Karnataka High Court
V Krishnamurthy vs Hanumantha Devaru Trust on 28 September, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF SEPTEMBER 2012
BEFORE:
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.1248 OF 2003
BETWEEN:
1. Sri. V. Krishnamurthy,
Son of Venkatappa,
Major,
Aged about 45 years,
Residing at No.
3rd Main, 5th Cross,
Chinnayanapalya,
Bangalore - 560 030.
2. Sri. Anjaneyaswamy
Welfare Association,
Situated at No.
3rd Main, 5th Cross,
Chinnayanapalya,
Bangalore - 560 0030,
Represented by its
Secretary. ...APPELLANTS
(By Shri. S.K.V.Chalapathy, Senior Advocate for Shri.
S.V.Srinivas, Advocate)
2
AND:
Sri. Hanumantha Devaru Trust,
(A trust registered under the
Indian Trust Act) at No.13,
(old No.17) 3rd Cross,
Chinnayanapalya,
Bangalore - 560 030,
Represented by its Secretary. ...RESPONDENT
(By Shri. B.Rudragowda, Advocate for Caveator / Respondent)
*****
This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure, 1908, against the judgement and decree
dated 18.8.2003 passed in O.S.No.238/2000 on the file of the VII
Additional City Civil Judge, Bangalore (CCH.No.19), decreeing
the suit for permanent injunction.
This Regular First Appeal having been heard and reserved
on 12.09.2012 and coming on for Pronouncement of Judgment
this day, the Court delivered the following:-
JUDGMENT
The present appeal is by the defendants. The case of the plaintiff before the trial court was that it is a Trust registered under the Indian Trust Act, 1882, constituted for purposes of maintaining the deity and the temple of Shri Hanumantha Devaru 3 and its properties and to serve the public at large and the devotees offering worship at the temple, situated at Chinnayanapalya, Bangalore. The Trustees are said to be family members claiming under their ancestor, Chinnappa.
It is their claim that Chinnappa and late Munichinnappa alias Motappa had constructed the temple of Shri Hanumanta Devaru at their own cost and had endowed land measuring about 8 guntas in Survey No.17 of Chinnayanapalya for the benefit of the deity and after their death, their family members including the Trustees, were said to be managing the affairs of the temple over the decades and they were ensuring daily poojas and special jatras and had appointed archaks and other employees from time to time. The plaintiff claimed that the temple was essentially a private temple, where there is no bar for the public at large to participate in the poojas and offer worship at the temple. In this regard, the defendants were also permitted to participate in the poojas and jatras at the temple. The plaintiff claimed that over the decades, 4 there was no interference by any person, as it was common knowledge that the plaintiff and their ancestors were the owners and in management of the temple. However, a need was felt to constitute a Trust and therefore, the plaintiff had come into being in order to better safeguard the temple property and to protect the same from miscreants and land grabbers. Consequently, the khata of the temple property stands in the name of the Trust and has been assessed to taxes by the local authority. (The property is identified as No.13, III Main Road, Chinnayanapalya, Bangalore - 560 030, measuring east to west on the northern side 97 feet, on the southern side 98 feet and north to south 82.6 feet.) It was the plaintiff's complaint that the defendants, who cannot claim any right over the property, except to offer poojas and to participate in the jatras held at the temple, had tried to interfere with the functioning of the plaintiff and its Trustees and it is alleged that the first defendant, who has formed the second defendant - Association is seeking to misrepresent to the general 5 public at Chinnarayanapalya and its environs that the second defendant -Association is managing the temple and its property and has been raising funds on that pretext. The plaintiff declares that the second defendant and the plaintiff are not the same and have no connection with each other whatsoever and the second defendant has nothing to do with the management of the Hanumanta Devaru temple and its property.
It is alleged that in the year 1998, the first defendant had tried to dispossess the plaintiff, while declaring that he is the manager of the properties of the temple, through the second defendant - Association. The Trustees of the plaintiff had filed a suit against the first defendant for a permanent injunction restraining him from interfering with the temple and its management. An interim order of temporary injunction was granted. However, the same was vacated for technical reasons, as the suit was filed in the individual capacity of the Trustees. The defendant, who had thereafter not persisted in his claim, over the 6 temple, again sought to dispossess the plaintiff and had brought his supporters and threatened the Trustees that he would physically dispossess them from the property and keep them out of the property. It is in that background that a suit was filed for an injunction restraining the defendants or anyone, claiming under them, from dispossessing the plaintiff from the suit properties.
