Bangalore District Court
Smt. B. Kalpana vs Sri Dodda Matha on 24 January, 2020
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 24th day of January, 2020.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.8583/2011
PLAINTIFFS : 1. Smt. B. Kalpana
Wife of Sri S.L. Chandrashekar,
Daughter of Sri Basavarajappa,
Aged about 49 years
(Died on 02.01.2020)
2. S.L. Chandrashekar,
Son of Sri Lingappa,
Aged about 59 years
Both residing at No.4,
2nd Main, Nayandahalli,
Bengaluru 560 039
(By Sri P.C. Nithyananda, Advocate)
VS.
DEFENDANTS : 1. Sri Dodda Matha,
A private religious institution,
No.231,
2 O.S.No.8583/2011
Akkamahadevi Road,
Akkipet,
Bengaluru 560053
2. Sri Shiva Basava Swami
The alleged mathadhipathi of
Sri Dodda Matha,
Aged about 40 years,
No.231,
Akkamahadevi Road,
Akkipet,
Bengaluru 560053
(By Sri K.G. Sadashivaiah, Advocate)
Date of Institution of the suit : 05.12.2011
Nature of the suit : Suit for Declaration and
Mandatory Injunction
Date of commencement of : 05.02.2018
recording of the evidence
Date on which the Judgment was : 24.01.2020
pronounced
Total Duration Years Months Days
08 01 19
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
3 O.S.No.8583/2011
JUDGMENT
This suit is filed by the plaintiffs for the relief of declaration to declare that the appointment of second defendant as mathadhipathi of the first defendant is illegal and for the consequential relief of mandatory injunction directing the second defendant to cease and desist from acting as the mathadhipathi of the first defendant, settling a scheme for appointment of a suitable person as mathadhipathi of the first defendant and for administration and management of the first defendant, and consequential relief of mandatory injunction directing the second defendant to handover the assets, effects, properties and affairs of the first defendant to the person appointed as mathadhipathi and such other reliefs.
2. The brief facts of the plaintiffs case is that, the plaintiffs are Veerashaiva Lingayats. They owe allegiance to the first defendant, which is a private matha established by Sri Thotadappa, the ancestor of the first plaintiff for the spiritual benefit of Veerashaiva Lingayath community. In the later half of 4 O.S.No.8583/2011 the 19th century, His Holiness Sri Channaveera Devaru was occupying the gaddige of the first defendant as mathadhipathi. Sri Basavappa @ Basettappa, the great grand father of the first plaintiff, being a descendant of Sri Thotadappa and a disciple of His Holiness was serving His Holiness and the first defendant. At that time, His Holiness has taken under his wings Sri Basavalinga, the elder brother of Sri Basavappa with an intention of appointing him as the next mathadhipathi.
Under the deed of arrangement dated 7th December, 1877 and duly registered, His Holiness Sri Channaveera Devaru had entrusted the management of the properties and affairs of the first defendant to Sri Basavapa and Sri Basavalinga. On 25th February 1904 His Holiness executed a deed of settlement or arrangement that he got duly registered, conferring on Sri Basavappa @ Basettappa and his progeny complete and absolute powers of possession and management of the properties and affairs of the first defendant and the power to appoint his own son or his nephew or any other suitable person as mathadhipathi 5 O.S.No.8583/2011 of the first defendant. Apparently, Sri Basavalinga was not in line for succession to the gaddige of the first defendant.
At the aforesaid point of time, there were four items of immovable properties belonging to the first defendant, these were land measuring 3 acres 4 guntas and bearing Sy.No.12, Shivanahalli, Yeshwanthapura Hobli, Bengaluru Taluk, the property comprising a garden and a kalyani well in the land bearing Sy.No.3, Shivanahalli, Yeshwanthapura Hobli, Bengaluru Taluk, the land measuring 5 acres and bearing Sy.No.23, Kethamaranahalli, Yeshwanthapura Hobli, Bengaluru Taluk and the property comprising matha, houses, shops and vacant plot and bearing Municipal Door No.28, Akkipet, Bengaluru.
