Karnataka High Court
Amateyya vs Sri Sharana Amateshwara Trust on 9 February, 2012
Bench: N.Kumar, B.Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH
AT GULBARGA
DATED THIS THE 09ThT DAY OF FEBRUARY 2012
PRESENT
THE HON'BLE MRJUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE B. SREENIVASE GOWDA
Regular First Appeal No. 1658 of 2007
C/w
Regular First Appeal No.1824 of 2007
In RFA NO: 1658/2007
BETWEEN:
1. Amateyya
Sb Girimallayya,
Aged about 63 years,
0cc: Agriculture & Pujari.
2. Jambayya
Sb Amateyya,
Aged about 43 years,
0cc: Agriculture & Pujari.
3. Mallikarjun
Sb Amateyya
Aged about 27 years,
0cc: Agriculture & Pujari.
4. Mahadevappa
Sb Amatevya,
Aged about 24 years,
0cc: Agriculture & Pujari.
5. Honnappa
Sb Arnateyya.
Aged about 22 years.
J 2
0cc: Agriculture & Pujari,
All are R/a Devaragudda Village,
Tq: Deodurga &
Dist: Raichur-584 111.
(Appellant No.1 is dead. He is represented
by appellants No. 2 to 5)
Appellants
(By Sri: A.M. Nagral Adv for
M/s Basava Prabhu S Patil)
AND:
1. Sri Sharana Arnateshwara Trust
Repn by Chief Trustee,
Girimallaya S/o Khandayy.
Age: 33 years,
0cc: Agri & Pujari.
2. Khandayya Sb Girimallayya
Age: 33 years, 0cc: Agri & Pujari,
3. Girirnallayya Sb Khandayy,
Age: 33 years, 0cc: Agri & Pujari,
4. Girimallayya Sb Lingayya
Age: 20 years. 0cc: Agri & Pujari,
All are R/a Devaragudda Village,
Tq: Deodurga &
Dist: Raichur584 111.
(By Sri Ashok S Kinagi. Adv., for Ri & R3;
Sri B.V. Jalde. Ads'., for Ri)
Respondents
This RFA filed U/S. 96 of CPC against the judgment and
decree dated 10-04-2007 passed in 0.S.No.231/03 on the file
of the Addi. Civil Judge (Sr.Dn). Raichur, dismissing the suit
for declaration and injunction.
In R.F.A 1824/2007
1. Amateyya
S/o Girimallayya.
3
'p
Aged about 60 years,
0cc: Agriculture.
Rio Devaragudda village.
Tq: Deodurga,
Dist: Raichur-5841 11.
Since deceased represented by
his L.Rs
1 (a) Jambayya Sb Amateya
Age: 45 years.
1 (b) Mallikaijun Sb Amateya
Aged 31 years.
1 (c) Mahadevappa
Sb Amateya.
Age: 29 years.
1 (d) Honnappa
S/o Arnateya,
Age: 27 years,
All are R/o Devaragudda
Village Tq: Deodurga,
Dist: Raichcur.
Appellants
(By Sri: A.M. Nagral Adv for
M/s Basava Prabhu. S. Patil &
Asts.. Advs..)
AND
1. Khandeppa
Sb Girimallayya,
Aged about 58 years,
0cc: Agriculture,
R/a Devaragudda Village,
Tq: Deodurga &
Dist: Raichur--584 111.
2. Girimallayya
Sb Ningayya,
Aged 30 years,
0cc: Agriculture.
4
Both are R/a Devaragudda village,
Tq: Deodurga &
Dist: Raichur-5841 11.
Respondents
(By Sri B.V.Jalde. Mv.. for Ri)
This RFA filed U/S. 96 of CPC against the judgment and
decree dated 10-04-2007 passed in O.S.No.59/2004 on the file
of the Add!. Civil Judge (Sr.Dn), Raichur, decreeing the suit for
partition and other reliefs.
