Karnataka High Court
Narayanamma vs B Narayanappa on 20 June, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE R.NATARAJ
R.S.A. NO.1182 OF 2008 (DEC/INJ)
BETWEEN:
1. NARAYANAMMA
W/O PARTHASARATHY
SINCE DEAD BY HER LRS
APPELLANTS NO.2 AND 3
WHO ARE ALREADY ON RECORD
2. R.P. LAKSHMINARAYANA
S/O PARTHASARATHY
SINCE DEAD BY HIS LRS
APPELLANTS NO.5 TO 7
WHO ARE ALREADY ON RECORD
3. MEENAKSHAMMA
D/O PARTHASARATHY
AGED ABOUT 57 YEARS
4. NARAYANAMMA
W/O LAKSHMINARAYANA
SINCE DEAD BY HER LRS
APPELLANTS NO.2, 5, 6 AND 7
WHO ARE ALREADY ON RECORD
5. PARTHASARATHY @ RAJANNA
S/O LAKSHMINARAYAN
AGED ABOUT 30 YEARS
6. SHASHIKALA
D/O LAKSHMINARAYANA
AGED ABOUT 28 YEARS
2
7. RENUKA
D/O LAKSHMINARAYANA
AGED ABOUT 25 YEARS
ALL ARE RESIDENTS OF
NAGAMMA MUTT,
BEHIND SNR HOSPITAL,
BANGALORE ROAD, KOLAR.
...APPELLANTS
(BY SRI. K RAGHAVENDRA RAO, ADVOCATE;
VIDE ORDER DATED 23.10.2018 APPELLANTS NO.2 AND 3 ARE
LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.1;
APPELLANTS NO.2, 5, 6 AND 7 ARE THE LEGAL
REPRESENTATIVES OF DECEASED APPELLANT NO.4)
AND:
1. B. NARAYANAPPA
S/O BEGLI SEETHARAMAPPA
AGED ABOUT 58 YEARS,
R/AT KADRIPURA VILLAGE
BUDIKOTE HOBLI
BANGARPET TALUK.
2. MUNIVENKATAPPA
S/O BEGLI SEETHARAMAIAH
SINCE DEAD BY HIS LRS
2(a) SMT. SHARADAMMA
W/O LATE MUNIVENKATAPPA
AGED ABOUT 60 YEARS
2(b) SATHYAKUMAR,
S/O LATE MUNIVENKATAPPA
AGED ABOUT 38 YEARS
2(c) SEETHARAMA
S/O LATE MUNIVENKATAPPA
AGED ABOUT 35 YEARS
RESPONDENTS NO.2(a) TO 2(c)
ARE RESIDING AT K.N.S. POST,
3
GAJALADINNE, KOLAR TALUK,
KOLAR DISTRICT.
2(d) UMAVATHI
W/O MURALI @ NAAYANASWAMY
AGED ABOUT 38 YEARS
RESIDING AT D.NO.21/1,
JOGUPALYA, NADANAVANA,
BEHIND ULSOOR POST OFFICE,
NEAR UYALLEMANTAPA,
ULSOOR, BANGALORE-560008.
3. REVANNA
S/O BEGLI SEETHARAMAIAH
AGED ABOUT 54 YEARS,
R/AT KADRIPURA VILLAGE,
BUDIKOTE HOBLI,
BANGARPET TALUK.
4. MUNISWAMAPPA
S/O BEGLI SEETHARAMAIAH
AGED ABOUT 52 YEARS,
R/AT KADRIPURA VILLAGE,
BUDIKOTE HOBLI,
BANGARPET TALUK.
5. B. VENKATESHA
S/O KRISHNAPPA
AGED ABOUT 45 YEARS,
R/AT KARIMANEHALLI,
BANGARPET TALUK.
6. ANAND
S/O KRISHNAPPA
AGED ABOUT 30 YEARS,
R/AT KARIMANEHALLI,
BANGARPET TALUK,
KOLAR DIST.
7. MUNISWAMAPPA
S/O KRISHNAPPA
SINCE DEAD BY HIS LRS
4
7(a) NARAYANAMMA
W/O MUNISWAMAPPA
AGED ABOUT 62 YEARS
R/O KURUBARAPET,
BUDIKOTE VILLAGE,
BANGARPET TALUK,
KOLAR DISTRICT.
7(b) BATHAMMA
D/O LATE MUNISWAMAPPA
W/O NARAYANASWAMY
AGED ABOUT 45 YEARS
R/O KURUBARAHOSAHALLI VILLAGE,
DINNUR POST, MALUR TALUK,
KOLAR DISTRICT.
