Karnataka High Court
Pattada Pujari Ningappa vs Puttaiah on 6 June, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR.JUSTICE A S PACHHAPURE
REGULAR SECOND APPEAL NO.1344/2010
BETWEEN:
1. PATTADA PUJARI NINGAPPA,
S/O PATHAIAH,
AGED ABOUT 25 YEARS,
2. PATHAIAH,
S/O THIPPAIAH,
AGED ABOUT 61 YEARS,
BOTH ARE R/O AKANUR VILLAGE,
DONEHALLY MAJHURE,
JAGALUR TALUK,
DAVANAGERE DISTRICT-577528. ... APPELLANTS
(BY SRI: K. NAGESHWARAPPA, ADV)
AND:
1. PUTTAIAH,
S/O. KIVUDA PATHAIAH,
AGED ABOUT 61 YEARS,
2. SANNUR THIPPAIAH,
S/O. THIPPAIAH,
AGED ABOUT 41 YEARS,
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3. RUDRAPPA,
S/O. PUTTAIAH,
AGED ABOUT 31 YEARS,
4. HEMANNA,
S/O. PATHAIAH,
AGED ABOUT 23 YEARS,
5. DODDATHIPPAIAH,
S/O. BADA NINGAPPA,
AGED ABOUT 58 YEARS,
6. NINGENAHALLY PATHAIAH,
S/O. NINGENAHALLI THIPPAIAH,
AGED ABOUT 43 YEARS,
7. NINGENAHALLY BASAVAIAH,
S/O. PATHAIAH,
AGED ABOUT 63 YEARS,
8. AJJAPPA,
S/O. NINGENAHALLI THIPPAIAH,
AGED ABOUT 63 YEARS,
9. KATIGESHALLI THIPPAIAH,
S/O. NINGENAHALLI THIMMANNA,'
AGED ABOUT 43 YEARS,
10. HALAPPA,
S/O. NINGENAHALLI THIMMANNA,
AGED ABOUT 31 YEARS,
11. PATHALINGAPPA,
S/O. NAGENDRAPPA,
AGED ABOUT 43 YEARS,
12. MURTHY,
S/O. NAGENDRAPPA,
AGED ABOUT 43 YEARS,
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13. JAYANNA,
S/O. PATHAIAH,
AGED ABOUT 63 YEARS,
ALL ARE AGRICULTURISTS AND
R/O. AKANUR VILLAGE, DONEHALLI MAJURE,
JAGALUR TALUK,
DAVANAGERE DISTRICT-577 528.
... RESPONDENTS
(BY SRIYUTHS. REUBEN JACOB & D.P. MAHESH, ADVS.)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED:10.02.2010,
PASSED IN R.A. 19/2007 ON THE FILE OF THE II ADDL. DIVIL
JDUGE (SR.DN.), DAVANAGERE, DISMISSING THE APEPAL AND
CONFIRMING JUDGMENT AND DECREE DATED:03.02.2007,
PASSED IN O.S. NO.10/2005 IN THE FILE OF THE CIVIL JUDGE
(JR.DN.), JAGALUR.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants have challenged the decree dismissing their suit for the relief of declaration and injunction and confirmed in the appeal by the First Appellate Court.
2. The brief facts relevant for the purpose of this appeal are as under:
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The parties will be referred as per their rank before the Trial Court for the sake of convenience.
The appellants herein are the plaintiffs, whereas the respondents are defendants. There is a temple of 'Pathalinga Devaru Deity' at Akanur Village. The plaintiffs claim that they are the hereditary poojaries performing pooja of 'Pathalinga Devaru' and that they are the legal representatives of Galli Kariyappa, Gantlu Yerrananjaiah and Gaddada Ningaiah, the ancestors who were performing pooja in the past.
The plaintiffs also claim that the defendants had instituted a suit in OS No.896/1913-14 for a declaration that they were the poojaries of the deity and also for consequential relief of injunction. The plaintiffs' ancestors contested the suit by filing a written statement. The said suit came to be withdrawn by filing a memo on 15.07.1914. The plaintiffs claim that even thereafter, they continued to perform the pooja of deity and the defendants who have no right, title or any interest in the said deity tried to demolish the temple by denying rights of the plaintiffs to perform 5 pooja. A complaint in this regard was also filed with the police on 12.01.2005. In the circumstances, they sought for a declaration that they are the hereditary poojaries of the schedule 'Pathalinge Devaru' and also for perpetual injunction to restrain the defendants from interfering with the right of performing pooja. The respondents filed the written statement claiming that the temple in dispute is in the land bearing Sy.No.99 which stands in the name of defendants and they have been performing pooja all along since beginning and that they intend to put up construction of a new temple and this act of the defendants was also obstructed by the plaintiffs and that the plaintiffs filed a false complaint with the police. They further claim that the plaintiffs have no right, title or interest of whatsoever type to perform the pooja of the deity and that the plaintiffs are not the legal representatives of those ancestors who were performing pooja.