These RFAs coming on for hearing this day. N.KUMAR,
J. delivered the following:
JUDGMENT
These two appeals arise out of a common judgment and decree passed in two suits. Therefore, they are taken up for consideration together and disposed of by this common judgment.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suits.
3. O.S. No. 231/2003 is filed by the plaintiffs seeking a declaration that the body consisting of defendant Nos. 2 and 3 constituted and registered under the name and style Sri Sharana Amateshwara Trust'. Devaragudda Village. Taluk Deodurg, is illegal body and for a declaration that land bearing Sy. No. 41 measuring 15 acres 4 guntas. situated in 5 Manmutagi Village, is the property of the entire family consisting of all the plaintiffs and defendant Nos. 2, 3 and 4 with liberty to each branch of the ancestors to cultivate the land and take the usufructs alternatively on yearly basis and for other consequential reliefs.
4. Plaintiff No. 1 is the father of plaintiffs No. 2 to 5. Defendant No.2 is the father of defendant No.3 and younger brother of plaintiff No.1. Defendant No.4 is the son of another younger brother of plaintiff No.1, namely Lingayya. In para 4 of the plaint, the genealogical tree of the family of plaintiffs and defendants is set out.
5. The plaintiff No.1 is the son of Late Girimallayya. The said Girimallayya had four sons by name Honnayya, Amatayva-plaintiff No.1. Lingayva-father of defendant No.4 and Khandavva-defendant No.2. Out of the said four sons of Late Girimallavya, the first son by name Honnayya died issueless. The third son Lingayya also died leaving behind his son Girimallayya-defendant No.4.
6. The plaintiffs and the defendants are the descendents of Late Mallayya who was the disciple of Sri.Mailaralinga Swamy Temple at Devaragudda Village. One Amatayya Tata who was 6 the son of Late Maflayya was a great 'Sharana'. He was performing pooja and sen of the Deity of Sri Mallarallngaswamy. After his death a tomb of Late Sri Amatayya has been constructed beneath the hillock where the temple of Sri Mallarallngayya Swamy is situated. This has taken place long back. The case of the plaintiff is that his successors have been performing pooja of temple as well as the Qaddigi of late Amatayya Tata. All the properties described in the schedule to the plaint belong to the temple and Qaddigi. All the parties to the suit are responsible for maintaining the properties and the temple and the Qaddigi. The pooja of the temple and also the Qaddigi is being performed by rotation on yearly basis. The Jatra is also being conducted every year by rotation. The Jatra of Mallaralinga Swamy will be performed for 5 days commencing from Dasara Festival every year. The Jatra of Sri Amatayya Tata will be performed for 2 days on the Ugadi Amavasya and Ugadi Padya every year. The land shown at item No.1 of the schedule belonged to the family of plaintiffs and defendants. It was an Inam land given originally in the name of Late Qlrlmallayya, the father of plaIntiff No.1 and defendant No.2. Since Late Honnayya was the eldest member of the family. the same was got mutated in the name of Late Honnayya. On behalf of all the successors the appilcatlon was 7 filed by Late Honnavya before the Land Tribunal, Shahapur. for grant of occupancy rights in respect of the said laud under the Karnataka Certain Inams Abolition Act, 1977. Accordingly. the occupancy rights in respect of the said land has been granted in the name of Late Honnayya. After his death the plaintiff No.1 and his brothers Lingavva-the father of defendant No.4 and Khandayya-defendant No.2 succeeded to the said land. Therefore, the said land is the property of all the parties to the suit. It is not the exclusive property of any one person in the family much less of the defendant No.3. Of late, defendant Nos. 2 and 3 have been acting indifferently towards other members of the family. A school is being run in the name of Sri Amatayya Tata. Defendant No.3 is educated person. Defendant No.2 is not so highly educated. But, he has got very good social and political contacts. All other family members allowed defendant Nos. 2 and 3 to conduct a school since the same was run in the name of Late Sri Amateshwara. Plaintiff No.1, his sons and also defendant No.4 have been assisting defendant Nos. 2 and 3 by contributing funds and foodgrains for running not only the school but also the hostel. Defendant Nos. 2 and 3 have been mis-using the name of the family and exploiting the goodwill of the family and also the name of Sri,Amateshwara. On account of being the 8 descendents of Late Sri Amateshwara, the family members of the plaintiffs and defendants is highly respected. People voluntarily contribute funds and foodgrains for running the school and hostel at Devaragudda Village. Defendant Nos. 2 and 3 have been exploiting this goodwill for their personal gain. Therefore, the trust constituted under the name of defendant No.1 has to be declared illegal. Defendant Nos. 2 and 3 have made the name of defendant No.1 as a source for personal gain. Hence, the plaintiffs filed the suit for the aforesaid reliefs.