7(c) VENKATALAKSHMI
D/O MUNISWAMAPPA
W/O SHIVAPPA
AGED ABOUT 40 YEARS
R/O KURUBARACHANNAPPANAHALLI,
KAMMASANDRA POST,
BETHAMANGALA HOBLI,
BANGARPET TALUK.
7(d) MANJUNATH
S/O LATE MUNISWAMAPPA
AGED ABOUT 35 YEARS
R/O KURUBARAPET,
BUDIKOTE VILLAGE,
BANGARPET TALUK,
KOLAR DISTRICT.
7(e) SIDDARTHA @ SIDDA
S/O LATE MUNISHAMAPPA
AGED ABOUT 28 YEARS
R/O KURABARAPET,
BUDIKOTE VILLAGE,
BANGARPET TALUK,
KOLAR DISTRICT.
8. RAMACHANDRA
S/O KRISHNAPPA
5
AGED ABOUT 32 YEARS
R/AT KARIMANEHALLI
BANGARPET TALUK,
KOLAR DIST.
9. VENKATACHALAPATHI
S/O KRISHNAPPA
AGED ABOUT 37 YEARS
R/AT KARIMANEHALLI
BANGARPET TALUK,
KOLAR DIST.
10. CHANDRAPPA
S/O KRISHNAPPA
SINCE DEAD BY HIS LRS
10(a) SMT. JAYAMMA
W/O LATE CHANDRAPPA
AGED ABOUT 55 YEARS
10(b) SMT. CHIKKAMMA
D/O LATE CHANDRAPPA
AGED ABOUT 32 YEARS
10(c) SRI. RAMESH
S/O LATE CHANDRAPPA
AGED ABOUT 28 YEARS
10(d) SRI. VENUGOPAL
S/O LATE CHANDRAPPA
AGED ABOUT 24 YEARS
RESPONDENTS 10(a) TO 10(d)
ARE RESIDENTS OF KARIMANEHALLI
BANGARPET TALUK, KOLAR DIST.
(RESPONDENTS NO.10(a) TO 10(d)
BROUGHT ON RECORD AS PER COURT
ORDER DATED 21.09.2016)
11. MUNENDRAPPA
S/O KRISHNAPPA
AGED ABOUT 55 YEARS,
6
R/AT GAJALADINNE VILLAGE
KASABA HOBLI,
KOLAR TALUK.
12. SEETHARAMA
S/O KRISHNAPPA
AGED ABOUT 34 YEARS,
R/AT GAJALADINNE VILLAGE
KASABA HOBLI,
KOLAR TALUK.
13. B. KRISHNAPPA
S/O BEGLI SEETARAMPPA
AGED ABOUT 75 YEARS,
R/AT KADRIPURA VILLAGE
BUDIKOTE HOBLI,
BANGARPET TALUK.
14. THIMMAIAH
S/O BEGLI SEETHARAMAIAH
SINCE DEAD BY HIS LRS
14(a) SMT. LAKSHMIDEVAMMA
W/O LATE THIMMAIAH
AGED ABOUT 48 YEARS
14(b) SRI. SRINIVASA
S/O LATE THIMAIAH
AGED ABOUT 29 YEARS
14(c) SMT. NAGAVENI
D/O LATE THIMMAIAH
AGED ABOUT 25 YEARS
RESPONDENTS 14(a) TO 14(c)
ARE R/AT GAJALADINNE VILLAGE,
KASABA HOBLI, KOLAR TALUK.
RESPONDENTS NO.14(a) TO 14(c)
BROUGHT ON RECORD AS PER COURT
ORDER DATED 21.09.2016
7
15. K. NARAYANAPPA
S/O BEGLI SEETHARAMAIAH
AGED ABOUT 67 YEARS
R/AT GAJALADINNE VILLAGE
KASABA HOBLI, KOLAR TALUK.