3. In the trial, plaintiffs examined as PWs.1 to 6 and got marked Exs.P1 to P5 whereas the defendants examined DWs.1 to 7 and got marked documents Exs.D1 to D22. The Trial Court after hearing the counsel for parties 6 and on appreciation of the material placed on record dismissed the suit. Aggrieved by the judgment and decree, the plaintiffs preferred RA No.19/2007 and the said appeal also came to be dismissed vide judgment and decree dated 10.02.2010. Aggrieved by the concurrent findings of the Court below, the present appeal has been filed.
4. This Court vide order dated 12.01.2011 has framed the following substantial question of law for consideration:
"Whether both the Courts have committed an error in not considering Exs.P1 to P5 and also evidence of the plaintiffs and whether Shasana (xerox copy) could be considered without marking for resolving the dispute?"
5. It is the submission of learned Counsel for the appellants that the evidence adduced by plaintiffs is sufficient to prove that they are the legal representatives of the ancestors who were performing pooja of the suit deity. He also contends that the documents - Exs.P1 to P5 reflect the authority of plaintiffs to perform pooja. In alternative, 7 he contends that the relevant document in relation to genealogy and the proof that plaintiffs are the legal representatives have not been produced by mistake and therefore prays that the matter may be remitted back to the Trial Court with an opportunity to the plaintiffs to prove their case. On these grounds, he has sought to allow the appeal.
6. Per contra, learned Counsel for the respondents submit that both the Courts below on appreciation of the material placed on record have come to a just conclusion in dismissing the suit and also the appeal. He contends that the plaintiffs have failed to establish the link to the effect that they are the legal representatives of those ancestors who were performing pooja of the suit deity.
7. Ex.P1 is the copy of plaint in OS No.896/1913- 14, wherein the ancestors of defendants had instituted a suit against the ancestors of plaintiffs. Ex.P2 is the certified copy of written statement filed by the defendants in the said suit. The plaintiffs have also produced the certified copy of the order sheet in the suit, the order passed by the Court 8 and Ex.P5 is the copy of complaint filed by the plaintiffs with the police alleging demolition of the temple by defendants. As could be seen from the evidence of PWs.1 to 6, though plaintiffs claim that defendants in the suit in OS No.896/1913-14 are their ancestors, but they have failed to produce the genealogy and documents to substantiate that they are the legal representatives of the defendants in the aforesaid suit. Though the learned Counsel for the plaintiffs submit that defendants have also not produced any document to show that they are the legal representatives of their ancestors who were performing the pooja, the plaintiffs cannot depend upon the weakness of defendants when plaintiffs have approached the Court on the ground that they have the right to perform pooja of deity, it is for them to establish that they are the legal representatives of those persons who were poojaries of the deity in the past. So, when this link has not been established by the plaintiffs by adducing evidence, it cannot be said that plaintiffs are having right to perform pooja and even in the cross examination of the witnesses examined by the plaintiffs though they state that there are documents of proof of 9 genealogy, they say that the documents have been lost. If it was so, they could have produced the certified copies of the documents to establish the relationship. So far as the Shasana is concerned, it is the xerox copy and it is not exhibited in the evidence and original is not produced. The xerox copy cannot be secondary evidence in the absence of plaintiffs establishing the ground under Section 65 of the Indian Evidence Act. Therefore, such document which is unmarked and is a xerox copy cannot be looked into for any purposes. In that view of the matter, I am of the opinion that the evidence led by the plaintiffs and the materials placed on record are not sufficient to hold that they are the legal representatives of the alleged ancestors from whom the plaintiffs claim a right. Hence, both the Courts below on proper appreciation of the material placed on record have come to a right conclusion in dismissing the suit and the appeal filed by the appellants.
In the result, the appeal fails and it is dismissed.
Sd/-
JUDGE *bgn/-