His Holiness Sri Channaveera Devaru attained Shivasayujya in the year 1918. Sri Basavappa@ Basettappa devoted himself to the management of the first defendant and the improvement of the properties belonging to it. He even challenged an appeal before the then Government of his Highness Maharaja of Mysore, the attempt of he Muzarai Department to take control of the first 6 O.S.No.8583/2011 defendant and succeeded in obtaining a declaration that the first defendant was a private matha and not a Muzarai institution. When he came too old to continue with the management of the first defendant, he got his second son Sri Nanjemari, who was still a minor to take sanyasashrama under the name Sri Channaveera Swami and by the deed of arrangement dated 27th May, 1938 and duly registered, he appointed His Holiness Sri Channaveera Swami as mathadhipathi of the first defendant and in view of the minority of His Holiness, constituted his elder son Sri Revanabasappa as the guardian of His Holiness and handed over the properties and affairs of the second defendant to Revanabasappa.
In terms of his Will dated 12th August 1992, His Holiness Sri Channaveera Swamy who had not been able to name or anoint a person to succeed him to the Gaddige of the first defendant, prescribed the mode and manner of selecting and installing a mathadhipathi for the first defendant.
7 O.S.No.8583/2011
His Holiness Sri Channaveera Swamy attained Shivasayujya on 11th October 1998. Though he had reserved unto himself the power to appoint a mathadhipathi, he could not do so during his lifetime. Consequently, the appointment of a mathadhipathi to the first defendant had to take place as set out in the Will of His Holiness. Sometime later, second defendant claimed to have been appointed as the mathadhipathi of the first defendant. The plaintiffs did not verify the veracity of the said claim. They were content with the fact that religious activities like performance of poojas, etc., special and peculiar to the first defendant were happening and the properties that His Holiness Sri Channaveera Swami appeared to be intact.
On January 12, 2011, the plaintiffs were shaken out of their complacency when they learnt from one of the tenants of the shops in the property of the first defendant at Akkipet, Bengaluru, that the second defendant had instituted suits to evict the tenants and they further learnt that the said suits had been decreed and the tenants had filed Regular First Appeals in the 8 O.S.No.8583/2011 Hon'ble High Court of Karnataka. The plaintiffs made further enquiries and discovered that the second defendant has assumed the position of the mathadhipathi of the first defendant on October 23, 1998, that his appointment was fraught with illegalities and that he was a mere usurper. Being interested in the affairs of the first defendant and concerned with the task of protecting of its sanctity as well as the properties, which are meant to be held and applied for religious activities of the first defendant, the first plaintiff filed Misc. Civil No.1911/2011 in R.F.A.No.1379/2009 in the Hon'ble High Court of Karnataka for impleadment as a party. By the judgment dated January 31, 2011, the Hon'ble High Court was pleased to dismiss all the appeals and also the application of the first plaintiff for impleadment. However, Hon'ble High Court observed that first plaintiff has a bonafide interest in the properties belonging to the first defendant herein, is something which can be decided only if she files a duly constituted suit or scheme suit. 9 O.S.No.8583/2011
Subsequent to the dismissal of the application of the first plaintiff for impleadment in the appeals in the Hon'ble High Court of Karnataka, the plaintiffs have come to know that the second defendant intends to sell the property at Akkipet, Bengaluru with vacant possession and that he has reached a very advanced stage in the negotiations towards that objective. The second defendant has no right to be the mathadhipathi of the first defendant and alienate or otherwise deal with the properties in as much as, according to the procedure stipulated in the Will dated August 12, 1992, made by His Holiness Sri Channaveera Swamy, a committee comprising the heads of Sri Siddaganga Matha, Tumkur, Sri Degulamatha, Kanakapura, Sri Kandugala Bandematha, Magadi Taluk, Sri Katteeralli Matha, Hassan and Sri Pavada Basavanna Devara Matha, Nelamangala, had to, by a unanimous decision, select the person. One Sri Nanjappa and in his absence a person selected by the said committee was to act as the secretary of the said committee. The secretary was required to convene the meeting of the heads of the said Mathas, as members of the said committee, collect their opinion and impleadment the same, in 10 O.S.No.8583/2011 the event of there being no unanimity in selecting the mathadhipathi, the opinion of the head of Sri Siddaganga Matha, Tumkur was to be binding on the members of the committee.
