nominal and not carrying out the actual object of Trust in the true letter and spirit of the intention of the author of Trust and they have not kept the records of plaintiff - Trust to prove the same. Further in the cross examination, PW3 has shown ignorance of the suggestion that in the ancient days property is situated around Chikkannamma Devi Temple were belonging to family of ancestors of defendants and that is why name of Grandfather of defendants by name Krishna Singh is kept for that road by the Municipality as Krishna Singh Galli. Such suggestion is not denied by PW3, therefore ignorance amounts to consent and on the basis of such admission defendants proved title and possession over suit property.
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103. In addition to that plaintiffs examined one more witness by name - Narasimhamurthy as PW4 in support of their case, who is one of the alleged devotee of plaintiff - temple and his examination in-chief affidavit is nothing but replica of PW3's examination in-chief. Therefore, it needs no repetition. In the cross examination PW4 has deposed that the distance between his house and plaintiff - temple is 100 mts. to 150 mts. He has further deposed that from his childhood he is visiting Chikkannamma Devi Temple. Further he has admitted the suggestion of defendants that there was passage on the eastern side of temple for ingress and egress to the defendant's house and further he has admitted the suggestion of defendants that he is looking passage situated at the side of A schedule property from his childhood as per Ex.D.2(a) to reach Garadimane. He has further admitted that there was no any prakaara or open- space around the Chikkannamma Devi Temple for doing Pradakshina of deity by the devotees. Therefore, by virtue of such admissions elicited by defendants from the mouth of PW4 they have proved title and possession of defendants over suit properties and also proved that there was no any prakaara or 105 open-space around the Garbagudi temple. This witness has deposed that he does not know the contents of his affidavit of his examination in chief and he has not sweared such affidavit before notary public. Therefore in view of such deposition his examination in chief affidavit has no evidenciary value in the eye of law and it requires to be eschewed.
104. So far as cause of action for suit regarding injunction and interference to the possession of plaintiffs is concerned some questions are posed to this witness, during cross examination asking him, who has interfered with the possession of plaintiff over the suit property and when. This witness has deposed that he does not know about it . Even though in the examination in chief this witness PW4 has deposed that the father of defendants Lakshman Singh given trouble to plaintiffs in enjoying suit property, he has given go by to such version in his cross examination and deposed that he does not know who is Lakshman Singh and further went one step ahead and deposed that at no point of time, Lakshman Singh given any trouble to himself and other plaintiffs when himself and plaintiffs visited suit property. Therefore, by virtue of such statement the examination 106 in-chief affidavit of PW4 is falsified so far as cause of action of this suit is concerned and it can be held that such cause of action is illusory and imaginary and cooked up story for the sake of this suit. Further in the cross examination of PW4, he has deposed that he does not know anything about the suit and simply he signed to his affidavit as per request of his advocate and he has not given any instructions to his advocate to draft his affidavit of examination in chief. Therefore, by virtue of such statement, the examination in-chief of PW4 deserves to be discarded which is not prepared as per his instructions, which has no any evidencicary value.
105. In addition to that to strengthen the case of the plaintiff they examined one more witness in support of their case by name Sri. N. Narayana as PW5. He is one of the alleged devotee of plaintiff - temple. His examination - in-chief affidavit is nothing but cyclo-style copy of examination in- chief affidavit of PW3 and PW4. In the cross examination, PW5 deposed that he is residing near Chikkannamma Devi Temple from last 5 years. He has further deposed that he visited Chikkannamma Devi Temple for the first time when he was 12 years old boy. He has 107 further deposed that he is aged 50 years old as on date of his cross examination. Even though he has deposed as such further he has shown ignorance stating that he does not know who used to do pooja of Chikkannamma Devi Temple in the year-1984, even though he has born in the year-1972 as per his deposition. Therefore, when he was aged 12-13 years old boy having knowledge of the society and public in general he does not know about the suit property and its temple in the year-1984.
106. He has admitted the suggestion of defendant in cross examination that in the year-1984 Chikkannamma Devi Temple was only existing but not other temple of other deities by side of Chikkannamma Devi Temple. He has further admitted that in the year-1984, the entrance to the temple only was existing but not any prakaara and open-space for pradakshina of deity of temple. Therefore, by virtue of such deposition he has falsified the case of plaintiff stating that there was no prakaara or open-space around the temple in the year-1984 or subsequent date.
107. Even though this witness - PW5 deposed that there was School or Patashala beside the Garadimane, he has not produced any document like school certificate to that effect and 108 even he does not know who was teacher in that school. Therefore, non-production of evidence in that regard and without pleading of plaintiff in that regard the improvement made by PW5 in his evidence and PW4 in his evidence regarding school in B suit property cannot be considered and accepted. When there is no foundation for the case of plaintiff and no pleading regarding existence of alleged Patashala in the plaintiff temple the oral evidence in that regard cannot be accepted without any basis.
108. Further in the cross examination PW5 has deposed that he does not know whether towards eastern side of temple there was one passage to go to house of defendants. Also he does not know towards northern side of temple there was one more passage to reach Garadimane and thereafter there is house of defendants. Such suggestion is not denied by the PW5, but simply shown ignorance and unawareness about it. Therefore, as per principle of Law ignorance amounts to consent regarding the defence of defendants. Therefore, in all probability such statement proves the defence of defendants stating that there was a passage situated at eastern side of temple for the use and enjoyment of defendants and there was one more passage 109 towards western and northern side of temple for use of defendant's property which proves title and possession of defendant's over B - schedule property including such passage.
109. Further in the cross examination, he has deposed that he has not seen ancestor of defendant - Lakshman Singh. Even, he does not know whether the surrounding property of temple including Garadimane ( B - schedule property ) belonging to great-grandfather of defendants by name - Maha Singh. PW5 has not denied such suggestion of defendant, but shown unawareness about it. Therefore, as per principle of Law ignorance amounts to consent and in all probability it proves that the surrounding properties of temple including Garadimane belongs to great-grandfather of defendants. Even though PW5 has deposed in his affidavit of examination in-chief regarding alleged interference of defendant's father Lakshman Singh, in his cross examination he has given contradictory statement stating that he does not know Lakshman Singh. Further in the beginning of cross examination PW5 deposed that, he does not know contents of affidavit of his examination in-chief and he has not gone through his affidavit and only at the request of his advocate 110 he signed his examination in-chief affidavit. Therefore, without knowing the contents of his examination in-chief the deposition of PW5 cannot be considered since it has no legal sanctity at all and it requires to be discarded.
110. Further in the cross examination, PW5 has deposed that he has not produced any document to prove Garadimane was situated behind temple about 44 years back from the date of filing this suit as per his examination in-chief affidavit. Further he has deposed that he has not donated any cash amount or property to temple - Trust. Therefore, he is not having knowledge about the plaintiff - Trust property. He has further deposed that the Treasurer of plaintiff -Trust temple by name Balachandran who is plaintiff No.5 of this suit has given instructions to the advocate to prepare his examination in-chief affidavit of PW5. Therefore, PW5 has simply signed on the affidavit without knowing its contents. Therefore, it is none other than hear-say evidence, which cannot be believed and accepted.
111. PW5 has deposed regarding the cause of action for the suit in respect of injunction relief and also regarding interference about the possession of plaintiffs over suit property in 111 his examination in-chief affidavit but in cross examination he has given contradictory statement deposing that he cannot say who abused him and when while he was alleged to have worshiping Chikkannamma Devi Temple and further deposed that he has not seen Lakshman Singh and further deposed that he has not lodged any police complaint against Lakshman Singh who alleged to have abused him as per his examination in-chief affidavit and also he does not know whether trustees of plaintiff Trust have lodged any complaint to police in that regard. Therefore, such contradictory statement proves that in all the probability father of defendant - Lakshman Singh never interfered with so-called alleged possession of plaintiffs over suit property and never abused plaintiffs. Therefore there was no question of lodging complaint to police and it appears for the sake of this suit plaintiffs got concocted cock and bull story anyhow to show the cause of action for the purpose of this suit.
112. Further in the cross examination, PW5 deposed that he does not know who has constructed Chikkannamma Devi Temple and when and also shown unawareness about the fact, as to who was priest of Chikkannamma Devi Temple in the year- 112 1984. Further he has deposed that he does not know who are trustees of Chikkannamma Devi Temple Trust and which community of people are worshiping that temple and who are managing Chikkannamma Devi Temple Trust. He has deposed that except plaintiff No.5 Balachandran, he does not know the name of any other trustees and office-bearers of alleged plaintiff - Temple Trust. Therefore, in all the probability it appears that this witness is tuitored by Balachandran and as per the say of Mr. Balachandran this witness is deposing as hear-say witness. Therefore, his evidence cannot be accepted which is not trustworthy, since he does not know anything about suit property, personally.