2. The suit was contested and the plaint averments were denied. The defendants claimed that the second defendant - Association was formed in the year 1966 by the residents of Chinnarayanapalya, with the object of maintaining Shri Hanumanta Devaru and Maramma Temples as well as Ashwatha Katte in Chinnarayanapalya. It was denied that the Association was formed by the first defendant, but it was the first defendant's father Munichinnappa, who had formed the Association. The first defendant, however, was the Secretary of the second defendant - Association. It was denied that any funds of the Association had been misappropriated and it is stated that one of 7 the Trustees of the plaintiff is a member and an office-bearer of the Association. It was asserted that there was no question of interference by the defendants with the plaintiff as the defendants were very much in possession and management of the temple, though it was true that a civil suit in O.S.No.7762/1998 was filed by the plaintiff, it was denied the order of temporary injunction granted was vacated for technical reasons. There was no order of injunction granted against the first defendant. The order of temporary injunction granted was vacated after hearing the parties and on a prima facie finding by the court that the Trustees were not in possession and it was also held that the defendant was the Secretary of the Anjaneya Swamy Welfare Association and the Association was in active management of the temple and its properties. The fact that the plaintiff had not chosen to produce a copy of that order was clearly a deliberate suppression of that finding of the court. It was vehemently denied that there was any interference preceding the suit by the defendants. It was further asserted that Hanumanta Devaru temple was an ancient temple, 8 which had existed for almost 200 years and it was the residents of Chinnarayanapalya who had maintained the temple. When the need was felt for more orderly management of the temple, the second defendant - Association was formed under the Karnataka Societies Registration Act, 1960 and it was a duly registered body. Its accounts were regularly audited. The temple and its appurtenant land stands in the name of the deity and the plaintiff and its Trustees were actively attempting to take over the ownership of the temple since 10 years preceding the suit. It was alleged that in the year 1989, the Trustees had colluded with the archaks, who were then employed at the temple and made an attempt to take over the management. The said archak had issued a legal notice to the Association, which was only a futile attempt to discredit the Association. The archak had left the temple voluntarily. The Trustees had therefore made yet another attempt in the year 1994-95 by creating the so-called trust. Such attempts were continued and in the year 1997 again, an attempt was made to interfere with the management by the defendant - 9 Association, which lead to the Association issuing a public notice declaring that it was in actual management of the temple and its properties and that the plaintiff was making an attempt to take over the management. It is that which drove the plaintiff to use power and influence on the Corporation to have the khata effected in the name of the Trust, though all along, it stood in the name of the deity and the defendants were compelled to make a complaint to the Commissioner, Bruhat Bangalore Mahanagara Palike (Hereinafter referred to as ' the BBMP', for brevity). The complaint was supported by the residents of Chinnarayanapalya declaring that the Association was, in fact, managing the temple. Ironically, the son of one of the Trustees one M.Narayana Murthy had joined the defendants in filing an affidavit before the Commissioner, BBMP, to declare that it was the second defendant
- Association, which was in management of the temple. There were tenants in occupation of portions of the temple property, who had also sworn to affidavits in support of the defendant - Association . The archaks, who performed pooja at the temple, 10 had also sworn to such affidavits. The defendant has produced bills towards the purchase of vessels and pooja articles from time to time. The defendant had produced bills towards supply of electricity to the premises. The Association had renovated the temple apart from constructing Maramma temple, which was about 100 metres away from the Hanumanta Devaru temple. The Association was also instrumental in performing several functions at these temples and had sought to produce material in support thereof. It was denied that the temple was private property and the defendants asserted that the property belonged to the deity and the deity is worshipped by the residents of Chinnarayanapalya and was, in that sense, public property over which the plaintiff could not assert any private right and therefore, sought dismissal of the suit.
3. On the basis of the above contentions, the court below had framed the following issues:
1. Whether there exists Trust Committee named in the plaint?11
2. Whether temple and its property are the trust properties as claimed by plaintiff trust?
3. Whether plaintiff trust is entitled for the relief of injunction against defendants?
The court below has answered issues 1, 2 and 3 in the affirmative in favour of the plaintiff and has decreed the suit, while clarifying that the temple is to be construed as a public temple and members of the general public, including the first defendant and members of defendant no.2, would have right of darshan and of performing pooja in the temple. It is that which is under challenge in the present appeal.