Neither Sri Nanjappa nor any other person acted as secretary of the committee nor any meeting as stipulated took place, the alleged record of anointing ceremony being not the record of any such meeting of the said committee. As a result the appointment of the second defendant as mathadhipathi of the first defendant was not in accordance with the directions in the Will dated 12th August 1992 made by His Holiness Sri Channaveera Swamy and consequently, the management of the properties and affairs of the first defendant ought to have been in the hands of the head of Sri Siddaganga Matha, Tumkur. The second defendant also claims that the Government of Karnataka has declared him to the mathadhipathi of the first defendant in terms of the order bearing No.Kam E 41 Mu Sa Ra 2001 dated June 8,2001, but the said order has no legal sanctity or effect as the first defendant is not a muzarai institution and in fact the said 11 O.S.No.8583/2011 order is void and deserves to be ignored. The plaintiffs are interested in the first defendant and in the preservation of its sanctity as well as properties, they being firstly Veerashaiva Lingayats owing allegiances to the first defendant. Not only the appointment of the second defendant as the mathadhipathi of the first defendant is illegal and not in consonance with the terms of the Will of His Holiness Sri Channaveera Swamy, but also his plan of alienating the property, which now bears Corporation Door No.226 to 230 and 232 to 236, Akkamahadevi Road, Akkipet, Bengaluru belonging to the first defendant, is not in the interests of the first defendant. If he succeeds in alienating the said property, the first defendant will be put to irreparable loss and injury and the plaintiffs and the likes of them who owe allegiance to the first defendant will be exposed to great misery and suffering. In these circumstances, plaintiffs are compelled to institute a suit for removal of the second defendant from the position of mathadhipathi of the first defendant and for settlement of a scheme for appointment of suitable person as the mathadhipathi of the first defendant as the present method of 12 O.S.No.8583/2011 appointment is cumbersome and does not represent the wishes of those who owe allegiance to the first defendant and for the administration and management of the first defendant. In as much as there are number of persons belonging to Veerashaiva Lingayat community and otherwise who owe allegiance to the first defendant and are interested in the affairs of he first defendant and in the settlement scheme for the administration and management of the first defendant, the plaintiffs seeks permission of this Court to institute this suit on behalf and for the benefit of all such persons. The claim of the plaintiffs in the suit for declaration that the appointment of the second defendant as mathadhipathi of the first defendant is illegal, for consequential relief of mandatory injunction directing the second defendant to cease and desist from acting as the mathadhipathi of the first defendant, for settlement scheme for appointment of a suitable person as mathadhipathi of the first defendant and for the administration and management of the first defendant, and such other appropriate reliefs. With these grounds, the plaintiffs seeks to decree the suit.
13 O.S.No.8583/2011
3. After service of the summons, defendants No.1 and 2 have appeared before Court and have filed detailed written statement denying and disputing the plaint averments. At the first instance, defendants contended that, suit is filed in the representative capacity as per Section 8(c) of the plaint is not maintainable, as the provisions of Order 7 Rule 4 and Order 1 Rule 8 of CPC are not complied with, as the same is mandatory. The suit is not maintainable, as the remedy is provided in the registered Will dated 12.08.1992. The suit filed on 05.12.2011 for declaration is also not maintainable, as the same is barred by limitation, since he plaintiffs had the knowledge of the proceedings dated 23.10.1998 appointing the defendant No.2 as mathadhipathi/mathadhyaksha of defendant No.1 math, as they had participated in the said proceedings and the present suit is filed after 13 years 2 months. Cause of action is only on 23.10.1998 and not on other dates stated in para 9(b)(iii)(iv) and
(v) of the plaint. Further the representative suit is filed making false allegations of alienation of math properties by defendant No.2 without any material and documents in support of their 14 O.S.No.8583/2011 allegations in para 8(a) and (b) is bad, illegal and is in their personal interest and hence the suit is liable to be dismissed with costs, as false allegations are made affecting the status, image and position of defendant No.2 in the society without producing any materials in support of the allegations. Moreover no other devotees/persons have joined the plaintiffs in filing the suit. They admits para 2(a) to 5(a) of the plaint as correct. Defendant No.2 was appointed as mathadhipathi as per the registered Will dated 12.08.1998 by the 5 Mathadhipathies in the Samputha proceedings dated 23.10.1998. The suit in O.S.No.5530/2004 came to be decreed on 16.10.2009 granting 3 months time to vacate the premises. The Civil Court had framed issue No.2, which reads as follows:
"Whether the plaintiff further proves that the 1st plaintiff is the mathadhipathi of plaintiff No.2 Sri Doddmath, Chickpet by virtue of Will executed by His Holiness Channaveera Swamiji and proceedings dated 28.09.1998?"