7. After service of notice, the defendants entered appearance. Defendants 1 to 3 filed a common written statement. They did not dispute the relationship between the parties. However, they stated that, the allegation that after the death of Ametheyya, Tomb has been constructed at Hillock where the Mailarling Swamy Temple is situated is not correct. As a matter of fact Samadhi of Amathevva is in existence in Sy. No. 9/2 of Village Devargudda. It is far away from Mailaring Swamy Temple. It is false to say that the successors of the said Amatheyya performed the pooja of the said temple as well as Samadhi of Amathevya. As a matter of fact during the life time of father of defendant No.2, he was performing pooja at the temple as well as Arnatheyya Samadhi, continuously, 9 exclusively. After his death defendant No.2 is only performing Pooja at the temple as well as Samadhi of Amatheyya. Due to his old age for the last 20 years defendant No.3 is only performing Pooja at Mailarling Temple as well as Amatheyya Samadhi till today. The plaintiffs never performed pooja of the said temple and Samadhi at any point of time as they are not well versed with pooja, etc., Therefore, the word as used successors is not correct. They denied that plaintiffs and defendant No.4 are responsible for maintaining the suit property as alleged. They also denied that temple pooja and Samadhi are being performed by yearly rotation, or Jatra is being conducted every year by rotation. They denied that at any point of time Mailarling Jatra was performed by the plaintiffs in Dashara festival, or Jatra of Amatheyya on Ugadi. The plaintiffs and defendant No.4 have nothing to do with the performance of pooja as well as Jatra of Mailaraling Temple as well as Amatheyya Samadhi either on Ugadi or on any other day. As a matter of fact, defendants No. 2 and 3 are performing pooja as well as Dashera Festival Jatra and Ugadi ceremony till today. They denied that item No.1 of suit property belongs to the family of the plaintiffs and defendants. Inam was not originally in the name of Girimallayya. They denied that on behalf of all the successors, the application was c filed by Honnayva before the Land Tribunal. The plaintiffs and defendant No.4 have nothing to do with item No.1 of the suit schedule in any capacity whatsoever. They never cultivated this property at any time and they have nothing to do with this land in any capacity whatsoever. It is exclusively owned and possessed by defendant No.3. The allegation that defendant Nos. 2 and 3 are acting indifferently is false. It is true that defendant No.3 is highly educated and also saintly man and in the name of defendant No.1 he is running the said school. They denied that plaintiffs and defendant No.4 have assisted the defendant No.3 either in contributing funds or foodgrains for running school and hostel. Defendant Nos. 2 and 3 are getting the funds and food grains from devotees as well as public and also from Government. They denied the allegation that defendant Nos. 2 and 3 have misused the name of the family and also exploiting the good will of the family and also the name of Amatheshwar. Defendant No. 1-Trust is legally made. Therefore, the question of declaring it as illegal does not arise. It is registered. Defendant No.3 has been nominated as Uttaradhikari of the Mailaralinga Temple and also Tomb of Amathayya by Late Honnayya Tata and the said Honnayya Tata has executed a Will nominating defendant No.3 as his Uttaradhikari on 13.5.1982 in the presence of large number of H devotees and village elders. Defendant Nos. 2 and 3 alone have performed the pooja and day today affairs of Mailarling Temple and Samadhi of Amathevva till today. Defendant Nos. 2 and 3 are getting the fund and food grains from their devotees for maintaining the said temple as well as hostel. Dasara festival is performed for 5 days in Mailaraling Temple every year. Nanda Deepa expenses as well as Anna Santarprana for more than 5.000 devotees is held. In these five days at least