4. The learned Senior Advocate Shri S.K.V.Chalapathy appearing for the Counsel for the appellants would submit that a preliminary objection as to the very maintainability of the suit is that the plaintiff was said to be a private Trust and it is settled law that any suit by a Trust can be presented only by all the Trustees together and a sole trustee, even if authorised by others, cannot 12 represent them and this aspect of the matter has been completely overlooked by the court below and therefore, the appeal would have to be allowed on that ground alone, without entering upon the merits of the case. Even on merits, the very conduct of the Trustees of the plaintiff-Trust disentitle the Trust to bring any suit at all. Admittedly, the Trust had filed a suit earlier, in O.S.No.7762/1998 before the same court, against the first defendant on identical allegations and had sought the relief of permanent injunction, but the suit was dismissed as not pressed. The dismissal was unconditional. In that, the plaintiff did not seek to obtain leave of the court to withdraw the suit with permission to prefer a fresh suit. Hence, there is a clear bar under Order XXIII Rule 1 of the Code of Civil Procedure, 1908, to bring an identical suit on identical allegations. The finding of the court below that there is an admission by the defendants that the temple property belonged to the ancestors of the plaintiff is erroneous and is not borne out by the record. The averment in the written statement to the effect that even if the plaintiff's ancestors had endowed the 13 land to the temple or the deity, it was not open for the Trustees of the plaintiff - Trust to reclaim the land. This does not amount to an admission that the plaintiff's ancestors had indeed endowed the land to the deity and that the Trustees of the present plaintiff-Trust would continue to exercise control and management of the property by virtue of the same. It is further pointed out by the learned Senior Advocate that the judgment does not analyse the evidence on record, but has merely proceeded to list the respective documents filed by the parties at length and therefore, there is non-consideration of the material on record in arriving at cryptic findings by the court below. There is a specific reference to Exhibit D.63 by the court below, which is a paper publication issued by the defendants in a daily newspaper 'Sanjevani' and the finding of the court below that there is an admission that the property was left behind by Munichinnappa @ Motappa and late Munithirumalappa @ Thammaiah is not reflected in the said publication. As may be seen, there is only a reference to the said persons having donated certain land. This did not imply that the 14 temple belonged to the said persons. The further declaration in the paper publication that the second defendant-Association is in possession of the temple and is in management of the temple property. On the other hand, the plaintiff having placed reliance on Exhibit P.2, a deed of partition between Munichinnappa and others, does not indicate that the temple in question belonged to their family, on other hand, it merely recites that a portion of land which is adjoining Hanumanta devaru temple, is being endowed to the temple. Therefore, it is inexplicable that the court below has arrived at a finding that there is admission by the defendants as to the temple belonging to the ancestors of the plaintiff or that the material evidence on record establish the same. The court below has negated the voluminous material produced by the defendants to establish possession and continued management of the temple over the years. The claim of the plaintiffs that they had been managing the properties since the year 1936 and even before that period, is belied by the fact that the Trust itself has come into existence only in the year 1995. There is no material produced by 15 the plaintiffs to establish that they had incurred expenditure in maintaining the temple over the years, which should be forthcoming with any management. There is no material produced of having carried out any annual repairs or maintenance of the temple. There is no material produced to show the monthly expenses being met by the plaintiffs nor have the plaintiffs produced any material of holding religious functions and poojas in the temple. In particular, attention is drawn to the second defendant-Association having collected donations for renovation of the temple and renovation work having been carried out, as evidenced by Exhibits D.20, D.21 and D.23 and for having purchased the building material as per Exhibits- D.24 and D.25. There are other materials, such as, the pamphlets issued from time to time and messages received from institutions such as, Adichunchanagiri Math addressed to the Association and of various functions conducted by the defendants at the temple. There is even an admission by the plaintiff's witness that during renovation of the temple the deity was kept in a godown 16 constructed by the Association. It is asserted that the finding of the court below that the defendants are not in exclusive possession of the suit schedule property is in the face of abundant material to indicate otherwise. In any event, the plaintiff cannot claim to be in exclusive possession at all, especially, as there is no material produced in that regard, except to indicate that the khata in respect of the property has been transferred in the name of the Trust. It stood in the name of the deity over the years and even that order of transfer and khata was a conditional one and subject to objections as evident from Exhibit P.10. For all of the above reasons, the plaintiff was not entitled to equitable relief of injunction especially, as there was suppression of the filing of the earlier suit and failure of the plaintiff to have obtained any relief in that suit. Since a prima facie finding on the application for temporary injunction was to the effect that the plaintiff did not prove possession as on the date of the suit.