113. Further in the cross examination, PW5 shown ignorance to the suggestion of defendants that the entire temple- property including Garadimane and other surrounding properties were originally belonging to the family of defendants headed by great-grandfather of defendants Maha Singh. This suggestion is not denied by PW5 and ignorance amounts to consent as per the Law. The further suggestion of defendants in the cross examination, is admitted by PW5 stating that the name of 113 ancestor of defendant - Krishna Singh is fixed to the locality of that road by the BBMP as Krishna Singh Galli. Therefore, all these facts probabalize the fact that the suit schedule A and B properties belonging to ownership and possession of defendant's family. This witness further shows ignorance about the fact that founder of Chikkannamma Devi Temple Maha Singh and his son Mohan Singh used to perform pooja of Chikkannamma Devi Temple. Therefore, ignorance amounts to consent of the proof of defence of defendants.
114. The plaintiff examined one more witness by name G. Mohan as PW6, who is alleged to be one of the devotee of Chikkannamma Devi Temple. In his examination in-chief he has reiterated the averments of affidavit of examination in-chief of PW3 to PW5. Hence it needs no repetition. In the cross examination PW6 deposed that he does not know total extent of Garadimane and plaintiff - temple and also the so-called alleged Shishuvihara (Kindergarten School), though he has stated in examination in-chief affidavit that behind the temple, the Garadimane and Shishuvihara are situated. Therefore, unawareness about such fact is nothing but contradiction of his 114 statement deposed in his chief affidavit. On the other-hand PW6 has admitted the suggestion of defendant regarding the measurement of the Chikkannamma Devi Temple property measuring east:west-31 ft. and north:south-35 ft. Therefore, on the basis of such evidence of PW6 regarding the measurement of the plaintiff - temple property the pleading of plaintiffs that it measures that 31 ft. x 52 ft. stands falsified. This witness admitted that towards northern side of temple, there was Garadimane which is B-schedule property and also admitted that towards eastern side of temple there is a passage to go to house of defendants and Garadimane and also admitted that towards western side of temple, there is one more passage to go to Garadimane and thereafter house of Honnappa and defendants. Therefore, this deposition falsify the case of plaintiff regarding the boundaries of suit property mentioned in the schedule of plaint and proves the defence of defendants regarding the boundaries of suit property.
115. Further in the cross examination, PW6 has deposed that one Rangswamy i.e., PW1 has constituted plaintiff - Trust about 20 years ago which is one of the improvement and strange 115 statement given by PW6 even though pleading of plaintiff shows that one Late Venkatasubba Rao was author alleged Trust of plaintiff temple. Therefore, such deposition on the face of the record shows not only it is false statement but shows the frivolous nature of the suit and false evidence given by the witness. This witness PW6 admitted that there is no any document to prove that B schedule property i.e., Garadimane belongs to ownership of plaintiff - Trust. Therefore, plaintiffs fails to prove title over B schedule property including its possession.
116. Some questions are asked to PW6 regarding cause of action of this suit and alleged interference to the alleged possession of plaintiffs over suit property regarding relief of injunction as stated by PW6 in his examination in-chief affidavit. This witness has strangely and without any responsibility deposed that father of defendants Lakshman Singh abused him about 5 years ago when he had been to Chikkannamma Devi Temple for worshiping and told him that not to enter the temple since it belongs to him. It is pertinent to note here that Lakshman Singh died about 15 years back some where in the year-2004 and the deposition of PW6 that Lakshman Singh interfered with 116 suit property about 5 years cannot be believed and accepted. A dead person cannot come to suit property to prevent the PW6 from entering the plaintiff - temple. Therefore, such statement is nothing but false statement given by PW6 to create imaginary and illusory cause of action in respect of this suit. Therefore, such deposition of PW6 cannot be considered. Such statement was given by PW6 to show that cause of action arose about 5 years back, but in fact the cause of action arose in the year-1993 when the Lakshman Singh family opposed the plaintiffs trustees not to construct temple building in the suit property. Therefore this present suit ought to be have filed within 3 years from that cause of action from the year-1993 i.e., on or before 1996 but the suit is filed in the year-2010, which is barred by limitation and not maintainable.
117. Further during cross examination when it is suggested to PW6 that Lakshman Singh died about 15 years back and not alive as on date when he alleged to have entered the plaintiff temple as per his deposition, this witness PW6 admitted such fact. Therefore, when the PW6 is fully aware that Lakshman Singh was not alive as on date of alleged cause of 117 action about 5 years back, his statement regarding alleged interference to the possession of plaintiff over A-schedule property is falsified. Therefore, evidence of PW6 is not trustworthy to believe.
117. Lastly, the plaintiffs examined one more witness by name - Revanasiddaraju Yogesh as PW7, who is one of the alleged devotee of plaintiff temple, who has filed his examination in-chief affidavit in cyclo-style manner as that of examination in- chief of PW3 to PW6, by reiterating the same contents. Hence it needs no repetition. In the cross examination this witness has deposed that in the year-1980, he was doing business at Sunkalpet cross, therefore he knows the facts of this case. He has deposed that for the first he visited Chikkannamma Devi Temple in the year-1975 and it was as it is which is visible in Ex.D.18 - photograph I.e, only garbagudi but not prakaara or open-space around it or compound wall. Therefore by virtue of such deposition he has given go by to the case of plaintiffs regarding existence of prakaara and open-space and compound wall around plaintiff - temple and falsified the pleadings of plaintiff. PW7 in his cross examination admitted that towards 118 eastern-side of Chikkannamma Devi Temple there was passage to reach house of defendants and towards northern side of temple there was Garadimane. Therefore, by virtue of such admission PW7 strengthened the defence of defendants as per the pleadings of Written Statement of defendants. Further PW7 deposed that Ex.D.2(a) - document which is so-called alleged sketch and plan of A schedule property. Further in the cross examination, PW7 admitted that in the year-1975 except Garadimane there was no any building or structure situated around the temple and also admitted that he does not know who has established Chikkannamma Devi Temple and Chikkannamma Devi Temple Trust. Therefore, as per his evidence and admission when no any building or structure was situated around the Garbagudi of Chikkannamma Devi Temple except Garadimane, the latest building of temple constructed by plaintiffs some where in the year-1994 without permission of BBMP appears to be illegal construction done highhandedly by encroaching in the property of defendants. This witness is unaware of the suggestion of fact that ancestor of defendants - Maha Singh constructed Chikkannamma Devi Temple, but he has admitted 119 that such property was gifted by ancestor of defendant - Maha Singh for sake of construction of temple. Therefore, it is proved by his evidence that Maha Singh was owner of temple property in the olden days and in order to disprove that plaintiffs had acquired the title over A suit property from Maha Singh, no any documents produced by the plaintiffs. Therefore, plaintiffs failed to prove title and possession over A and B - schedule properties.
118. This witness - PW7 deposed that he does not know the extent and boundaries of A and B schedule properties. He has deposed the so-called alleged name of the trustees of plaintiff
-temple and deposed that one Devaraju is President of plaintiff - Trust and Balachandran is Secretary of plaintiff - Trust. This statement is contradictory to pleadings of plaintiff and deposition of PW1. According to PW1, he himself is President of plaintiff - Trust and one Balachandran is Treasurer, but this witness PW7 deposed that one Devaraju is President and Balachandran is Secretary of plaintiff - Trust. Even for sake of arguments, the deposition of PW1 taken as true statement in order to prove his statement PW1 has not produced any documentary evidence to prove that Devaraj is President of plaintiff - Trust and 120 Balachandran is Treasurer of Trust. Therefore, there is much variation between the pleading and proof of plaintiff's case, which is hit by Order 6 Rule 10 of CPC. Further PW7 has admitted in cross examination that he has not produced any document to prove that B schedule property - Garadimane belongs to ownership of plaintiff - temple from 1994. Therefore, plaintiffs failed to prove title and possession over B - schedule property.
119. So far as cause of action for this suit is concerned when the question is posed to PW7 in cross examination, he has deposed that he does not know the exact date, month and year when Lakshman Singh abused him when he alleged to have visited Chikkannamma Devi Temple and prevented from entering into the temple and he also deposed that he has not lodged any police complaint. Therefore, not deposing the exact date, month and year of such alleged interference to the possession of plaintiff by Late Lakshman Singh, the plaintiff's witness failed to prove the cause of action for this suit, which appears to be an imaginary cause of action.