Rs.30,000/- expenses are incurred by these defendants. In Ugadi Amavasya as well as Ugadi Paddya, there are more than 10.000 devotees attending Heliki Ceremony and Annasantarprana will be made in these two days and at least Rs.30,000/- to Rs.40,000/- expenses will be incurred by these defendants. Every Sankranthi festival Lord Mailarling will go to Mailapur along with more than 3,000 devotees and all these expenses are borne by these defendants. Through donation. etc., Punya Thithi' of Late Girimallayya as well as Honnavya are performed by defendants only. Therefore, occupancy right of the suit land of village Munmutagi is granted for defendant No.3 for maintenance of all these ceremonies of Mailarling Temple. Defendant Nos. 2 and 3 are also running the school as well as hostel through defendant No. 1-Trust. The suit for seeking the relief that the constitution of Trust is illegal is not 12 maintainable. Suit is hopelessly time barred as Trust is registered on 2.6.1997. Defendant No.3 is scholarly and saintly personality. The devotees have got full faith in him. Therefore, in the name of defendant No.1, defendant Nos. 2 and 3 are serving the devotees as well as public at large and providing education to the society by running hostel and providing scholarship to high school. Therefore, they sought for dismissal of the suit.
8. On the aforesaid pleadings, the trial Court framed as many as 8 issues which are as under: -
1) Whether the plaintffs prove that, the body consisting of defendant No.2 and 3, constituted & registered under the name sand style "Sri. Sharana Amateshwara Trust" Devaragudda is illegal body?
2) Whether the plaintiffs prove that, the suit land is the property offamily consisting of plaintiffs and defendants No.2 to 4?
3) Whether the plaintiffs prove that, the platntJfs and defendants No.2 to 4 have got equal right to peiform Pooja & other religious activities? 13
4) Whether the plaintiffs prove that, they are having lauful possession over the suit property as on the date qf the suit?
5) Whether the plaintiffs prove that, interference of the defendants?
6) Whether the defendants prove that the suit is not maintainable?
7) Whether the plaintiffs are entitled for the relief as prayed for?
8) What order Qf decree?
9. O.S. No.59/2004 is filed by Kandeppa against Amatayya and Girimallayya for partition and separate possession of his 1/3rd share in the plaint schedule property. The plaintiff and defendant No.1 are full brothers. Defendant No.2 is the son of another deceased brother of the plaintiff. The father of the plaintiff died about 45 years back. Mother Nagamma died about three years back and Ningayya died about two years back.
10. The case of the plaintiff is that he and defendant No.1 constitute Hindu joint family and they are co-parceners. The properties shown in the schedule annexed to the plaint are ancestral and joint family properties in which the plaintiff has 14 his 1/3' undivided share. The parties are governed by Mitakshara School of Hindu Law. Defendant No.1 being the eldest male member in the said joint family is acting as its Karta and is looking after the management of the suit properties. The entire agricultural operations regarding suit schedule agricultural lands are under his control and supervision and he alone deals with the income of the property.
Every year the family gets agricultural produce from joint family lands to the tune of Rs. 1,00,000/- net. But, defendants have not given any account of the income so far to the plaintiff. The plaintiff would get Rs.20,000/- to Rs.25,000/-- in the net income towards his 1/3rd undivided share. The plaint schedule properties are ancestral joint family properties and the parties are in joint possession of the suit properties. There have been differences in the family for two years due to which the plaintiff wanted partition of the properties from defendant No.1. Therefore, he was constrained to file the suit for partition and separate possession of the suit schedule properties.