And finding is in the affirmative. Therefore the first prayer has no legs to stand and cannot be considered. Moreover, till 15 O.S.No.8583/2011 today except the plaintiffs, no other devotees of the math has made any complaint or allegations about the management of the math.
The tenants who were not paying rents and who were using vacant place in the premises illegally and in the interest of the math, the ejectment suits were filed and decrees were obtained. The question of the plaintiffs making enquires and discovering that the defendant No.2 assumed position of mathadhipathi does not arise, as they had also participated in the holy ceremony and the proceedings dated 23.10.1998 appointing defendant No.2 as mathadhipathi and they have suppressed the material facts before Court.
The observation by the Hon'ble High Court while rejecting the application of the first plaintiff for impleading on 31.01.2011 reserving liberty cannot be the cause of action for filing the declaration suit in 2011 for declaration declaring the appointment in the year 1998 is illegal, when the plaintiffs had the knowledge of the appointment in 1998 itself. They denies the allegation of 16 O.S.No.8583/2011 alienation of the property as baseless, false and far from truth. They also denies that second defendant has no right to be mathadhipathi and alienate or otherwise deal with the properties of defendant No.1. The order dated 08.06.2001 declaring the defendant No.2 as mathadhipathi by the Government of Karnataka cannot be ignored, as the same is passed in accordance with law and not challenged by any person.
The suit is not maintainable in the present form and the prayer for settlement of a scheme for appointment of suitable person as mathadhipathi is contrary and against the wishes and the terms of the Will dated 12.08.1992. They further denies that plaintiffs and other number of persons belonging to the Veerashaiva Lingayat community are interested in the settlement of scheme for the administration and management of the first defendant math and they further contends that the suit for declaration to declare the appointment of second defendant as mathadhipathi of first defendant is illegal cannot be considered, as the same is barred by limitation and the suit itself is not 17 O.S.No.8583/2011 maintainable in view of Order 7 Rule 4 and Order 1 Rule 8 of CPC. No materials have been produced in support of their allegations. With these contentions and other contentions, seeks to dismiss the suit.
4. On the basis of the above pleadings, my predecessor has framed the following issues on 28.06.2016:-
1. Whether the plaintiffs prove that the appointment of the 2nd defendant as the matadhipathi of 1st defendant-matha is illegal?
2. Whether the plaintiffs prove that the 2nd defendant is acting detrimental to the interest of the 1st defendant-matha?
3. Whether the plaintiffs prove that they are entitled to mandatory injunction directing the 2nd defendant to cease and desist from acting as the mathadhipathi of the 1st defendant-
matha?
4. Whether the 2nd defendant proves that he is the legal heir of the mathadhipathi of 1st defendant-matha as per the Will executed by his holiness Chennaveeraswamy dated 28.09.1998?
5. Whether the plaintiff is entitled for a mandatory injunction directing the 2nd defendant to hand over the assets, properties and affairs of the 1st defendant to the person appointed as mathadhipathi?