120. PW7 has further admitted in cross examination that as per Ex.D.15 to Ex.D.17 - photographs, defendants are making 121 use of passage of Garadimane property and open-space of Garadimane for keeping their house-hold articles and drying their clothes in the sunlight and also admitted that as per Ex.D.17, defendants stored waste materials of their house by side of temple towards passage of house wherein previously Garadimane was situated and fixed two gates at eastern and western - side of temple for ingress and egress of their house and also for parking their vehicles. Therefore, such admission of PW7 proves the possession of defendants over B schedule property as on date of suit. Therefore, viewed from any angle plaintiffs failed to prove their possession and title over A and B - schedule properties as on date of suit. Therefore, when defendants are not in possession of suit property there is no question of alleged interference to so called alleged possession. Therefore, plaintiffs are not entitled to get any reliefs. But on the other-hand defendants proved that suit properties are in their possession and belongs to their ownership.
121. Even though the plaintiffs have examined number of witnesses - PW1 to PW7, the quantity of evidence is not material and important, but the quality of evidence of witnesses is very 122 important to be considered for the proof of their case. It does not mean that by examining many number of witnesses by the plaintiffs their case automatically stands proved unless quality of evidence when they have admitted defence of defendants in their cross examination and given go by to the case of plaintiffs the case of plaintiffs failed. Even if one solitary witness is examined and if he has proved case of plaintiffs by producing documentary evidence, it is acceptable under law without giving any admissions in cross examination, such evidence automatically gains weightage in the eye of law for the proof of their case, but not otherwise. Therefore, there is no quality in the evidence of PW1 to PW7 to prove their case and quantity cannot be considered.
122. On the basis of the oral and documentary evidence produced by the parties to the suit and also on the basis of the legal analysis of the principles of Law in connection with the facts of case on record, the defendants succeeded eliciting admissions from plaintiff - witnesses in proving their defence.
123. The careful perusal of Ex.P.16 and Ex.P.17 - registered Gift Deeds dated 25.03.2010 clearly reveals that by 123 virtue of registered sale deed of the year-1833 and another registered sale deed of the year-1904 having registration No.424, book No.1, Volume No.4, page Nos.408 to 413 and another sale deed dated 22.8.1911 having its registration No.505, book No.1, volume No.460, page Nos.420 to 427 and another registered Sale Deed dated 28.10.1912 having registration No.1489, book No.1, Volume No.95, page Nos.338 to 341 and another sale deed dated 22.8.1921, the defendant's ancestors purchased suit property and surrounding properties of plaintiff - temple and these documents being public documents which are registered documents in the office of Sub-Registrar of more than 30 years old proves title of defendants over A and B - schedule properties under Section 90 of Indian Evidence Act. Apart from that, careful perusal of Ex.D.10A and Ex.D.14 - revenue documents reveals about the fact that ever-since from date of purchase of suit properties from defendant's family members were / or in possession and enjoyment of suit properties. In addition to that Ex.D.15 to Ex.D.17 - photographs proves the possession of defendants over B - schedule property.
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124. It is pertinent to note here that the property in question was formerly described as door No.4 in revenue records and later on its door number was changed as No.2 in CMC office and boundaries are specifically mentioned in the revenue records, which shows that at three directions of the four pieces of the properties purchased by the defendant's ancestors except southern side, there is property of defendants. Therefore, as per the principle of law the boundaries prevails over the measurements even though the measurements are not correctly mentioned. It is pertinent to note here that in the revenue documents and sketch produced by the parties 6ft. passage is clearly visible which is evident by the report of the Court Commissioner. In the Sketch of Court Commissioner, southern boundary of Chikkannamma Devi Temple is the passage approaching property of defendants in sale deed of defendant's ancestors executed in favour of Krishna Singh and Maha Singh the same boundaries are mentioned as shown in the schedule of plaint of O.S.300/1966. Therefore, all these documents reveals that the southern boundary of the property of defendants is Chikkannamma Devi Temple and 6ft passage beside that temple. 125
125. The careful perusal of Ex.P.1, the so-called alleged Trust-Deed and Ex.P.18 - Partition Deed of the family of B. N. Venkatasubba Rao reveals that deceased Venkatasubba Rao had only the right of worship of Chikkannamma Devi Temple, but not owner of suit property and he has no documents of title over the suit properties. Such partition deed - Ex.P.18 was executed in between the family members of B. N. Venkatasubba Rao in respect of their joint family properties and Ex.P.18 is not executed between defendant's family and Venkatasubba Rao's family. Therefore, such partition deed is not binding on the defendants who are not parties to Ex.P.18 since such document is not executed by defendants. It is worth to note here that B. N. Venkatasubba Rao had only right of worship of Chikkannamma Devi Temple as a priest or poojari, but not title over suit property. In Ex.P.18, Partition Deed, it is mentioned that the property allotted to B. N. Venkatasubba Rao is a house and vacant site pertaining to their joint family, but not pertaining to suit property. If really there was existing vacant space abutting to Chikkannamma Devi Temple then certainly the parties to the Partition Deed would not have omitted to mention about such 126 facts in Ex.P.18, but not mentioned the same. Therefore, in all probability an inference can be drawn from such recitals that there is no any vacant space abutting to the property allotted to the share of Venkatasubba Rao, but it is the property of Mohan Singh allotted to his share. Therefore, it is not open for the plaintiffs to plead and argue that suit schedule A - property belongs to their ownership, much less the vacant space abutting to the temple which is situated at the back-side of temple which is known as Garadimane, wherein the defendants used to enjoy such property, but family of Venkatasubba Rao never enjoyed such property. Therefore, Venkatasubba Rao had no any title over suit property. Hence, defendants proved that B schedule property belongs to their ownership and possession.
126. The plaintiffs denied about the Municipality door No.4 or 2 or 63 belonging to defendants in respect of suit property, but the revenue documents marked at Ex.D.10A and Ex.D.11 i.e., Assessment Extract issued by the Municipality reveals that door No.2 is standing in the name of Maha Singh and door No.3 is standing in the name of Chikkannamma Devi Temple and door No.4 standing in the name of Krishna Singh from the year-1913 127 till 1928 for a period of 15 years and also as on date of filing the suit. Therefore, these revenue documents Ex.D.10A and Ex.D.11 are having presumptive value of possession of defendants under Section 112 and 113 of Karnataka Land Revenue Act. On the other-hand plaintiffs have not produced any khata extract or revenue document to prove their possession over the suit properties.
127. It is pertinent to note here that the defendants by producing Ex.D.10A and Ex.D.11 proved door Nos.2 and 4 are standing in their name as their family properties which corroborates the defence of defendants. On the other-hand the plaintiffs have not produced any documents to prove their title over A - schedule property and B - schedule property. Since the defendants by virtue of producing Ex.D.16 and Ex.D.17 proved their title over suit properties along with possession. Therefore, the balance of convenience and probative value of proof of their defence lies in favour of defendants.
128. It is pertinent to note here that when Late B. N. Venkatasubba Rao had no right, title or interest over A and B- schedule properties he has no right to enter into any agreement 128 with on late Mr. Appajappa and one Ramaiah and also with one Muniswamappa in respect of B schedule property and such documents being unregistered documents which are not executed by defendant's family members are not binding on the defendant's family.
129. It is worth to mention here that in R.A.287/1980 the competent Court of Law while appreciating the evidence of Lakshman Singh in that suit decreed the suit O.S.300/1966, by setting aside the judgment and decree passed by trial court and this document being certified copy of Judgment produced by the defendant at Ex.D.4 and Decree at Ex.D.5, it is having presumptive value under Section 57 of Indian Evidence Act, wherein the certified copy of Judgment of competent court of law can be believed and taken judicial note of such fact noted in judicial documents can be taken which is signed and sealed by proper authority of court. Ex.D.4 and Ex.D.5 are upheld and confirmed by the Hon'ble Supreme Court of India in Civil Appeal No.2702/2004 and such verdict given by Hon'ble Supreme Court of India is final one and which cannot be set asided or reversed by this court.