11. After service of summons, defendant No.2 filed written statement. He admitted the relationship till the date of the plaint. He also admits defendant No.1 is the Kartha of the family. His case is the allegation that defendant No.1 alone is 15 controlling the affairs of the family is not correct. Even the Sons of defendant No.1 and also defendant NO.2 assist in managing the affairs of the suit lands. The allegations that the net income of Rs. 1 ,OO,O0O/ from the joint family from the lands is denied. Similarly the allegations that defendants are not giving account to the plaintiff is also denied. The joint possession is also denied, It is his specific case that defendants are in exclusive possession of the suit lands. Differences in the family is admitted. The differences in the family is not at all connected with the suit properties. It is in respect of misuse of the family name and good will by the plaintiff. The claim of mesne profit is untenable. The plaintiff has not included the other properties including land Sy. No.41, measuring 15 acres 4 guntas of Manamutagi village in Shahapur taluka in the present suit. As such the suit is not maintainable for non inclusion of joint properties of the joint family. Defendant No.1 filed a memo on 9.8.2004 adopting the written statement of defendant No.2.
12. On the aforesaid pleadings. the trial Court framed the following issues:
1. Whether the plaintiff is entitled for the share in the suit properties? If so. what is his share? 16
2. Whether the plaintiff is entitled for mesne profits?
3. Whether defendants prove that the suit is not maintainable for non-inclusion of all the properties for partition?
4. What order or decree?
13. Both the suits were clubbed together and an order was passed for recording common evidence. Amatayya presented the suit in the year 2004. He died during the pendency of presentation of the suit. Therefore his son Mahadevappa was examined as PW 1. They also examined Sri Alaveppa Pura, Ranganna, Devaragudda, Mallanagouda and Honappa as PWs 2 to 5 and produced documents which were marked as Ex. p 1 to P 3(a). Khandayya was examined as DW 1. He also examined 6 others witnesses namely Bheemanagouda, Hanumantha, Thippanagouda, Basanouda, Suggayya Swamy and Ayyalappa as DW 2 to 7 and produced 17 documents which were marked as Ex. D 1 to D 17.
14. In O.S. No.59/2001 the plaintiff claims 1/3rd share in all the plaint schedule properties. The said suit was decreed as prayed for declaring the plaintiff is entitled to get 1/3' share. In so far as suit 0.S. No.231/2003is concerned the trial Court held that the plaintiffs have failed to prove that plaintiff 17 and defendant Nos. 2 and 3 constitute "Sri Sharana Amareshwara Trust" (for short hereinafter referred to as "Trust") and they have failed to prove that the suit land is the property of the family consisting of plaintiffs and defendant Nos.2 to 4. It held that the suit property belongs to the Trust. It further held the plaintiffs have failed to prove that plaintiff and defendant Nos. 2 to 4 have got equal rights to perform pooja and other religious activities. The plaintiffs have failed to prove they are in lawful possession of the suit property as on the date of the suit. Similarly they have failed to prove the interference of the defendants. Therefore it held that the suit is not maintainable and dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree in O.S. No.231/2003 the plaintiffs have filed R.F.A. No.1658/2007. Aggrieved by the decree in O.S. No.59/2004 defendant No.1 has preferred R.F.A. No.1824/2007.
15. Learned Counsel for the appellant contended that in so far as decree in 0.S. No.59/2004 is concerned, the suit ought to have been dismissed as the land bearing Sy. No. 41 which belongs to joint family has not been included in the said suit. It is well settled the suit for partition should include all joint family properties otherwise the suit is liable to be dismissed. 18 In so far as suit O.S. No.231/2003 is concerned he contended that the land bearing Sy. No. 41 belongs to joint family and it did not exclusively belong to late Honnayya Tata though it was granted to him by the Land Tribunal. The grant enures to the benefit of the family. Therefore he could not have bequeathed the property in favour defendant No.3 Girimallayva under a Will. Therefore, the plaintiff being a member of the family is entitled to manage and perform pooja along with the defendants and therefore the trial Court has committed an error in decreeing the suit of the plaintiff. Therefore, he submits a case for interference is made out.