...RESPONDENTS
(BY SRI. G. PAPI REDDY, SENIOR COUNSEL A/W SRI. V. VINOD
REDDY, ADVOCATE FOR CAVEATOR/RESPONDENT NO.1, 3 AND
4;
NOTICE SERVED ON RESPONDENTS NO.2(a to d), 7(a, d AND
e), 8, 9, 10(a TO d), 11, 12, 13, 14(a TO c), 5, 6;
NOTICE SERVED ON RESPONDENT NO.15;
VIDE ORDER DATED 23.03.2018 SERVICE OF NOTICE TO
RESPONDENT NO.7(b) IS HELD SUFFICIENT BY WAY OF PAPER
PUBLICATION;
VIDE ORDER DATED 11.06.2018 SERVICE OF NOTICE TO
RESPONDENT NO.7(c) IS HELD SUFFICIENT BY WAY OF PAPER
PUBLICATION)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 15.03.2008 PASSED IN R.A.NO.120/2007 ON
THE FILE OF THE PRL. DISTRICT JUDGE, KOLAR, PARTLY
ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND
DECREE DATED 03.10.2007 PASSED IN O.S. NO.85/2001 ON
THE FILE OF THE I ADDL. CIVIL JUDGE, (SR.DN), KOLAR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.04.2022, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
8
JUDGMENT
This appeal is filed by the plaintiffs in O.S.No.85/2001 on the file of the I Addl. Civil Judge (Sr. Dvn), Kolar (henceforth referred to as 'Trial Court' for short) challenging the Judgment and Decree passed by the Principal District Judge at Kolar (henceforth referred to as 'First Appellate Court' for short) in R.A.No.120/2007, by which it allowed the said appeal-in-part and reversed the Judgment and Decree passed in O.S.No.85/2001 in so far as the relief of declaration of title.
2. The parties shall henceforth be referred as they were arrayed before the Trial Court.
3. The suit in O.S.No.85/2001 was filed for the relief of declaration that the plaintiffs are the owners of the suit property and for perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiffs in the suit property.
4. The plaint discloses that the plaintiff No.1 is the mother of the plaintiff Nos.2 and 3 while the plaintiff 9 No.4 is the wife of the plaintiff No.2, plaintiff Nos.5 to 7 are the children of plaintiff Nos.2 and 4. It is claimed that Begli Seetharamaiah had three wives. He begot Krishnappa from his first wife Chikkamma. The defendant Nos.5 to 12 are the children of the said Krishnappa. The defendant Nos.1 to 4 are the sons of Begli Seetharamaiah from his third wife Muniveeramma, while the defendant Nos.13 to 15 are the sons of Begli Seetharamaiah from his second wife Tulasamma.
5. The plaintiffs claimed that the suit property is a "Mutt property" which belonged to Smt. Nagamma and her husband Sri. Subbadas, who had renounced the world and were residing in the suit property, where they had established a Mutt called "Nagamma Mutt". They claimed that they had a son named Ramaswamy and a grandson named Parthasarathy. The plaintiff No.1 is the wife of Parthasarathy and plaintiff Nos.2 and 4 are their children. After the death of Nagamma and Subbadas, they were buried within precincts of the Mutt. The plaintiffs claimed 10 that along with the graves of Nagamma and Subbadas, there were the graves of other four Sadhus. They claimed that the grandfather of plaintiff No.2, who is the father-in- law of plaintiff No.1 was conducting Aradhanas twice a year from out of the rents received from the tenants in a portion of the Mutt building. After his demise, the plaintiff No.1 and her husband were performing the said Aradhanas and presently, the plaintiff No.1 along with plaintiff No.2 are conducting the Aradhanas in the Mutt and are residing therein along with the other plaintiffs. They claimed that the portion of the building was rented to various persons who were paying the rents to plaintiff Nos.1 and 2. The plaintiffs claimed that by utilizing the rent and contributing their own money, they were conducting the Aradhanas twice a year and they were feeding the poor. Therefore, they claim that the suit property was the ancestral property and was in their possession and enjoyment. They claim that the Municipality had assessed the suit property and had assigned Municipal Assessment No.3089. On the application of the plaintiff No.3 to transfer the khatha of 11 the suit property, which until then stood in the name of Nagamma Mutt, was later changed to the name of plaintiff No.2 with the consent of plaintiff No.1. However, it was cancelled as the defendant Nos.1 to 12 raised objections against registering the suit property in the name of the plaintiff No.2. The plaintiffs claimed that the defendants are the strangers to the suit property, but yet had objected to the change of khatha on the ground that suit property lay within the Sy.No.63/1 of Kasaba, Kolar town, which was the subject matter of a partition deed dated 05.05.1975. The plaintiffs alleged that taking advantage of the cancellation of the khatha, the defendants attempted to dispossess the plaintiffs, which compelled the plaintiffs to seek for declaration of their right and for perpetual injunction.