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130. The careful perusal of the judgment of RA.287/1980 reveals that Ex.P.157 produced in O.S.300/1966 was executed by defendant No.2 of that suit - Khalif Seetharam Singh and his sons in favour of Mohan Singh and Lakshman Singh, wherein it reveals that Mohan Singh's family established (started) Gardimane in B schedule property and defendant's family only used to run such Garadimane from 1930 itself. Therefore, this document proves the ownership and possession of defendants over B schedule property. Further the recitals of that documents reveals that defendant No.2 in O.S.300/1966 Khalif Seetharam Singh was acting only as Manager of Garadimane having measurement 16ft. x 30ft. situated at Northern side of Chikkannamma Devi Temple and this document proves that Khalif Seetharam Singh was employee of the family of Mohan Singh. Therefore, this document proves that Mohan Singh's family started running Garadimane (B-schedule property) and the construction of temporary shed if any put by Khalif Seetharam Singh or Muniswamappa over B schedule property was only with permissive possession of true owner of B - schedule property, but not adverse possession. Therefore, the plaintiffs cannot claim 130 title over B schedule property under adverse possession only on the ground that they constructed temporary shed as a Manager of Garadimane.
131. It is pertinent to note here that the license and building plan of alleged temple-property produced by the plaintiffs reveals that B. V. Venkatasubba Rao was shown as a Secretary of temple but not owner of the temple. Though such permission of the building of temple was sanctioned in the year-1936 and plan was sanctioned in the year-1943 and license was issued on 25.6.1943. The temple building was constructed during the year- 1994 to 1996. As on that date of year-1943 temple-building was not constructed, but it appears that it was constructed in the year- 1994 without getting fresh building license and approved building plan. Therefore, these facts reveals that no any construction of temple building was raised by B. N. Venkatasubba Roa in the year-1936 or 1943. On the other-hand such construction appears to have been done in the year-1992 to1996. Therefore, what can be gathered from such facts of documents marked at Ex.P.7 to 10 that the license and plan were not issued for proposed construction of the building of temple in the year-1994. 131
132. The careful perusal of Ex.P.11 - rent agreement reveals that one Appajappa executed such Rent Agreement in favour of Venkatasubba Rao for monthly rent of Rs.4.8 paise and to vacate the suit property situated behind temple whenever directed by Venkatasubba Rao. Similarly careful perusal of Ex.P.12 - Rent Agreement executed by one Ramaiah in the year- 1939 in favour of Venkatasubba Rao also reveals that vacant space situated behind temple was agreed to be let-out on lease in favour of Ramaiah for limited period without any structure over it. Therefore, such document proves that the property left vacant inspite of issuing license and building plan by the concerned authority. These documents disclosed that the land situated behind the temple was vacant space and Muniswamappa or Seetharam Singh undertaken temporary construction of shed in that property as per the oral permission given by its owner by name Mohan Singh and Seetharam Singh similarly Seetharam Singh has under taken to restore the possession of that property to Mohan Singh's family whenever asked for and it appears that as per the request of Mohan Singh after expiry of lease period of 11 months Seetharam Singh handed over possession to Mohan 132 Singh. Therefore such document reveals that either Seetharam Singh or Muniswamappa not constructed any permanent structure or building over B - schedule property as per building plan and license marked at Ex.P.7 to Ex.P.10. Therefore such documents reveals that neither B. N. Venkatasubba Rao nor his father Nanjundappa constructed any building in B schedule property. Since Muniswamappa and Seetharam Singh undertaken to construct temporary shed in Garadimane property only with permissive possession of Mohan Singh. Therefore, suit property cannot be deemed to be property of either Seetharam Singh or Muniswamappa. Therefore, neither Seetharam Singh nor Muniswamappa nor B. N. Venkatasubba Rao had any title over the vacant space situated behind Chikkannamma Devi Temple. Therefore, plaintiffs failed to prove B. N. Venkatasubba Rao was owner of vacant space situated behind Chikkannamma Devi Temple on northern side and on the other-hand the agreement executed by Seetharam Singh in favour of Mohan Singh in the year - 1962 reveals about title of Mohan Singh over such vacant space area of suit property.
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133. In order to appreciate the defence of defendants,it is necessary to gather the extracts of judgment of RA.287/1980 under Section 57 of Indian Evidence Act, which is a court document upheld by Hon'ble Supreme Court of India. In the cross examination of DW1 pertaining to O.S.300/1966, he has stated that he used to visit Garadimane once in 8 days or 15 days to see his friends and later on DW1 changed his version in O.S.300/1966 and stated that since from long time he used to visit Garadimane daily morning and evening but again changed his version and stated that he never visited Garadimane and never witnessed any wrestling match that took place in Garadimane and he corroborated the case of plaintiff in O.S.300/1966 stating that Mohan Singh's family used to tether cattle in Garadimane property prior to construction of temporary shed, which probablize the case of defendants ie., Mohan Singh's family holding that Lakshman Singh's family was having title and possession over suit property, wherein Mohan Singh's family used to run Garadimane from 1942 itself.
134. It is pertinent to note here that Seetharam Singh became member of Garadimane Committee as per O.S.300/1966 134 in the year-1962 onwards and he had no knowledge about it prior to 1962. DW2 in O.S.300/1966 stated that there was no any open-space for having pradakshina around the deity of Garbagudi temple of Chikkannamma Devi and deposed that he does not know any transaction between defendant No.1 and Muniswamappa and Seetharam Singh prior to 1962, since Balarama Vyayama Shala started in the year-1962 only. Therefore, the fact about getting of electric connection and water connection to B schedule property spoken by the witness of defendant in O.S.300/1966 is not proved by any documentary evidence, but in all probability such electric wire might have been drawn by the defendants of O.S.300/1966 from temple after 1962, but not got any independent electric installation. Therefore, all these facts goes to disprove the case of plaintiff regarding alleged possession and title of plaintiff over suit properties.
135. So far as right of way of Mohan Singh's family over suit property i.e., disputed passage marked in schedule of O.S.300/1966 i.e., AEXY portion is concerned, the court Commissioner's report proves that there was vacant space situated towards eastern side of temple to approach defendant's 135 property from time immemorial. The defendants used to enjoy such passage for their ingress and egress of their property from temple side towards Garadimane and from that by passing through passage of 6ft. situated at western side of temple, defendants used to approach their house. Further such Court Commissioner's report reveals that there was a fence situated at western side of temple having a short opening in the fence through which one can go to house of Mohan Singh situated behind the temple, wherein Garadimane situated. Further Court Commissioner's report reveals that there was a door at the northern wall of Garadimane which probabalize the fact that the defendants used to approach their house through that 6 ft. passage situated abutting to the temple at the western side of the temple. Therefore, it shows that defendants used to enjoy that passage and acquired title of easement over the strip of passage of 6ft, situated by the side of temple to approach their property. Further the court Commissioner's report shows that there was a door situated at Northern wall of Garadimane and such wall was constructed at about 7-8 years ago prior to the date of inspection of Court Commissioner. Further such Court Commissioner report 136 shows that by removing fence a brick wall was constructed in that area. Therefore, on the basis of principles of preponderance of probabilities, on the basis of oral and documentary evidence placed on record, it is proved that Lakshman Singh's family was using B - schedule property as its owner and possessor and also making use of 6ft. Passage situated at the western side of temple to go to his house. The plaintiff have not produced any document of title to prove their ownership over 6ft. passage of B-schedule property - Garadimane or temple - A schedule property which goes to negative pleading and claim of the plaintiffs.
136. The careful perusal of Court Commissioner report shows that disputed property of O.S.300/1966 i.e., XY wall is having height of 5 ft. and it is not neatly plastered and shabbily arranged the bricks in hurry-burry (not systematically) and was of recent origin of about 2-3 months just before visiting the sport by the Court Commissioner. Therefore, this fact proves that disputed wall XY - wall was constructed recently just before visit of Court Commissioner in the year-1967 in order to block entry of Lakshman Singh's family for their ingress and egress to approach their house.
137
137. It is pertinent to note here that , the plaintiff tried to convince the court that XY-wall - passage had an approach within temple itself, but such argument cannot be accepted and believed because the court Commissioner report reveals that XY - wall is not continued with original wall of temple. The court Commissioner's report reveals that there is another passage situated at the right side of the door of the temple which must be at the eastern side of temple measuring 20 ft., wherein flower plants are grown and attached to it there is a door facing to southern side. This fact indicates that the passage was used by defendants family Lakshman Singh's family to go to their house from time immemorial. Therefore, these facts in all probability proves that AEXY - passage was meant for ingress and egress of the defendant - Lakshman Singh's family to approach their house through Chikkannamma Devi Temple. Therefore, the disputed property in O.S.300/1966 i.e., ABCD portion in all probability belongs to Lakshman Singh's family, wherein the Court Commissioner's report shows AEXY portion continued with ABCD property situated at Chikkannamma Devi Temple and wall XY situated at southern end across the passage is of recent origin 138 which was constructed at the time of filing O.S.300/1966 by the defendants of that suit, somewhere in the year-1967. Therefore, the plaintiffs of this present suit failed to prove their title, possession over A - schedule property and alleged interference to their possession over B - schedule property.