16. Learned Counsel appearing for the respondents contended that Sy. No.4 1 is not included in the suit because it was not a joint family property, it exclusively belongs to Honnavya Tata, the same being granted by the Government and the said Honnava Tata in turn has bequeathed the said property for the benefit of Mutt and temple under a Will to his Uttaradhikari defendant No.3 Girimallayva which is the subject matter of connected suit and therefore the trial Court was justified in holding that the said suit is not bad for not including the said property. In so far as suit O.S. No.231/2003 is concerned he submitted that during the life time of 19 Honnavya Tata he was managing and performing pooja in the temple as well in the Mutt. He appointed defendant No.3 Girimallayya as his Uttaradhikari, he bequeathed the land in Sy. No.4 1 for the aforesaid purposes of the Mutt. It is not a family property. Admittedly the plaintiff is not in possession of the same. It is in exclusive possession of defendants-i and 2. Under these circumstances, if the plaintiff has no right over the said property and his name is not included in the Trust, he has no right to perform pooja. In the life time of said Honnayya Tata he was not performing pooja. Therefore, he prays for dismissal of the appeal.
17. In the light of the facts and rival contentions of the parties, the points that arise for our consideration in this appeal are:
I) Whether the suit O.S. 59/2004 is not maintainable for not including the land in Sy. No.41 in the suit schedule?
ii) Whether the finding of the trial that plaintiff has in no manner any right, title or interest over the land in Sy.No.41 or in the Mutt or in the Temple and he is not entitled any share in the property and he has no right to perform pooja in the temple calls for interference?
Point No.1:
20
The suit O.S. No.59/2004 is filed for partition and separate possession of 1/3rd share of the plaintiff in all the plaint schedule properties. The relationship between the parties are not in dispute. The fact that all the plaint schedule properties are undivided properties belonging to the joint family is not in dispute. Therefore, virtually the defendants did not contest the suit. They agree for partition. But they contended Sy. No.4 1 ought to have been included in the said suit and as the said property was not included the suit is not maintainable. If Sy. No.41 was a joint family property or ancestral property and if it is not included, in the suit schedule, the suit for partition is not maintainable. The evidence on record discloses that the land in Sy. 41 was granted by the Land Tribunal in favour of Honnayya Tata. He had not filed any application for re-grant on behalf of the family. After re-grant he also did not contribute the said property to the family. If he has any intention to include the said property as family property he must have included it in family property. Instead he bequeathed it in favour of third defendant Girimallayya under a Will Ex. D 4 dated 09.05.1982 in O.S. No.231/2003. The said Girirnallavya was appointed by Honnayya Tata to look after the affairs of the Temple and Mutt during his life time. In order to prove this 21 Will, one of the attesting witness has been examined. He has withstood the test of cross examination. Therefore the Will stands proved. The only question is whether Honnayva Tata was competent to bequeath the said property. If it is a joint family property he could not have bequeathed the said property. If it is his exclusive property the bequest is valid.
The trial Court on proper appreciation of the entire evidence on record, by cogent reason has pointed out, that this land is not a joint family property. it is the property exclusively granted to Honnayya Tata. Again on an application made by him it was re-granted to him only and not to the joint family. He was utilising the same for the benefits of Temple and Mutt, he bequeathed the said property to his Uttaradhikari. When, once it is held that the said property is not a joint family property and it exclusively belongs to Honnayya Tata, then non inclusion of the said property is not fatal to the suit. That is precisely what the trial Court has done. Therefore, the judgment and decree passed in O.S. No.59.2004 is valid and legal and it does not call for interference.
Point No.2:
The case of the plaintiffs in O.S. No.231/2003 is the land bearing Sy. No.41 measuring 15 acres 4 guntas situated at Manmutagi Village is the property of the entire family, 22 therefore declaration is to be given to that effect or in the alternative that all the properties in the schedule to O.S. No.231/2003 are the properties in which the plaintiffs and defendants 2. 3 and 4 in the said suit have equal right .