It is further contended that it is a well established principle as reiterated in the case of Anathula Sudhakar vs. P.Buchi Reddy, 17 AIR 2008 SC 2033, by the apex court, that where the plaintiff is in possession, but his title to the property is in dispute or under a cloud or whether the defendant asserts title there to and there is also threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and consequential relief of injunction. Therefore, in the present case on hand, as there was a serious dispute of the claim of the plaintiffs to title to the property and the circumstance that the court below also thought it fit to frame an issue in that regard, it was appropriate for the court below to have relegated the plaintiff to a comprehensive suit for declaration and injunction and ought not to have embarked on a slip-shod inquiry as to title in a suit for bare injunction and therefore, would submit that the appeal be allowed and the suit be dismissed.
5. While the learned Counsel for the respondents would submit that insofar as the legal bar to the maintainability of the suit, in that, all the trustees had not joined in filing the suit and 18 therefore, was not maintainable was never a contention raised before the court below. There was no issue framed in this regard. However, by way of abundant caution, he would submit that since such a contention is raised in the present appeal, to avoid any controversy, an application in I.A.I/2012 is filed, seeking to implead all the Trustees, except three, two of whom, are dead and one is said to be aged and terminally ill and unable to respond to their request to join them, who is sought to be arraigned as the proposed defendant and they have filed a joint affidavit in support of the application. The Counsel would submit that any such lapse cannot be considered as fatal to the suit. It is only as a matter of form and though a necessary formality, it can certainly be permitted to be rectified even at this stage, as there is no conflict of interest or dispute as amongst the Trustees of their intention to file the suit, seeking to protect the temple property. Insofar as the facts of the case are concerned, the learned counsel would point out that even according to the defendants, the temple is an ancient temple. The contention that it belongs to the people of 19 Chinnayanapalya or that it is public property is not evidenced by any material on record. On the other hand, there was material available to denote that the land had been endowed by the ancestors of the plaintiffs-trustees. It is in that context, the court below has addressed the aspect of which of the parties would be entitled to claim management and administration of the suit properties.
6. From the material evidence produced by the parties, the court below has come to a judicious decision that the plaintiffs are in a better position to claim management over the properties, given the evidence on record that the property endowed to the temple did at one time belong to the ancestors of the Trustees of the plaintiff and that though the temple and its properties stood in the name of the deity, khata has been transferred in favour of the plaintiff at a later point of time and that by itself did not confer title on the plaintiff, as the temple has been declared as a public temple. The court below has only held that the plaintiff-Trust 20 could claim management over the suit properties. While at the same time, the court below has also taken note of the concern of the defendants, as representing an Association of Members, who are interested in worshipping at the temple and performing poojas from continuing to do so. Therefore, the learned Counsel for the plaintiffs would submit that the defendants seeking to claim an exclusive right of management over the properties has been negated by the court below. Whereas it has conferred the same on the plaintiffs on being satisfied as to its bona fides. It is further contended that insofar as the objection that an earlier suit having been withdrawn - the later suit was hit by Order XIII Rule 1 CPC, is concerned it is asserted that a suit for injunction is filed on a fresh course of action having accrued and hence was not a bar. Hence, the learned counsel would submit that the reasoning of the court below is justified and that there is no warrant for interference by this court.
7. In the light of the above rival contentions, insofar as the legal contention as to whether the suit by a Trust could have been 21 brought by one of its Trustees may be answered by reference to the following authorities.