138. Now coming to additional issue No.1, the plaintiffs claimed their title over suit schedule property by way of adverse possession. So far as the point of claim of title of plaintiffs over suit properties by way of adverse possession in respect of additional issue No.1 is concerned, though the plaintiffs pleaded in their plaint that they have perfected their title over the suit property by way of adverse possession, the careful perusal of the prayer column does not reveal about seeking prayer in respect of declaration of their title by way of adverse possession. It is pertinent to note here that as per Section 34 of Specific Relief Act, the plaintiffs can claim relief of declaration of their title over suit property including any other ancillary reliefs like possession, injunction or adverse possession etc., But if the plaintiff only seeks declaration and omits to seek ancillary relief or alternative relief he would not be entitled to claim such relief later on and it 139 amounts to waiver of his right or abandonment of his right under Law to claim such relief. Therefore ,as per Section 34 of Specific Relief Act, when the plaintiff of this suit have not claimed relief of declaration of title by adverse possession, it is presumed that they have abandoned their right and as such plaintiffs are not entitled to get relief of declaration of title by adverse possession. Simply pleading regarding the adverse possession is not sufficient, unless specific prayer sought in prayer column.
139. Though the plaintiffs claimed the title over suit property by way of adverse possession and though additional issue No.1 is framed on the basis of pleading of the parties without relief of claim of title by way of adverse possession, in the prayer column such relief cannot be granted. The careful perusal of the prayer column of the plaint of this present suit does not reveal about the prayer of grant of declaratory relief on the basis of adverse possession. Therefore, as per Section 34 of Specific Relief Act, when the plaintiff claimed any legal character (main relief) and omitted other legal character (ancillary relief) of adverse possession, he is debarred from claiming such reliefs subsequently which amounts to abandonment of his rights to 140 claim adverse possession. Therefore, the plaintiff is not entitled to get relief of adverse possession relief in this suit.
140. It is pertinent to note here that in AIR 2002 Calcutta page No.144 (Division Bench) in case of Union Bank of India v/s Vittal Bhai, it is held that in order to maintain suit for declaration under Section 34 of Specific relief act, the plaintiff must file suit which is properly maintainable on the basis of proper cause of action and omitting to claim one of the cause of action, suit is liable to be dismissed in respect of that omitted portion of the relief.
141. Further, Hon'ble Supreme Court of India held in AIR 2001 Supreme Court page No.623 in case of Manoj Rao v/s P. Krishna that the possessory right of the plaintiff over the suit property on the basis of material placed on record must be just and legal and it does not lead any interference or divergence.
142. Further, it is held in AIR 2003 Supreme Court page NO.4548 that in suit for recovery of possession based on title it is for the plaintiff to prove his title and to satisfy the court that he is in law entitled to dispossess the defendants from possession over suit property and for the restoration of possession to him. 141 However, there is an essential distinction between burden of proof and onus of proof. The burden of proof lies upon a person who has to prove the fact and which never shifts upon other parties, but onus of proof shifts upon defendants. But such shifting of onus is continuous process in evaluation of evidence. In a suit for declaration, injunction and possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendants, it is for the defendant to discharge the onus and in the absence of burden the plaintiff shall be held to have been discharged his burden of proof.
143. Therefore, on the basis of this citation it is clear that unless and until the plaintiff proves his case, he is not entitle for any relief. In this present suit, plaintiffs failed to discharge their initial burden of proof of title and possession and adverse possession over suit property and alleged interference to their possession by the defendants. Therefore, plaintiffs suit is not maintainable.
144. In case of Ramesh Chand V/s Anil reported in AIR 2003 Supreme Court page No.2508 it is held by Hon'ble Supreme 142 Court of India that the person in possession may not have title to the property, yet if he has been inducted into possession by rightful owner and he is in peaceful and settled possession of suit property, he is entitled to protect his possession until dispossesed by true owner under the due process of law. This citation is applicable only when plaintiffs admits title of defendant as true owner, but plaintiffs not admits title of defendants in this suit.
145. Therefore, on the basis of such dictum of Hon'ble Supreme Court of India when the plaintiff claims his title over suit property by way of adverse possession first of all he has to admit the ownership of other-side over suit property and then he has to claim ownership by adverse possession.
146. It is reported in ILR 1992 KAR page No.894 and also AIR 1987 Supreme Court page No.2930 and held that one has to prove ingredients of adverse possession stating that he is in continuous uninterrupted possession over suit property hostile to the interest of true owner from time immemorial or more than 12 years continuously and also to prove that the true owner has not taken any legal action to evict the trespasser (plaintiff) from suit property under the due process of law. If such 143 ingredients of adverse possession are proved then only the plaintiff is entitled for the relief of adverse possession, but not otherwise. In this suit, the cause of action for plaintiffs-Temple trustees arose in the year-1992 when Ex.P.1 Trust Deed alleged to have constituted and when defendants - Lakshman Singh's family opposed construction of temple building in A schedule property. Therefore, within 12 years from date of that cause of action from 1992 the plaintiff - Trust ought to have been filed the suit claiming adverse possession over suit property on the basis of the so-called rent agreements produced by them as per Ex.P.11 to Ex.P.13 of the year-1939, 1941 and 1948. Therefore, the plaintiffs ought have filed the suit on or before 2005, but the suit is filed by the plaintiffs in the year-2010 after expiry of more than 12 years. Hence, suit for claim of ownership on basis of adverse possession is not maintainable which is hit by Article 63 and 64 of Limitation Act.
147. Further, in case of Haraknath v/s M. Meena Devi reported in AIR 2017 Patna page No.44, it is held that in suit for declaration of title, the burden of proof is always the plaintiff to establish the case and he cannot take weakness of defendant's 144 case and the weakness if any set up by defendants would not be a ground for grant of relief to the plaintiff. Therefore, as per the argument of the plaintiff stating in this present suit that the defendant has not setup his defence in his written statement claiming title on basis of any documentary evidence cannot be accepted and such argument of plaintiff cannot be appreciated when plaintiff himself failed to prove his case regarding title and possession over suit property. Therefore, the plaintiff has to stand or fall on his own leg, but he cannot take the weakness of defendants. Hence on the basis of such observations the plaintiff has failed to prove additional issue No.1. Hence, plaintiff are not entitled for relief of declaration of ownership by way of adverse possession over A and B schedule properties.
148. The counsel for plaintiff during the course of his arguments, has argued that defendant has not taken any specific defence regarding title over suit property other-than the findings given by appellate court. For this argument, the defendants counsel made counter argument stating that the defendant has pleaded the fact of adjudication of the matter by Hon'ble High Court of Karnataka and Hon'ble Supreme Court of India by 145 decreeing the O.S.300/1966 and setting aside judgment of trial court which is upheld by the Hon'ble Supreme Court of India. Therefore, it is the stand of the defendant that already final verdict is given by Hon'ble Supreme Court of India regarding his ownership over B schedule property. Therefore he need not take any new defence other-than what held by Hon'ble Supreme Court of India. Hence, argument of defendant can be accepted who has based his defence only on the judgment of Hon'ble Supreme Court of India which cannot be altered or reversed or set asided. Therefore, it is not open for the plaintiff to argue that defendant has not taken any specific contention. Hence, as per citation reported in AIR 2017 Patna page No.44, burden of proof of plaintiff's case is always on him who approached court for remedy and he has to stand or fall on his own leg and he cannot take weakness of defendant's case.