They also have every right to perform pooja and othe r religious activities. In support of their contention that they have right to perform pooja though they have adduced evidence as rightly pointed by the trial Court the said evidence is not sufficient to uphold their claim for performing pooja. In fact they have not been performing pooja at all. It is defendants 2 and 3 who are performing pooja. In fact plaint schedule properties are all utilized for temple purpose. They have constituted and registered a Trust under the name and style "Sri Sharana Amareshwara Trust". Even the land bearing Sy. No.4 1 which is bequeathed by Honnavya Tata to his Uttaradhikari to upkeep of the temple and Mutt and it is being utilising for the said purpose. There was one Arnatayya Tata who was performing pooja and seva of the deity of Sri Mailaralingaswamy. After his death a tomb of Sri Amatayyahas been constructed, in the land bearing 23 Sy. No.41. Followers of Arnatayva Tata have been performing pooja of the Temple as well as Gadding of late Amatayya Tata every year. Jatra of Mailaralingaswamy has also been conducted for 5 days every year and Jatra of Sri Arnatayya Tata was performing for two days every year. People voluntarily contribute funds and food grains for maintaining the school and hostel at Devadurga Village. It is defendant No.2 who is performing pooja to the temple and Mutt continuously and exclusively. Defendant No.3 is performing pooja of Mailaralingaswamy and Samadhi of Arnatayya Tata as defendant No.2 has become old. They are only performing pooja of Mailaralingaswamy and Samadhi of Amatayya Tata. Defendant No.3 was nominated by Honnayya Tata as uttaradhikari under a Will dated 9.05.1982 Ex. D 4 to manage the affairs of the Trust and Temple. The evidence on record discloses that Honnavya Tata was granted inam. But there is nothing to indicate that it was granted on behalf of the family members. Similarly there is no evidence to show that Honnayya Tata was managing the affairs of the family and that he filed an application on behalf of the family 24 members. Therefore, the contention that the grant in favour of Honnayva Tata was not in his name but in the name of family members is not established by any acceptable evidence as rightly held by the trial Cou rt.
Similarly, the plaintiffs' claim they along with defendan t Nos. 2 to 4 have got equal right to perform pooj a and other religious activities. To substantiate this contention they have not produced any evidence. There is nothing to show that at any point of time they have performed pooja. On the cont rary pamphlets which are produced and marked in the case show that defendant Nos.2 and 3 are performing pooja and jatra during Ugadi Amavasya and Ugadi Padya every year The plaintiffs do not deny the title of defendant No.2 to perform pooja vahivat. It is also admitted that defendant No.2 is looking after the affairs of the Trust. The custom pleaded in the family is not established by any acceptable evidence . It is not in dispute that Honnayya Tata was the Head of the Mutt.
He has appointed defendant No.3 as his successor. Whe n the plaintiffs have failed to establish they have right to perform pooja along with defendants and the custom that all the family members are performing pooja is not established the claim of performing pooja putforth by the plaintiffs is not susta inable.25
When once it is admitted by the plaintiffs themselves that defendant Nos, 2 and 3 are only performing pooja and carrying on the vahivat and in the absence of any evidence produced by them to show they have a right to perform pooja and when they are not in possession of the properties the trial Court has rightly rejected the claim of the plaintiffs.
It is not in dispute that defendants No. 2 and 3 have not only formed the Trust they are also members of that registered trust and the plaintiffs are not trustees. Merely because they are members of the family they cannot claim any right, interest or title in the Trust. Therefore, framing of the suit for declaration claiming that they have right in the Trust to perform pooja and other vahivat during jatra are all imaginary and unfounded by any legal evidence on record. Under these circumstances the trial Court was justified in dismissing the suit of the plaintiffs. In fact the trial Court carefully scrutinized every piece of documentary evidence on record in detail and oral evidence of the witnesses who were examined in the case and by giving cogent reason has held the plaintiffs have failed to establish their case and rightly dismissed the suit of the plaintiffs. So, no fault can be found in the said 26 judgment. In that view of the matter, we do not see any merit in both the appeals.
Accordingly both the appeals are dismissed. Parties to bear own cost.
JLIDGR 4s Ckl/vb