18 O.S.No.8583/2011
6. Whether the plaintiffs prove that this court to appoint a suitable person as the st mathadhipathi of the 1 defendant for the administration and management of the 1st defendant?
7. Whether the defendants prove that the suit is not maintainable for the non-compliance of the provisions U/o.I Rule 8 of CPC?
8. Whether the suit is barred by limitation?
9. What Order or Decree?
5. To substantiate the plaint averments, plaintiffs have examined P.W.1 to 3, P.W.1 is S.L. Chandrashekar, the second plaintiff, P.W.2 is Dr. B.R. Chiranth, P.W.3 is M. Satheesha and got marked Ex.P.1 to P.6. Ex.P.1 is the order of the Deputy Commissioner, Ex.P.2 is order passed by Muzarai Commissioner dated 8th September 1930 in Appeal No.12/1930-31, Ex.P.3 is the original settlement deed dated 25.02.1904, Ex.P.3(a) is typed copy of Ex.P.3, Ex.P.4 is registered arrangement deed dated 27th May 1938, Ex.P.4(a) is typed copy of Ex.P.4, Ex.P.5 is registered Will, Ex.P.6 is certified copy of the orders passed in R.F.A.No.1529/2010 dated 31.01.2011.
19 O.S.No.8583/2011
On behalf of defendants, defendant No.2 is examined as D.W.1 and Ex.D.1 to D.25 are marked. Ex.D.1 to D.7 are photographs, Ex.D.8 is certified copy of order passed by the joint Commissioner, BBMP dated 16.09.2006, Ex.D.9 is certified copy of endorsement issued by BBMP dated 07.11.2006, Ex.D.10 is certified copy of order passed by Karnataka Government 27.03.2001, Ex.D.11 is certified copy of certificate issued by BBMP dated 21.01.2000, Ex.D.12 is certified copy of Samputa dated 23.10.1998, Ex.D.13 is certified copy of registered Will dated 12.08.1992, Ex.D.14 is certified copy of order passed in MFA.No.998/2013 dated 08.01.2014, Ex.D.15 is khatha certificate, Ex.D.16 is khatha extract, Ex.D.17 is certified copy of common orders passed in R.F.A.No.1529/2010, Ex.D.18 is certified copy of decree passed in R.F.A.No.1529/2010, Ex.D.19 is certified copy of order passed in R.F.A.No.500/2010, Ex.D.20 is certified copy of order passed in R.F.A.No.1479/2010, Ex.D.21 is certified copy of order passed in R.F.A.No.457/2008, Ex.D.22 is certified copy of order passed in R.F.A.No.1950/2010, Ex.D.23 is certified copy of decree passed in R.F.A.No.1950/2010, Ex.D.24 is certified copy of 20 O.S.No.8583/2011 order passed in R.F.A.No.489/2011, Ex.D.25 is original Samputa dated 23.10.1998. D.W.1 is not cross-examined.
6. Heard the arguments and perused the records. Learned counsel for plaintiffs has not submitted his arguments. Learned counsel for defendants submitted his arguments.
7. Having heard the counsel for defendants, my answer to the above issues are :-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the affirmative Issue No.5: In the negative Issue No.6: In the negative Issue No.7: In the negative Issue No.8: In the affirmative Issue No.9: As per final order, for the following:-
REASONS
8. Issue No.1:- Plaintiffs are before Court for the relief of declaration that the appointment of second defendant as 21 O.S.No.8583/2011 mathadhipathi of the first defendant is illegal and for mandatory injunction to direct the second defendant to cease and desist from acting as mathadhipathi of the first defendant and for settling a scheme for appointment of suitable person as mathadhipathi of first defendant and for the administration and management of the first defendant and for consequential relief of mandatory injunction directing the second defendant to handover assets, properties, etc., to the person appointed as mathadhipathi and such other reliefs.
9. The definite contention of the plaintiffs is that, previous mathadhipathi of first defendant Sri Chennaveera Swamy has executed a Will dated 12.08.1992, wherein he has stated how his successor has to be appointed and in contravention of the said Will, second defendant has been appointed as mathadhipathi of the first defendant. Hence they have sought for the above said reliefs.