149. The counsel for plaintiff argued that the defendant has not proceeded with O.S.10360/1993, wherein he was plaintiff in that suit and there by defendant abandoned his right and waived his right and thereby plaintiff perfected his title over suit property by adverse possession. For such arguments, advocate 146 for defendant canvassed his counter argument stating that plaintiffs of this suit who are defendants in O.S.10360/1990 not filed counter claim seeking relief of ownership by way of adverse possession and such issue of adverse possession is not framed in that suit. Therefore, it does not amount to res-judicata and does not amounts to abandonment of right of Lakshman Singh. Therefore as rightly argued by defendant when defendant of O.S.300/1966, not sough counter-claim of adverse possession such issue does not arise in that suit and without the adjudication of such issue by court, it does not amount to waiver of right or the abandonment of right by the defendant of this suit. It is further argued by the defendant that O.S.10360/1993 was not contested by the trustees of plaintiff - Trust. If at all for sake of argument adverse possession is claimed i.e., only by the Lrs of Muniswamappa and Seetharama Singh who were in permissive possession of suit property and not by the plaintiffs. It is further argued by defendants of this suit that B-schedule property was also subject matter of O.S.300/1966 and in that suit Court Commissioner was appointed for local inspection of actual condition of suit property in the year-1967 and when the court 147 Commissioner had given report narrating the facts of the case and actual condition of suit property in O.S.300/1966 that was sufficient for case of plaintiff in O.S.300/1966. So he did not proceeded with O.S.10360/1993. The defendant in O.S.300/1966 not disputed measurement of A - schedule property towards east:west measuring 31 ft., but only disputed north:south direction measurement as 52 ft. The argument of the plaintiff in such fashion regarding the abandonment of alleged right over suit property cannot be accepted, because the plaintiff in O.S.10360/1993 who is defendant in this present suit has filed that suit for declaration of his title over B - schedule property and to challenge the so-called alleged Trust-Deed of plaintiff in respect of A - schedule property and for relief of possession of suit schedule property. Since the subject matter of O.S.300/1966 and O.S.10360/1993 are one and the same and since already O.S.300/1966 almost reached finality by virtue of judgment of First Appellate Court in decreeing that suit of plaintiff in O.S.300/1966, the plaintiff of O.S.10360/1993 did not pressed that suit. Therefore, the argument of plaintiff regarding abandonment of rights of defendant cannot be accepted because 148 when the competent Court of Law has already decided the rights of defendant - Lakshman Singh over suit property in O.S.300/1966 and also in R.A.187/1980 which is confirmed in Civil Appeal No.2702/2004 by Hon'ble Supreme Court of India, there was no need for plaintiff of O.S.10360/1993 to proceed with that suit. If at all he could have proceeded it could have hit by Section 10 of CPC (Res-subjudice).
150. It is pertinent to note here that when O.S.10360/1993 was pending for trial the appellate court in O.S.300/1966 appointed Court Commissioner and when Court Commissioner submitted his report giving clear picture of suit property, such report covered clarity in respect of all issues involved in O.S.10360/1993. Therefore, plaintiff in that suit did not press O.S.10360/1993. When the defendant in O.S.10360/1993 not sought the relief of declaration of his title by way of adverse possession over suit schedule A property and not filed his counter-claim in that suit, naturally no issues arises regarding adverse possession and such issue was framed in O.S.10360/1993 and in absence of such issues no question of adjudicating the rights of parties on adverse possession arises. 149 Therefore, not pressing O.S.10360/1993 by the plaintiff of that suit does not harm the rights of present defendants and it does not amount to abandonment of the legal rights of present defendants. On the other-hand, if at all the plaintiff of this present suit could have filed separate suit seeking relief of declaration of their title over suit property by way of adverse possession and in that suit the present defendants if did not contest that suit, then in such situation it amounts to abandonment of rights of defendant in not taking proper defence of ownership and possession over suit property, but not otherwise. Hence, the argument of plaintiff in that regard cannot be accepted.
151. So also, it is pertinent to note here that when the civil suits are being filed one after the other and pending before several competent courts between the present parties to the suit and their predecessors in title regarding suit properties from 1996 till 2004 upto Hon'ble Supreme Court of India, it amounts to continuous exercise of rights of defendants - Lakshman Singh over suit properties without any break or gap. Therefore, there is no any scope for the plaintiffs of this suit to claim adverse possession hostile to the interest of defendants of this suit, who 150 are true owners of suit property and when the true owners have not kept quite for 12 years continuously but initiated legal action against plaintiffs of this suit, there is no scope for claim of right of adverse possession of suit property by the plaintiffs. Therefore, the plea of the plaintiffs regarding adverse possession cannot be accepted and plaintiffs failed to prove right of adverse possession over suit property.
152. It is pertinent to note here that, if the defendant of this suit had filed present suit for same relief as that of the relief sought for by him in O.S.10360/1993 against same parties and in respect of same properties then in that case it is open for plaintiffs of this present suit to argue that defendants of this suit have abandoned their rights of title over suit property without prosecuting previous suit O.S.10360/1993, but the defendants of this suit have not filed any such fresh suit on the same cause of action of O.S.10360/1993 against same parties and for same relief and in respect of same property. Therefore, such argument of plaintiff regarding abandonment of right of defendant over suit property does not arise at all.
151
153. It is pertinent to note here that as rightly argued by defendant when the defendant of O.S.300/1966 is plaintiff in this suit, has not sought counter-claim of adverse possession in O.S.10360/1993 no issues regarding such adverse possession arises and such issues are not framed in that suit and without adjudication of such issues of adverse possession in O.S.10360/1993. It does not amounts of waiver of right or abandonment of right and title by the defendants of this suit.
154. The counsel for plaintiff argued that the Trust-Deed of plaintiff - temple is not set asided by any competent Court of Law. Therefore, the judgment passed by previous courts in O.S.300/1966 are not binding on the plaintiffs. For such arguments the counsel for defendant canvassed counter argument stating that even if the Trust-Deed of plaintiff Trust is not challenged the burden of proof of execution and existence of such Trust-Deed is not proved by the plaintiff of this suit. It is further argued by the counsel for defendant that in this suit plaintiff sought for relief of declaration of title over suit property as Trust property under Trust-Deed and when the plaintiff has failed to prove such existence of Trust-Deed and when the 152 measurement and boundaries of suit properties are not mentioned in Ex.P.1 - Trust-Deed the logical meaning of Ex.P.1 is that, Trust-Deed does not pertain to present suit property on the ground that, if this court ultimately dismiss the case of plaintiff then automatically it amounts to setting aside of Trust-Deed of plaintiff temple indirectly. Therefore, such argument of defendant is having weightage and acceptable under law. Therefore, non mention of measurement of suit property and boundaries in Ex.P.1 - Trust-Deed is nothing but defect of that document and adverse inference can be drawn against plaintiff holding that Ex.P.1 does not pertains to suit property.
155. It is argued by the counsel for defendant that when O.S.300/1966 was filed, at that time plaintiff - Trust was not existing and also argued that plaintiff has not sought for relief of adverse possession in respect of A schedule property. Therefore plaintiff s are not entitled for getting such relief. Such arguments required to be accepted because without claiming such relief this court cannot grant any relief to the plaintiff and not claiming such relief amounts to waiver or abandonment of right of plaintiff in respect of A schedule property. It is pertinent to note here that 153 the plaintiff got amended only A-schedule property, but not amended B schedule property and both A and B - schedule properties are separate properties and not one and the same. Therefore, without seeking specific prayer by the plaintiff they are not entitled for any reliefs even for sake of argument they are able to prove their pleadings. Similarly, it is worth to mention here that the plaintiff claimed relief of declaration and injunction only in respect of A schedule property but not sought any such relief of declaration and injunction against B-schedule property. Therefore, plaintiff is not entitled for getting any relief in respect of B-schedule property, wherein he has not sought any relief in that regard.
156. It is pertinent to note here that the plaintiff No.5 - Mr. Balachandran being the son of Late B. N. Venkatasubba Rao who happens to be the priest of Chikkannamma Devi Temple has not continued the work of priest-ship as successor of his father in respect of Chikkannamma Devi Temple. Therefore, it amounts to waiver of right of plaintiff No.5 as a priest of Chikkannamma Devi Temple. Therefore, on these grounds also the suit of plaintiff is not maintainable.
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157. The counsel for plaintiff has relied upon some citations in support of his case. First of all plaintiff counsel relied upon AIR 2019 Supreme Court page No.3827 in case of Radhakrishna Reddy, wherein it is held by Hon'ble Supreme Court of India that under Article 64 and 65 of Limitation Act, read with Article 27 in order to maintain suit for adverse possession the plaintiff has to prove its legal ingredients and such suits shall be filed within 12 years from the date of arising of cause of action. In this suit,the cause of action for plaintiff arose in the year-1992 when they created Trust-Deed of plaintiff temple and when defendant Lakshman Singh objected the plaintiffs while constructing the building of temple on the basis of such Trust- Deed in 1992-1993. Therefore, suit ought to have been filed by the plaintiffs of this suit within 12 years from 1992 i.e., on or before 2004 as per Article 64 and 65 of Limitation act, but suit is filed in the year-2010 i.e., after 18 years from cause of action. Therefore, such suit is not maintainable and such citation is not coming to help of plaintiff, but it helps in the case of defendants.