6. The suit was contested by the defendant Nos.1 to 6, who denied the averments of the plaint. They contended that Nagamma was a spinster and was not the wife of Subbadas as alleged. They denied that Nagamma 12 had a son named Ramaswamy and that the husband of the plaintiff No.1 was the grandson of Nagamma. They however, contended that plaintiff No.1 was the wife of Parthasarathy and the plaintiff Nos.2 and 3 were the children of Parthasarathy. They denied the averments of the plaint that the suit property was owned by Nagamma and that she had established a Mutt in the suit property where the bodies of Nagamma and Subbadas were buried. They also disputed that the bodies of four other Sadhus were buried in the precincts of the Mutt. They claimed that the suit property was the land bearing Sy.No.63/1, which belong to Begli Seetharamaiah. The defendant Nos.1 to 4 were the sons of Begli Seetharamaiah while the defendants No.5 to 12 were the grandsons of Begli Seetharamaiah and defendant Nos.13 to 15 were the sons of Begli Seetharamaiah. They claimed that Begli Seetharamaiah died in the year 1977 and during his lifetime, on 05.05.1975, he partitioned the properties. At the said partition, 'A' schedule properties fell to the share of B.Krishnappa, while 'B' schedule properties fell to the 13 share of defendant Nos.13 to 15 and 'C' schedule properties fell to the share of defendant Nos.1 to 4. As per said partition, 1¼ guntas in Sy.No.63/1 was allotted to their respective shares. They claimed that this land was still used for agricultural purposes. They claimed that the father and grandfather of Begli Seetharamaiah had established a Mutt for philanthropic purposes in Sy.No.63/1 and were performing Bhajans and other spiritual activities. Nagamma, who was the maternal grandmother, used to reside in the Mutt and was looking after the affairs of the Mutt as a Sanyasini. She was buried in the precincts of the Mutt and therefore, the Mutt was referred to as "Nagamma Mutt". After the death of Begli Seetharamaiah and Nagamma, the defendants were continuing the activities in the Mutt. They alleged that the plaintiff No.1 was the daughter of Begli Seetharamaiah from his second wife Tulasamma and no share was allotted to the plaintiff No.1 or any of his daughters. Therefore, they claimed that the plaintiff No.1 and other plaintiffs were justified in laying any claim in the suit property. The 14 defendants admitted that certain portions of the suit property were rented out to tenants and the rent was utilized for maintenance of the Mutt. They claimed that they had constructed a building in the suit property and had sunk a well. They alleged that the plaintiff No.2 being a Police Constable had managed with the Municipal Officials and obtained the khatha in his name, which was challenged by the defendants and thereafter, the Municipal Council cancelled the khatha in favour of the plaintiff No.2. They alleged that though the suit property was partitioned under the deed dated 05.05.1975, yet it continued in the joint possession as the suit property was reserved for spiritual and religious purposes.
7. Based on the averments, the Trial Court framed the following issues:
1. Whether the plaintiffs prove that deceased Smt. Nagamma is the wife of Subbadas and their son is deceased Ramaswamy?
2. Whether the plaintiffs prove their title to suit property?15
3. Whether the plaintiffs prove lawful possession over suit property?
4. Whether plaintiffs prove interference by defendants?
5. Whether suit is not properly valued?
6. Whether court fee paid is insufficient?
7. Whether there is no cause of action for suit?
8. To what order of decree?
8. The plaintiff No.2 was examined as PW1 and he marked documents as Exs.P1 to P27 and he also examined four other witnesses as PWs.2 to 5. The defendant No.2 was examined as DW1 and he marked documents as Exs.D1 to D7. He examined two other witnesses as DWs.2 and 3. The Trial Court appointed a Survey Officer as a Commissioner, who was examined as CW1 and he marked documents as Exs.C1 to C3.
9. Based on the oral and documentary evidence, the Trial Court decreed the suit and declared that the plaintiffs are the absolute owners in possession and enjoyment of the suit property and restrained the 16 defendants from interfering with the peaceful possession and enjoyment of the plaintiffs in the suit property.
10. Being aggrieved by the Judgment and Decree, the defendants filed R.A.No.120/2007. The First Appellate Court secured the records of the Trial Court, heard the counsel for the parties and framed the following points for consideration:
1. Whether the plaintiffs have effectively discharged their burden in the matter of proving that Nagamma had married Sri. Subbadas and that they had a son by name Ramaswamy?
2. Whether the plaintiffs have become the owners of the suit schedule property?
3. Whether the plaintiffs are in possession of the property and if so, what is the nature of the possession?
4. Whether any interference is called for by this court and if so to what extent?
11. The First Appellate Court held that the plaintiffs did not prove their title to the suit property. However, it held that the plaintiffs were in possession of the suit property and therefore, allowed the appeal-in-part and 17 decreed the suit for perpetual injunction restraining the defendants from interfering with the possession of the plaintiffs. It also held that grant of injunction would not deprive the defendants or any devotees and other Sadhus from performing annual Aradhanas and conducting functions on special occasions.