In Abdul Kayum vs. Alibhai, AIR 1963 SC 309, the apex Court has expounded as follows :-
"(16) There cannot, in our opinion, be any doubt about the correctness of the legal position that trustees cannot transfer their duties, functions & powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries. A person who is appointed a trustee is not bound to accept the trust;
but having once entered upon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself. Nor can a trustee delegate his office or any of his functions except in some specified cases. The rules against renunciation of the trust by a trustee and against delegation of his functions by a trustee are embodied, in respect of trust to which the Indian Trusts Act applies, in Ss. 46 and 47 of that Act. These sections run thus:-
"46. A trustee who has accepted the trust cannot afterwards renounce it except (a) with the permission of a principal Civil Court of Original Jurisdiction, or (b) if the beneficiary is 22 competent to contract, with his consent, or (c) by virtue of a special power in the instrument of trust.
47. A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.
(17) It is true that S. 1 of the Indian Trusts Act makes provisions of the Act inapplicable to public or private religious or charitable endowments; and so, these sections may not in terms apply to the trust now in question. These sections however embody nothing more or less than the principles which have been applied to all trusts in all countries. The principle of the rule against delegation with which we are concerned in the present case, is clear :
a fiduciary relationship having been created, it is against the interests of society in general that such relationship should be allowed to be terminated unilaterally. That is why the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself; apart from delegation "in the regular course of business, that is, all such functions which a prudent man of business would ordinarily delegate in connection with his own affairs."23
Further, in the case of Atmaram Ranchhodbhai vs. Gulamhusein Gulam Mohiyaddin, AIR 1973 Gujarat 113, in answering the questions, whether some only out of several co- trustees could effectively determine a tenancy by giving notice to quit and secondly, whether a suit to evict a tenant could be filed by one or more co-trustees, without joining other co-trustees in the suit, was answered by a Full Bench of the Gujarat High Court as follows :-
" 2. The determination of these two questions must depend on the true nature and character of the office of co-trustees. The classic statement of the law describing what is the true nature and character of the office of co- trustees is to be found in the following passage from Lewin on Trusts, (Sixteenth Edition), page 181:-
"In the case of co-trustees of a private trust, the office is a joint one. Where the administration of the trust is vested in co-trustees, they all form as it were but one collective trustee and therefore must execute the duties of the office in their joint capacity. Sometimes, one of several trustees is spoken of as the acting trustees, but the Court knows of no such distinction: all who accept the office are in the eyes of the law acting 24 trustees. If any one refuses or is incapable to join, it is not competent for the others to proceed without him, and, if for any reason they are unable to appoint a new trustee in his place under Section 36(1) of the Act, the administration of the trust must devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both, though such sanction or approval must be strictly proved."
The Judicial Committee of the Privy Council pointed out in Man Mohan Das v. Janki Prasad, AIR 1945 PC 23, that this was a correct statement of law applicable in England and that the same doctrine applies in India also. The trustees must act jointly in executing the duties of their office unless the instrument of trust otherwise provides. The instrument of trust may provide that one or more trustees shall be managing trustees entitled to act on behalf of the trust and where such provision is made, those who are empowered to act as managing trustees would be entitled to execute the duties of the office without the concurrence of the other co-trustees. But in the absence of such provision, all co-trustees must join in the execution of the duties of the office."
25
It was held that a trustee cannot delegate any of the duties, functions and powers of his office to his co-trustees or to anyone else, as that would be contrary to his obligation under the Trust. And after referring to Abdul Kayum , supra, and quoting from the same, the Gujarat High Court further held that the observations therein showed that whether the Trust is a private Trust governed by the Indian Trusts Act or is a public charitable or religious Trust, a trustee cannot delegate any of his duties, functions and powers to a co-trustee or to any other person, unless the instrument of trust so provides or the delegation is necessary or the beneficiaries competent to contract consent to the delegation or the delegation is in the regular course of business and that those were the only four exceptional cases in which delegation is permissible and save in those exceptional cases, the trustees cannot, even by a unanimous resolution, authorise one of themselves, to act as a managing trustee for executing its functions and powers relating to the Trust and every one of them must join in the execution of such duties, functions and powers. 26
8. Finally, the Supreme Court declared that unless the instrument of trust otherwise provides, all co-trustees must join in filing a suit to recover possession of the property from the tenant after determination of the lease. No one single co-trustee, even he be a Managing Trustee unanimously chosen by the co-trustees, can maintain such a suit against the tenant without joining other co-trustees. All co-trustees must be joined in the suit and if any one or more of them are unwilling to be joined in the suit as plaintiffs or for some reason or the other, it is not possible to join them as plaintiffs, they must be impleaded as defendants, so that all co-trustees are before the court.