158. The counsel for plaintiff relied upon one more citation reported AIR 2020 Supreme Court page No. 710 in case of 155 Narasamma v/s. Krishnappa, wherein it is held by Hon'ble Supreme Court of India that under Article 65 of Limitation Act, the plea of title and adverse possession cannot be claimed simultaneously (together), if it is claimed jointly it amounts to contradictory plea. In this suit, plaintiffs claimed ownership and title over suit property both under Ex.P.1 - alleged Trust-Deed and also by way of adverse possession which is not permissible under law. If at all the plaintiffs wants to claim adverse possession over suit properties, first of all they have admit the title of defendants who is true owner of suit property and then claim interest hostile to the rights of the defendants over suit property and plaintiffs shall prove that such hostile possession was peaceful, open, continuous and without any interference by the true owner for the period of 12 years without filing any suit for eviction. When the defendant of this suit has taken legal action against plaintiff by filing O.S.300/1966 there is no scope for creating of right of adverse possession over plaintiffs since the plaintiffs are in continuous possession over suit property for 12 years and the defendants initiated legal action against plaintiff from very date of alleged date of execution of Trust-Deed and not 156 kept quiet for 12 years permitting the plaintiffs to enjoy the suit property. Therefore, such citation is not coming to help of plaintiff, but on the other-hand it helps the case of defendant.
159. The counsel for plaintiff also relied upon one more citation reported in AIR 2021 Supreme Court page NO.690 in case of State of Madhya Pradesh v/s Poojari Uttan Avam Kalyan Samiti, wherein it is held by Hon'ble Supreme Court of India that the priest of temple or Devasthan is not the owner of temple property, since title cannot be vested with him any title in temple property and therefore, priest has no right to file suit on behalf of temple to protect the interest of temple. Such citation is aptly applicable to the facts of this case, which is helping to the defence of defendants rather then case of plaintiff. Therefore, in this suit the previous priest of plaintiff temple late B. N. Venkatasubba Rao being only archaka or poojari of temple under whom the plaintiffs of this present suit claiming title or litigating under the same title of Venkatasubba Rao have no right to claim title and possession over temple property who are not owners of temple property. Therefore, such citation is not coming to help of plaintiff of this suit.
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160. The counsel for plaintiff also relied upon the citation reported in AIR 1964 Supreme Court page No.948 in case of Isher Singh v/s Sarwang Singh, wherein it is held that under Section 11 of CPC, the matter directly and substantially in issue between previous suit and present suit and which are decided by the previous suit amounts to res-judicata. Therefore, in order to make applicable Section 11 of CPC, to this particular case each and every condition of provisions of Section 11 of CPC should be satisfied. Such citation is helpful to the case of defendant rather then plaintiff, because the suit property in this present suit and previous suit O.S.300/1966 are one and same and reliefs of declaration of ownership and possession and injunction over suit property are also one and same and the plaintiff of this present suit are successors of parties to the previous suit by name Venkatasubba Rao, Seetharam Singh and Muniswamappa and the present plaintiffs are litigating under the same title with that of their predecessor in title claiming as trustees of plaintiff temple Trust under founder of Trust by name B. N. Venkatasubba Rao, but not under independent title. Therefore, when the competent court of Law in O.S.300/1966 right from trial court, Hon'ble High 158 Court upto Hon'ble Supreme Court decreed O.S.300/1996 holding that defendants are owners of suit properties, such issue which was decided by previous courts are directly or substantially in issues in this present suit and it amounts to Res-judicata. Therefore, suit is hit by Section 11 of CPC and suit is not maintainable.
161. The counsel for plaintiff also relied upon one more citation reported in AIR 2000 Supreme Court page No.1238 in case of Sajjadadan Shin dead by Lrs v/s Musa Dadabhai Umar and others, wherein it is held by Hon'ble Supreme Court of India that under Section 11 of CPC - notice of termination of tenancy does not amounts to res-judicata, but issuance of such notice after termination of tenancy applicable to limitation point of maintainability of suit as the starting point of Limitation period. After expiry of lease period in absence of payment of rent by lessee, the status of lessee would be that of tenant at sufferance and not the tenant holding over. It is further held that under Section of 111 of Transfer of property Act, after expiry of lease period if the landlord does not choose to exercise his right of seeking possession of his property, it does not amounts to 159 foreclosure of rights of lessor as owner of suit property and such suit for ejectment by landlord against tenant after termination of tenancy is governed by Article 67 of Limitation Act. The principles laid down in this citation is not applicable to the facts of this case, because in this suit there is no any issue of lease deed and tenancy between landlord and tenant and also ejectment of tenant after termination of tenancy. Therefore, such citation is not coming to the help of the plaintiff of this suit. Therefore, viewed from any angle the plaintiffs have miserably failed to prove their case as per the issues framed in this suit. But on the other-hand, the defendant has successfully defended his suit.
162. It is pertinent to note here that in the pleading of plaintiff it is one of the averment of the plaint that the Chikkannamma Devi Temple property is having its old No.38 and 3/1 and new door No.65, but in the schedule A of the plaint it is mentioned as door No.3/1, Sunkalpet, Bengaluru, but not mentioned as new door No.65. Therefore, the plaintiffs have to prove according to pleading and schedule of the plaint only. Though plaintiff has argued that he has produced documents to prove door number of A - schedule property as 3/1 and new 160 No.65, no any revenue document to that effect or any conveyance deed or title deed is produced in that regard. The plaintiff has not produced either the khata extract or assessment extract or any other revenue document to prove that suit schedule A-property is having its door No.3/1 situated at Chikkannamma Devi Temple street, Sunkalpet, Bengaluru. But on the other-hand, the careful perusal of Ex.P.2 and Ex.P.6 which are one and the same document does not reveal about the old door No.38, but it shows old door No.3/1. This document - Ex.P.6 is private document, but not public documents. Hence, it is has no legal sanctity. If at all as per Ex.P.2 and Ex.P.6, the door number of suit property is 3/1, the revenue document shall reflect to that effect, but the careful perusal of Ex.P.19 the endorsement issued by BBMP dated 18.10.2022 reveals that the property is having door No.65 belonging to Dharamarayaswamy Temple, situated at Annamma Temple street but not belonging to Chikkannamma Devi Temple street. Therefore, by producing false document belonging to Dharamarayaswamy Temple the plaintiff mislead the court as if that document pertains to plaintiff - temple. If at all really Ex.P.19 pertains to plaintiff temple then it should find correct 161 door number either old door No.38 or 3/1, but it is having its separate IPD No.47-138-65 which is not mentioned in schedule A of plaint. Therefore, plaintiff totally failed to prove Ex.P.19 document pertains to suit property and plaintiff by not producing any document to prove the existence of A schedule property described in schedule A of the plaint miserably failed to prove the description of A-schedule property. Therefore, plaintiff is not entitled to any relief in this suit.
163. The careful perusal of one more averment of the plaint goes to prove that the plaintiffs in plaint pleaded that they are in possession and enjoyment and title over suit property for more than 75 years from date of filing this suit. If that is true such admission is contradicting the statement of plaintiff in last para of plaint regarding the date of cause of action. According to last para of plaint, the cause of action arose in the month of October
-2010 and from that date the suit filed by plaintiff is alleged to be within limitation period but as per own admission of the plaintiff which is pleaded in the middle of the plaint, it is pleaded that they are in possession and enjoyment of suit property for more than 75 years. Then the cause of action arose about 75 years ago or at- 162 least in the month of June -1993 when the O.S.10360/1993 was filed by the defendant of this suit opposing the Trust-Deed activities and also construction of temple-building and from that date the present suit ought to have been filed within 12 years of limitation period, but suit is filed after 18 years. Hence, suit is not maintainable.
164. Further in the pleading of plaintiff, they have admitted that Venkatasubba Rao was party to R.A.573/1985 and O.S.300/1966 and he knows about pendency of such suit. Therefore, in view of such admission in the plaint it is not open for the plaintiff to argue that their predecessor in title has no knowledge about the dispute that arose in respect of suit property in respect of O.S.300/1966.
165. Further in the pleading of plaintiff, they have pleaded that Vastad Muniswamappa and others were in possession of Garadimane property free of rent, but the careful perusal of the documents produced by the plaintiff at P - series, particularly Ex.P.13 reveals that he was in permissive possession of Garadimane property as Manager of the defendant and also as one of Dharmadharsi(Trustee) of plaintiff - temple, but not as 163 tenant of suit property. Therefore, there is no question of payment of rent by the Manager of Garadimane or vyayamashala to defendant who is employee of defendant's ancestors by name Lakshman Singh. Hence, such plea of plaintiff does not prove adverse possession over suit property, but it proves permissive possession of Muniswamappa with condition to hand over possession of suit property whenever asked by the owner of suit property. Therefore, plea of adverse possession is not available to the plaintiffs.