12. Being aggrieved by the Judgment and Decree of the First Appellate Court, the plaintiffs have filed this appeal.
13. This appeal was admitted to consider the following substantial questions of law:
1. Having confirmed the decree for permanent injunction, granted by the trial court, whether the First Appellate Court is right in law in permitting the defendants and others for performing annual Aradhanas and other functions on special occasions in Nagamma Mutt existing in the suit schedule property?
2. Whether the First Appellate Court has committed an illegality in permitting the defendants to perform annual Aradhanas etc., 18 especially when such an issue has not arisen for consideration at all between the parties?
3. Whether the modification of the decree for permanent injunction granted by the First Appellate Court would negate the very confirmation of the decree for permanent injunction granted by the Trial Court?
4. Whether the First Appellate Court is right in law in conferring a right upon the defendants especially when they have not approached the court seeking adjudication of any of their rights over the suit schedule property?
5. Having recorded a finding that the defendants have failed to prove their title to the suit schedule property, whether the First Appellate Court is right in law in reversing the Judgment and Decree passed by the Trial Court with regard to declaration of title, especially when it records a finding that the plaintiffs are in settled possession of the suit schedule property which is situate in Sy.No.73/3?
14. The learned counsel for the plaintiffs submitted that the revenue documents namely Municipal records indicated that the suit property was assessed in the name of Nagamma Mutt. He submitted that once the plaintiffs had established that they were in possession of the suit 19 property, by virtue of the presumption under Section 110 of the Indian Evidence Act, 1872 (henceforth referred to as "the Evidence Act" for short), the plaintiffs are deemed to be the owners of the suit property. The learned counsel, therefore, contended that the defendants did not prove by acceptable evidence that the plaintiffs were not the owners of the suit property. In this regard, he relied upon the judgment of the Hon'ble Supreme Court in Chief Conservator of Forests vs Collector and others [(2003) 3 SCC 472]. He further contended that the tenants in the suit property had always treated the plaintiffs as the owner which corresponded with the Municipal records spread over a long number of years. Therefore, he contended that the Municipal records did have a evidentiary value which was not taken note of, by the First Appellate Court while reversing the Judgment and Decree of the Trial Court. In this regard, he relied upon the judgment of the Hon'ble Supreme Court in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple and another [AIR 2003 SC 4548]. 20 The learned counsel further contended that the evidence of the Commissioner did not indicate whether the suit property fell within the limits of Sy.No.63/1 of Kasaba and therefore, the defendants had not established any better title to the suit property. The learned counsel contended that in view of the Section 110 of the Evidence Act and the fact that the plaintiffs were in possession of the suit property, the First Appellate Court committed an error in reversing the Judgment and Decree of the Trial Court in so far of it is related to the relief of declaration of title. The learned counsel further submitted that the defendants had not challenged the entry of the name of Nagamma Mutt in the Municipal Records and had not paid the property tax in respect of the Mutt and were not in possession of the Mutt and were not collecting the rent. Therefore, the First Appellate Court committed an error in reversing the Judgment and Decree of the Trial Court insofar as relief of declaration of title to the suit property is concerned. 21
15. The learned counsel for the defendants, on the other hand, submitted that the plaintiffs except pleading that they were related to Subbadas and Nagamma, did nothing to prove their relationship. The only document that was placed on record, was a self-serving family tree drawn up by a Village Accountant, on the say of the plaintiffs and therefore, the plaintiffs did not prove their relationship as required under Section 50 of the Evidence Act. He further submitted that except the revenue documents, there are no documents of title to the property in question that stood in the name of either Nagamma or Subbadas and therefore, the plaintiffs cannot claim any title to the property in question. He further submitted that the plaintiffs cannot claim any title to a religious entity, which is now endowed to the public at large and they cannot seek any injunctive reliefs against the defendants as the defendants also have a right to enter and worship the grave of Smt. Nagamma and other Sadhus, who were buried. He claim that Smt. Nagamma and Kariyappa were siblings. The said Kariyappa had a son named Neeli 22 Muniswamappa, whose son was Begli Seetharamaiah. The learned counsel contended that Smt. Nagamma, under whom the plaintiffs claim, is none other than the aunt of grandfather of the defendant Nos.1 to 4, 13 to 15. He further contended that Kariyappa and Neeli Muniswamappa had established a Mutt for philanthropic purposes and Smt. Nagamma used to reside in the Mutt. The said Nagamma was buried within the precincts of the Mutt. Therefore, it was popularly called Nagamma Mutt. He further contended that the suit property is a part and parcel of land in Sy.No.63/1, which belong to Begli Seetharamaiah, who had three wives namely, Chikkamma, Tulasamma and Muniveeramma. Krishnappa is the son from his first wife Chikkamma, while the defendant Nos.1 to 4 are the sons from his third wife Muniveeramma and defendant Nos.5 to 12 are the sons of Krishnappa and defendant Nos.13 to 15 are the sons of Begli Seetharamaiah from his second wife Tulasamma. He contended that during the life time of Begli Seetharamaiah, a partition deed was entered into between him and his sons on 05.05.1975. At the said partition, 'A' 23 schedule property fell to the share of Krishnappa, 'B' schedule property fell to the share of the sons of the second wife of Begli Seetharamaiah and 'C' schedule property fell to the share of sons of Begli Seetharamaiah from his third wife. He further contended that the plaintiff No.1 is the daughter of Begli Seetharamaiah from his second wife Tulasamma, who was given in marriage to R. Parthasarathy. He, therefore, submitted that the plaintiff No.1, who was not given a share by Begli Seetharamaiah at the partition dated 05.05.1975 has come up with a false claim that they are the rightful owners of the property in question. The learned counsel therefore prayed that the appeal be dismissed.