10. Whereas defendant No.2 who is representing himself as well as first defendant has filed detailed written statement by 22 O.S.No.8583/2011 contending that, he has been appointed as mathadhipathi of the first defendant in accordance with the Will dated 12.08.1992 by the concerned and the persons mentioned in the said Will and the suit is filed only with an intention to harass the defendants. With these and other contentions he sought to dismiss the suit.
11. On perusal of the entire pleadings and the documents produced by the plaintiffs, one thing is clear that both the parties have admitted the very execution of the Will dated 12.08.1992, which is produced by the plaintiffs at Ex.P.5. In Ex.P.5 previous Pontiff of first defendant has executed the Will wherein he has mentioned that he is aged 71 years and he is making his efforts to name or appoint his successor and he is trying to appoint successor to him during his lifetime and if for any reason he is not able to appoint his successor before his death, then the Swamiji of Siddaganga Mutt, Swamiji of Degula Mutt, Kanakapura, Swamiji of Kanchugal Bandemutt, Magadi, Swamiji of Thannirhalli Mutt, Hassan, and Swamiji of Pavada Basavanna Devara Mutt, Nelamangala has to appoint with consent 23 O.S.No.8583/2011 or if there is no consensus in appointing an unanimous person as successor of the first defendant Mutt, then final call has to be taken by the Chief of Siddaganga Mutt and one Mr. Nanjappa, Retired Under Secretary of the State of Karnataka was appointed as secretary to convene meeting for appointment of successor after his death in case if he has not appointed any successor to his place.
12. Now the contention of the plaintiffs is that, second defendant has been appointed in contravention of Ex.P.5. To substantiate that, plaintiffs should have been made the Swamijis mentioned in Ex.P.5 and G.Nanjappa, retired Under Secretary of State of Karnataka as parties, because the very contention of the plaintiffs is that second defendant has been appointed in contravention of the terms and conditions of the said Will. One thing is clear that he has been appointed as mathadhipathi of the first defendant Mutt, as per the Samputa, which is produced at Ex.D.25. In the said Samputa it is clear that second defendant was in Siddaganga Mutt where he has obtained education and 24 O.S.No.8583/2011 after that, he was working as Mathadhyaksha of Hulikal Thopina Mutt and he has been appointed by 5 Swamijis unanimously to appoint him as mathadhipathi of the first defendant Mutt. The same has been signed by all the Swamijis and the brother of the first plaintiff. Apart from that, there are several persons who have signed the said Samputa accepting the second defendant as Swamiji of first defendant Mutt. So from this document, it is very much clear that he has been appointed in accordance with the terms ad conditions mentioned in the Will, which is produced at Ex.P.5. And moreover the plaintiffs though have provided with sufficient opportunities, have failed to cross-examine D.W.1 and non- cross-examination of D.W.1 impliedly admits that he has been appointed in terms and conditions of Ex.P.5. Moreover, the plaintiffs intentionally have not made the 5 Swamijis who are mentioned in the Will and who appointed the second defendant as mathadhipathi of the first defendant Mutt and Nanjappa, the Under Secretary, as parties to the suit, for the reasons best known to them, because if at all the plaintiffs wants to challenge the appointment of second defendant as mathadhipathi of the 25 O.S.No.8583/2011 first defendant Mutt, then definitely they should have to make all the said persons as parties to the suit, because it is very much clear in Ex.D.25 all the said persons have appointed the second defendant as mathadhipathi of the first defendant Mutt. Apart from this, the said Swamijis are highly placed in the Society and particularly Siddaganga Mutt Swamiji was known as '£ÀqÉzÁqÀĪÀ zÉêÀgÀÄ', nobody can think that the said Swamijis will appoint the second defendant as mathadhipathi of the first defendant, in contravention of the Will, which is produced at Ex.P.5. Except P.W.1 to 3 no other persons have been examined, who signed in the Samputa to show that said appointment was in contravention of the Will.