166. The plaintiff in his pleading admitting the Gift Deed of the suit property, wherein door Nos.2 and 4 and new door No.63 belongs to the ownership of Gopal Singh and Balaji Singh as per Gift Deed dated 25.03.2010 executed by their father Lakshman Singh and admitted title of defendant over such property. Therefore, such pleading takes away the alleged title of plaintiff over suit property. The plaintiffs have not challenged such Gift deeds marked at Ex.P.16 and Ex.P.17 by filing suit to set aside such document by decree of the court. Therefore, they have not proved title over suit property.
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167. The plaintiff further pleaded in plaint that defendant has not impleaded plaintiffs in O.S.300/1966 which attained finality in Civil Appeal No. 2702/2004. But the careful perusal of certified copy of judgment and decree of Hon'ble Supreme Court of India marked in that Civil Appeal marked at Ex.D.9 goes to reveal that the Lrs of deceased B. N. Venkatasubba Rao was impleaded in that Civil Appeal pending before Hon'ble Supreme Court of India and therefore, when the present plaintiffs are litigating under the same title of deceased Venkatasubba Rao, such findings of previous courts in O.S.300/1966 and R.A.187/1980 and Civil Appeal No.2702/2004 are binding on the plaintiffs and therefore, plaintiffs cannot argue that such previous judgments are not binding on them.
168. Further, it is pleading of the plaintiff in the plaint that after partition in the family of defendants, a separate door number was given to A schedule property by BBMP as door No.3/1, but plaintiffs have not produced any khata extract or assessment extract or endorsement to prove that suit schedule A property is bearing No.3/1. Hence, plaintiffs failed to prove the description of 165 A schedule property. Hence, I answered issue Nos.1 to 4, 6 and additional issue Nos.1 and 3 accordingly.
169. Issue No.5: It is the defence of defendants that suit is hit by non-joinder of necessary parties i.e., Lrs of Gopal Singh. The careful perusal of pleadings and cross examination of the witnesses of plaintiffs reveals that Gopal Singh was owner of the suit property by virtue of Gift Deed dated 25.03.2010 who has died living behind his legal heirs who are necessary parties to this suit, but the plaintiff has not impleaded Lrs of Gopal Singh in this suit and without giving opportunity to the Lrs of Gopal Singh the rights and liabilities of Lrs of Gopal Singh cannot be decided. Hence, suit is bad for non-joinder of Lrs of Gopal Singh. Hence, I answered issue No.5 in the affirmative.
170. Additional issue No.2: It is defence of defendants that court-fee paid by the plaintiff is not just and proper and as such suit is not maintainable. According to defendants, the market value of suit property is more than Rs.1,08,00,000/-. The counsel for defendant during the cross examination of PW1 suggested that the market value of suit property per square feet is Rs.30,000/- per sq.feet. which is admitted by PW1 and same 166 suggestion was made to PW3 to PW7, wherein they have deposed that market-value of suit property is Rs.20,000/- per square feet. All the witnesses plaintiff admitted the total market- value of suit property is Rs.1,08,00,000/-, but suit is valued only for lesser amount of Rs.1,000/- and court-fee of Rs.1500/- paid, which cannot be accepted under the Law. Therefore, non- payment of proper and correct court-fee by the plaintiff on the market-value of Rs.1,08,00,000/- debars to get any remedy under Law. Therefore, suit is not maintainable for non-payment of proper and correct court-fee. Hence, I answered the additional issue No.2 in the negative.
171. It is pertinent to note here that the careful perusal of the records of the suit reveals that at the harassment of the plaintiffs of this suit and their predecessors in title the defendants of this suit were made to suffer for long time from 1966 till 2023 by participating in several legal proceedings upto Hon'ble Supreme Court of India and inspite of final verdict given by the Hon'ble Supreme Court of India, the plaintiffs of this suit not obeyed such dictum of Hon'ble Supreme Court of India and further proceeded to file present vexatious suit to get wrongful 167 gain by hook or crook on one or the other ground. Therefore, the plaintiffs are liable to pay exemplary costs to the defendants.
172. Issue No.7: On the basis of my above reasons and in the result, I proceed to pass following order;
ORDER Suit of the plaintiffs is hereby dismissed with exemplary cost of Rs.25,000/-.
Draw decree accordingly.
(Judgment dictated to Typist, typed by her, corrected by me and then pronounced the same in the open court today on 24 th day of May 2023 and signed in open court.) (M.B.KULKARNI) XXXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE Witnesses examined on behalf of the plaintiff in this suit:
P.W.1 : K. Rangaswamy
P.W.2 : Devaraj
PW3 : M. Ravi
PW4 : Narasimhamurthy
PW5 : N. Narayana
168
PW6 : G. Mohan
PW7 : Revanasiddaraju Yogesh
Documents marked on behalf of the plaintiffs in this suit.
Ex.P.1 : Certified copy of Trust - Deed dated 20.04.1992
Ex.P.2 : Plan of temple
Ex.P.3 : Endorsement issued by BBMP in form No.9.
Ex.P.4 : Certified copy of plaint of O.S.10360/1993.
Ex.P.5 : Certified copy of written statement filed in
O.S.10360/1993.
Ex.P.6 : Blue-print sketch of temple building
Ex.P.7 : Endorsement issued by the City Municipality, Bengaluru
dated 2.4.1930
Ex.P.8 : Receipt issued by CMC, Bengaluru dated 25.6.1943.
Ex.P.9 & : Two sketches of plaintiff - temple dated 24.3.1936.
Ex.P.10
Ex.P.11 : Lease Deed dated 31.12.1939
Ex.P.12 : Certified copy of Lease Deed dated 24.04.1941
Ex.P.12A : Typed-copy of Lease Deed dated 24.04.1941
Ex.P.13 : Agreement of suit property dated 23.04.1948
Ex.P.13A : Typed copy Agreement of suit property dated 23.04.1948
Ex.P.14 : Certified copy of Execution Petition No.1317/2012
Ex.P.15 : CD
Ex.P.15(a) Photographs
to (o)
Ex.P.16 : Certified copy of Gift Deed of suit property dated
25.03.2010 executed by Lakshman Singh in favour of Gopal Singh Ex.P.17 : Certified copy of Gift Deed of suit property executed by Lakshman Singh in favour of Balaji Singh dated 169 25.03.2010.
Ex.P.18 : Certified copy of Partition Deed pertaining to family of B.N. Venkatasubba Rao dated 12.10.1936.
Ex.P.18A : Typed-copy of certified copy of Partition Deed pertaining to family of B.N. Venkatasubba Rao dated 12.10.1936. Ex.P.19 : Endorsement issued by BBMP dated 18.10.2022. Ex.P.20 : Agreement executed by R. P. Muniswamappa dated 22.01.1944 in favour of B. N. Venkatasubba Rao.
Ex.P.20A Typed-copy of Ex.P.20.
Witnesses examined on behalf of the defendant in this suit.
D.W.1 : Krishna Singh Documents marked on behalf of the defendant in this suit.
Ex.D.1 & : Certified copies of Judgment and Decree passed in
Ex.D.2 O.S.300/1966.
Ex.D.2 : Ex.D.2A is sketch of suit property.
Ex.D.3 : Court Commissioner report marked in O.S.300/1966.
Ex.D.4 & : Certified copies of Judgment and decree pertaining to
Ex.D.5 RA.287/1980.
Ex.D.6 : Certified copy of Judgment of RSA.573/1985.
Ex.D.7 & : Certified copies of judgment and decree pertaining to
Ex.D.8 RSA.437/1988.
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Ex.D.9 : Certified copy of Order of Hon'ble Supreme Court
passed in Civil Appeal No.2702/2004.
Ex.D.10 : Certified copy of examination in-chief affidavit of
plaintiff No.2 by name - Rangaswamy pertaining to Execution case No.1717/2012.
Ex.D.10A : Assessment extract of suit property pertaining to Door Nos.2, 3 and 4 situated at Chikkannamma Gudi Street, Sunkalpet, Bengaluru.
Ex.D.11 : Assessment extract and register pertaining to door Nos.2, 3 and 4 of above property for the year-1913 to 1916 Ex.D.12 : Endorsement issued by the Spl. Tahsildar Bengaluru dated 19.2.1964 Ex.D.13 : Khata extract of suit property standing in the name of defendant dated 23.09.2010.
Ex.D.14 : Tax paid receipt of suit property standing in the name of Annamma Devi Temple dated 04.04.2022.
Ex.D.15 to : Photographs.
Ex.D.18 (M.B.KULKARNI) XXXV Addl. City Civil & Sessions Judge, Bengaluru.