16. I have considered the submissions made by the learned counsel for the parties. I have perused the records of the Trial Court, Judgments and Decrees of the Trial Court and First Appellate Court as well as the grounds urged by the plaintiffs in this appeal.
24
17. The Trial Court decreed the suit for declaration and injunction based on the entry of the name of the plaintiff No.2 in the Municipal records of the property in question. It also relied upon the receipts under which the plaintiff No.2 paid property tax in the name of Smt. Nagamma. It also relied upon the entry of the name of the plaintiffs in the Ration Card to hold that the plaintiffs are residing in 'Nagamma Mutt'. It highly relied upon the evidence of PW2 to PW5 to hold that the plaintiffs are in possession and are conducting Aradhanas and receiving rents from the tenants. It further held that the defendants did not establish any better title, as they failed to prove that the suit property was part and parcel of Sy.No.63/1 that was claimed by the defendants. The Trial Court held that the plaintiffs were in possession of the suit property for more than twelve years and therefore, held "that possession of the plaintiffs follows title" and consequently, decreed the suit and declared that the plaintiffs are the owners of the suit property and granted perpetual 25 injunction restraining the defendants from interfering with the possession of the plaintiffs.
18. The First Appellate Court held that the Trial Court even after framing an issue whether the plaintiffs prove their title to the suit property, did not take into account that there was no tangible evidence to establish the relationship of the plaintiffs with Smt. Nagamma and Subbadas and that they were the owners of the suit property. It also held that the plaintiffs did not establish their title to the suit property and that the judgment of the Trial Court was based on an incorrect understanding of the position of law. The First Appellate Court, hence, set aside the Judgment and Decree insofar as it related to the declaration of the title of the plaintiffs to the suit property is concerned and confirmed the Judgment and Decree of perpetual injunction, which was subject to a rider that the said decree of injunction would not come in the way of the defendants performing annual Aradhanas of Sadhus and conducting functions on special occasions. 26
19. The documentary evidence discloses that except the revenue documents such as Property Demand Register extract and Assessment extract, tax paid receipts, no document of title is marked by the plaintiffs to establish their title to the suit schedule property. PW.1, who was a star-witness in the case deposed in his cross-examination as follows:-
"CA¢£À ªÀĺÁgÁdgÀÄ ²æêÀÄw £ÁUÀªÄÀ ä£ÀªÀjUÉ zÁªÁ D¹ÛAiÀÄ£ÀÄß zÁ£ÀªÁV PÉÆnÖzÝÀ gÄÀ JA§ÄzÁV £À£Àß »jAiÀÄgÀÄ ºÉüÀÄwÛzÀÝgÀÄ. D §UÉÎ AiÀiÁªÀÅzÉà zÁR¯ÉUÀ¼ÄÀ E®è. ¸ÀzÀj D¹ÛAiÀÄ£ÀÄß CA¢£À ªÀĺÁgÁdgÀÄ £ÁUÀªÄÀ ä£ÀªÀjUÉ PÉÆlÖ ¸ÀAzÀ¨sÀðzÀ°è D D¹Û ¸ÀªÉð £ÀA§gï DVvÉÆÛà CxÀªÁ PÀȶAiÉÄÃvÀgÀ D¹ÛAiÀiÁVvÉÆÛà J£ÀÄߪÀÅzÀÄ £À£ÀUÉ ¸ÀjAiÀiÁV UÉÆwÛ®è."