13. Apart from that, there is clear cut document that Government has accepted the second defendant as mathadhipathi of first defendant mutt, which is produced at Ex.D.10, which is dated 11.06.2001 where the Government has accepted him as mathadhipathi of first defendant mutt. It appears that plaintiffs have filed this suit against the mutt only because of some 26 O.S.No.8583/2011 personal ill will between the plaintiffs and mutt. Their personal ill will cannot be come in the way of administration of the mutt and appointment of mathadhipathi. When there is clear cut records before Court that second defendant has been appointed as mathadhipathi of first defendant mutt, as per Will-Ex.P.5 and Samputa-Ex.D.25, it cannot be held that plaintiffs have proved issue No.1. Hence it is held in the 'negative'.
14. Issue No.2:- It appears that, the dispute between parties has arisen only when the second defendant has filed eviction proceedings against the tenants who are in occupation of the premises of first defendant mutt. The plaintiffs themselves have pleaded that they came to know that second defendant has filed eviction proceedings and order has been passed and during pendency of the dispute before Hon'ble High Court, they came to know that second defendant has filed eviction proceedings against the tenants of the first defendant mutt. Except that, there is no other material to show that second defendant has acted detrimental to the interest of the first defendant mutt. It is 27 O.S.No.8583/2011 clear that after the eviction proceedings, mutt has been renovated and because of the personal ill will and at the instance of the tenants who have been evicted, this suit is filed by the plaintiffs. Because except the self serving statement of the plaintiffs, there is no any material on record to establish their allegations against the second defendant. Hence issue No.2 is held in the 'negative'.
15. Issue No.3:- When this Court has already answered issue Nos.1 and 2 in the negative, question of granting mandatory injunction directing the second defendant to cease and desist from acting as mathadhipathi of first defendant mutt, will arise only if issue Nos.1 and 2 are answered in the affirmative, then only issue No.3 would have been considered in positive. But issue Nos.1 and 2 are held in negative, question of considering issue No.3 does not arise. Hence it is answered in the 'negative'.
16. Issue No.4:- Both parties have not disputed the Will produced at Ex.P.5 and executed by previous mathadhipathi of 28 O.S.No.8583/2011 first defendant mutt. The only grievance of the plaintiffs is that, second defendant has been appointed in contravention of the terms and conditions of the Will Ex.P.5. But the second defendant who himself examined as D.W.1 has produced Ex.D.25, which is Samputa, which reflects that Swamijis named in the Will have appointed the second defendant as Swamiji of first defendant mutt in terms of the Will. Plaintiffs have not cross- examined D.W.1 despite several opportunities and plaintiffs have not established that it is in contravention of the terms and conditions of the Will. The Samputa which is produced at Ex.D.25 clearly shows that five Swamijis who are well placed in the society and well respected from the community as well as society at large have appointed the second defendant as mathadhipathi of the first defendant mutt in the presence of several public and also followers of the mutt. Except the plaintiffs nobody are challenging the said appointment and in the presence of clear cut document at Ex.D.25, I am of the opinion that defendant No.2 is able to prove that he is being appointed as 29 O.S.No.8583/2011 Swamiji of the first defendant mutt as per the Will on 28.09.1998. Hence it is held in the 'affirmative'.
17. Issue Nos.5 and 6:- When issue Nos.1 to 4 have been answered against the plaintiffs, there is no question of granting mandatory injunction to the plaintiffs directing the second defendant to hand over the assets, properties and affairs of the first defendant to the person appointed as mathadhipathi and there is no question of appointing a suitable person as mathadhipathi of first defendant mutt. Hence issue Nos.5 and 6 are held in the 'negative'.
18. Issue No.7:- Plaintiffs have filed this suit though not in representative character, but later on by filing I.A.No.4 have sought for permission of the Court to file the suit in representative character and permission was accorded on 30.06.2012 and as per the said order paper publication was issued in compliance of Order 1 Rule 8 of CPC. Hence it is held in the 'negative'.