A Division Bench of this court in Jain Swetambara Murthi Pujaka Samastha vs, Waman Dattatreya Pukale, AIR 1979 Kar.111, has taken a view that where proceedings are instituted by one co-owner alone amongst the body of co-owners and where all the co-owners are necessary to be joined as parties and where also the omission so to do, is considered fatal to the proceedings, it is not impermissible for the Court, in appropriate cases, to 27 permit the impleading of the other co-owners in exercise of its powers under Order I Rule 10, sub-rule (2) of the Code of Civil Procedure, 1908 (Hereinafter referred to as ' the CPC' for brevity) and that the position, in principle, should not be very different in the case of Trustees as well. The decision of the apex Court in Kanakarathanammal vs. V.S.Loganatha Mudaliar, AIR 1965 SC 271, was referred to in that regard. The apex court in the said decision has sounded a word of caution to the effect that even in such cases, though the court could direct the necessary parties to be joined, but this should be done at the stage of trial and that too, without prejudice to the plea of the parties as to limitation.
9. Therefore, given the above state of the law, the question whether the application filed by the respondents could be allowed even at this stage in this appeal, could be answered in the affirmative, for the reason that the contention as to non-joinder was not raised and was not present to the mind of the trial court and there was no issue in that regard. There was, however, a 28 lacuna which has gone unnoticed. It is only in this appeal that a ground has been raised on that account and it is for that reason that the application seeking to implead all the Trustees is sought to be filed. In response to the same, the counsel for the appellants has filed a memo to declare that the appellants does not admit the facts stated in the affidavit filed in support of the application under Order I Rule 10 of the CPC and that the statements made in the affidavit are factually incorrect. The appellants, therefore do not seek to take a plea that such impleading is barred by limitation and that allowing such an application would take away any vested right in the defendants. Since the applicant - trustees have declared on oath that they fully support the suit brought by one of the co-trustees, there is no bar to implead them even at this stage. Accordingly, the said application is allowed and the applicants shall be described as co-plaintiffs and as respondents in the present appeal. This judgment shall reflect the same.
Insofar as the court having found in favour of the plaintiffs in injuncting the defendants from seeking to claim management of 29 the temple and its properties, is on the basis of relative merit of the documents filed in support of their respective cases, by the plaintiffs and the defendants. It is incorrect on the part of the appellants to contend that title has been conferred on the plaintiffs. The Trial Court has declared the temple to be a public temple. Even if the Trust is shown as the khatedar, it can only act for the benefit of the deity and it cannot be construed that there is a declaration of title in favour of the plaintiff. The issue framed by the court below is apparently to decide on the question of possession and the temple and its properties are not private properties of the Trustees and it would continue to belong to the deity.
Insofar as the contention that the court below has erroneously found that the defendants had admitted the ownership of the temple properties by their ancestors is merely incidental and an opinion formed on the basis of the material evidence. Even if such observation is eschewed , there is other material available to disclose that the plaintiffs' ancestors were 30 indeed involved in endowing the land to the temple. Therefore, this cannot be a ground to set aside the judgment.
Insofar as the contention that the court below has not analysed or discussed the evidence, is also not tenable. As seen from the body of the judgment, the court below has applied its mind to the evidence of several witnesses as also the nature of documents that were produced, which sufficiently established that the court below had applied its mind. The further contention that when there is cloud on the title of the plaintiff, the parties must be relegated to a comprehensive civil suit, may not apply in the present case on hand, as the question of declaring title in favour of the Trust or Trustees does not arise. It is the case of both the plaintiffs and the defendants that the temple and its properties belonged to the deity and it is only to identify the person or persons who were in possession liable to pay revenue that khata may have been transferred in favour of the Trust. That is one of the facts which has tilted the case in favour of the plaintiffs. That insofar as the bar to the suit under Order XIII 31 Rule 1 CPC is concerned, the suit for permanent injunction has been filed on a fresh cause of action and was hence not barred.
Therefore, there is no infirmity in the judgment of the court below. The appeal is dismissed.
Sd/-
JUDGE nv