20. He further deposed that;
"zÁªÁ D¹ÛAiÀÄ SÁvÉ FUÀ £ÁUÀªÄÀ ä£ÀªÀgÀ ºÉ¸Àj£À°èzÉ. PÀ¼ÉzÀ 150 ªÀµÀðUÀ½AzÀ®Æ zÁªÁ D¹ÛAiÀÄ SÁvÉ £ÁUÀªÀÄä£ÀªÀgÀ ºÉ¸Àj£À°èzÉ. ¸ÀzÀj SÁvÉ £À£ßÀ ºÉ¸ÀjUÉ §zÀ¯ÁªÀuÉ ºÉÆA¢vÀÄÛ. ¢£ÁAPÀ: 3-11-2000 zÀAzÀÄ £Á£ÀÄ CfðAiÀÄ£ÀÄß PÉÆlÄÖ D D¹ÛAiÀÄ SÁvÉAiÀÄ£ÀÄß £À£ßÀ ºÉ¸ÀjUÉ §zÀ¯ÁªÀuÉ ªÀiÁr¹PÉÆArzÉÝãÉ. zÁªÁ D¹ÛAiÀÄ SÁvÉ £À£Àß ºÉ¸ÀjUÉ §zÀ¯ÁªÀuÉ ªÀiÁr ºÉÆgÀr¸À¯ÁVzÀÝ DzÉñÀªÀ£ÄÀ ß ªÀÄĤ¹¥À¯ï 27 PÀ«ÄõÀ£ÀgïgÀªÀgÀÄ gÀzÄÀ Ý¥Àr¹zÁÝgÉ J£ÀÄߪÀÅzÀÄ ¸Àj. ¥ÀæwªÁ¢UÀ¼ÄÀ CfðAiÀÄ£ÀÄß PÉÆlÄÖ D DzÉñÀªÀ£ÄÀ ß gÀzÄÀ Ý¥Àr¹zÀgÉ£ÄÀ ߪÀÅzÀÄ ¸Àj. D DzÉñÀzÀ «gÀÄzÀÞ £Á£ÀÄ C¦Ã®£ÀÄß ¸À°è¹®è. D£ÀAvÀgÀ £Á£ÀÄ F zÁªÉAiÀÄ£ÀÄß ºÀÆrzÉ."
21. The aforesaid evidence makes it clear that the plaintiffs are unaware of the title of Nagamma to the suit property but contend that since Nagamma is buried in the suit property, it belongs to her. PW.1 further deposed that the Municipal records that stood in his name in respect of the suit property were set aside by the Municipal Commissioner. Therefore, the Municipal documents marked by the plaintiffs had no significance. Thus, the plaintiffs did not produce any material to establish that the suit property belonged to Nagamma. However, the plaintiffs and defendants are in agreement with the fact that Nagamma was buried in the Mutt and that the grave exists even as on date. This state of things coupled with revenue entries in the name of Nagamma Mutt has existed for over 150 years and none have attempted to disturb 28 this. Hence, it could be held that possessing the title of Nagamma can be presumed.
22. In so far as relationship of plaintiffs with Nagamma, it is claimed that she was married to Subbadas and their son was Ramaswamy and grandson was Parthasarathy. The plaintiff No.1 claims to be the wife, while the plaintiff Nos.2 and 4 claim to be their children. The plaintiffs were therefore bound to strictly establish the relationship of Nagamma with Subbadas and that Ramaswamy was their son. There is no documentary evidence in this regard except a family tree drawn by the Village Accountant, on the say of the plaintiffs. It is not the case of the plaintiffs that a record is maintained in the office of the Village Accountant from which he extracted the family tree. Hence, it was incumbent upon them to prove the family tree also. The oral evidence is the only tangible record concerning the relationship of plaintiffs with Smt. Nagamma. A suggestion was put to PW.1 as follows:
29
"£ÁUÀªÀÄä wÃjPÉÆAqÀÄ CAzÁdÄ 150 ªÀµÀðUÀ¼ÁVªÉ. £ÁUÀªÀÄä ºÁUÀÆ £ÀªÀÄä £ÀqÀÄªÉ AiÀiÁªÀÅzÉà jÃwAiÀÄ ¸ÀA§AzsÀ«®è J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è."