30 O.S.No.8583/2011
19. Issue No.8:- Admittedly, this suit is filed by the plaintiffs for the relief of declaration and mandatory injunction. Since the main relief is for the relief of declaration, the suit is to be filed within 3 years from the date of cause of action. The contention of the plaintiffs is that, they came to know the appointment of second defendant as mathadhipathi of first defendant mutt only on July 12, 2011. But in the cause of action column, they have mentioned the dates for cause of action as 11.10.1998, 23.10.1998, 12.01.2011 and 31.01.2011. In this aspect the categorical admission of P.W.1 plays vital role, because in his cross-examination he has clearly admitted in page No.17 para 34 that:
"I might have been present when the "Pattabhisheka" of 2nd defendant for the post of Pontiff of 1st Defendant Mutt on 23.10.1998"
So when he admits that he might have been present when the Pattabhisheka was held on 23.10.1998, it clearly goes to show that he has knowledge of the appointment of second defendant 31 O.S.No.8583/2011 as mathadhipathi of first defendant Mutt as on the date of coronation itself.
20. Apart from that, Ex.D.25, which is produced, discloses the appointment of second defendant is also signed by B. Sadananda, the brother of first plaintiff and brother-in-law of second defendant. He being the brother of the first plaintiff and brother-in-law of second plaintiff, definitely should have been intimated the same to the plaintiffs. Apart from that, it is a coronation ceremony which is held in general public in the presence of senior Swamijis of five different Mutts, then certainly plaintiffs should have knowledge of the said ceremony.
Article 58 of Limitation Act reads as under:
58. To obtain any other Three years When the right to sue declaration first accrues As per Article 58 of Limitation Act, any suit for declaration is to be filed within three years from the date of cause of action. But the present suit is filed on 07.12.2011, after the lapse of almost 32 O.S.No.8583/2011 13 years, is barred by limitation. Hence issue No.8 is held in the 'affirmative'.
21. Issue No.9:- In view of my findings on the above issues, I proceed to pass the following:-
ORDER The suit of the plaintiffs is dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 24th day of January, 2020.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: S.L. Chandrashekar
P.W.2: Dr. B.R. Chiranth
33 O.S.No.8583/2011
P.W.3: M. Satheesha
(b) Defendant's side :
D.W.1: Shivabasava Swamiji
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: Order of DC
Ex.P.2: Order passed by muzarai Commissioner
Ex.P.3: Registered settlement deed
Ex.P.3(a) Typed copy of Ex.P.3
Ex.P.4: Registered arrangement deed
Ex.P.4(a) Typed coy of Ex.P.4
Ex.P.5: Registered Will
Ex.P.6: Judgment passed in R.F.A
(b) Defendants side :
Ex.D.1 to Photographs
D.7:
Ex.D.8: Certified copy of orders passed by the Joint
Commissioner, BBMP, dated 16.09.2006
Ex.D.9: Certified copy of endorsement issued by
the BBMP dated 07.11.2006
Ex.D.10: Certified copy of order passed by
Karnataka Government dated 27.03.2001
Ex.D.11: Certified copy of endorsement certificate
issued by BBMP dated 21.01.2000
Ex.D.12: Certified copy of Samputa dated
23.10.1998
Ex.D.13: Certified copy of registered Will dated
12.08.1992
Ex.D.14: Certified copy of order passed in MFA
34 O.S.No.8583/2011
No.998/2013 dated 08.01.2004
Ex.D.15: Khatha certificate
Ex.D.16: Khatha extract
Ex.D.17: Certified copy of common orders passed in R.F.A.No.1529/2010 Ex.D.18: Certified copy of decree passed in R.F.A.No.1529/2010 Ex.D.19: Certified copy of order passed in R.F.A.No.500/2010 Ex.D.20: Certified copy of order passed in R.F.A.No.1479/2010 Ex.D.21: Certified copy of order passed in R.F.A.No.457/2008 Ex.D.22: Certified copy of order passed in R.F.A.No.1950/2010 Ex.D.23: Certified copy of decree passed in R.F.A.No.1950/2010 Ex.D.24: Certified copy of order passed in R.F.A.No.489/2011 Ex.D.25: Original of Samputa dated 23.10.1998 XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.