"¤±Á£É ¦.5 zÁR¯ÉAiÀÄ£ÀÄß ºÉÆgÀvÄÀ ¥Àr¹ £ÁUÀªÄÀ ägÀªÀgÄÀ ¸ÀħâzÁ¸ï gÀªÀgÀ£ÀÄß ªÀÄzÀĪÉAiÀiÁVzÀÝgÄÀ ªÀÄvÀÄÛ CªÀgÀÄUÀ½UÉ gÁªÀĸÁé«Ä JA§ ªÀÄUÀ EzÀÝ JA§ÄzÀ£ÄÀ ß vÉÆÃj¸À®Ä £À£ßÀ §½ ¨ÉÃgÉ AiÀiÁªÀÅzÉà zÁR¯ÉUÀ¼ÀÄ E®è."
23. PW.3 who is the son-in-law of Begli Seetharamaiah deposed as follows:
"£Á£ÀÄ ºÉüÀĪÀAvÀºÀ £ÁUÀªÄÀ ä£ÀªÀjUÉ ªÀÄzÀĪÉAiÀiÁVvÉÆÛà CxÀªÁ E®èªÉÇà £À£ÀUÉ w½¢®è. £ÁUÀªÄÀ ä£ÀªÀgÀ CtÚ PÀjAiÀÄ¥Àà J£ÀÄߪÀÅzÀÄ £À£ÀUÉ w½¢®è."
24. Though DWs.2 and 3 deposed that Nagamma was not married to Subbadas, their evidence is not trustworthy.
25. PW.1 admitted relationship of plaintiff No.1 with Begli Seetharamaiah as follows:
"1£Éà ªÁ¢ ¨ÉVè ¹ÃvÁgÁªÀÄAiÀÄå ºÁUÀÆ vÀļÀ¸ÀªÄÀ ä£ÀªÀgÀ ªÀÄUÀ¼ÀÄ. 1£Éà ªÁ¢AiÀÄ£ÀÄß ¥ÁxÀð¸ÁgÀy JA§ÄªÀªÀjUÉ ªÀÄzÀÄªÉ ªÀiÁrPÉÆqÀ¯ÁVzÉ J£ÀÄߪÀÅzÀÄ ¸Àj. ¸ÀzÀj ¥ÁxÀð¸ÁgÀy 30 PÉfJ¥sï£À HjUÁA¥ÉÃmÉAiÀÄ ªÁ¹ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. 1£Éà ªÁ¢ £À£Àß vÁ¬Ä. ¸ÀªÉð £ÀA.63-1 gÀ°è £À£Àß vÁ¬ÄUÉ AiÀiÁªÀÅzÉà ¥Á®£ÀÄß PÉÆnÖgÀ°®è J£ÀÄߪÀÅzÀÄ ¸Àj. zÁªÁ D¹Û «¨sÁUÀzÀ°è §AzÀ D¹ÛAiÀÄ®è §zÀ¯ÁV CzÀÄ »jAiÀÄjAzÀ £ÀªÄÀ UÉ §AzÀAvÀºÀ D¹ÛAiÀiÁVzÉ."
26. In the plaint it is averred as follows:
"3. One Begli Seetharamaiah had 3 wives. One Krishnappa was the son of the said Begli Seetharamaiah through his first wife-Chikkamma. The defendants 5 to 12 are the sons of the said Krishnappa. The defendants 1 to 4 are the sons of the aforesaid Begli Seetharamaiah through his IIIrd wife Muniveeramma. The defendants 13 to 15 are the sons of Begli Seetharamaiah through his IInd wife Tholasamma."
27. It is, therefore, certain that the plaintiffs are in someway related to the defendants. The Commissioner, who was appointed by the Court was unable to point out whether the suit property lay within the limits of Sy.No.63/1 and in the absence of any material to establish the same, it is difficult for this Court to return any finding in that regard.
31
28. Be that as it may, the learned counsel for the plaintiffs contended that under Section 110 of the Evidence Act, there is a presumption that the person in possession of the property is the owner unless the contra is established. In the case on hand, the plaintiffs did enter the witness box but did not provide convincing documentary evidence regarding their title to the suit property. The presumption under Section 110 of the Evidence Act was substantially rebutted by the deposition of PW.1, who admitted that except the family tree, there was nothing to prove the relationship. Further, plaintiff No.1 was the daughter of Begli Seetharamaiah, while the defendant Nos.1 to 4 and 13 to 15 are the sons of Begli Seetharamaiah. Therefore, the plaintiffs were not entitled to seek for any declaration of their title to the suit property as against the defendants. The First Appellate Court took note of these inadequacies in the case of the plaintiffs and rightly refused to grant the relief of declaration. 32
29. However, having regard to the evidence of defendants that the plaintiffs were performing the Aradhanas in the Mutt and were collecting the rents from the tenants coupled with the documents such as Ration Card at Ex.P23 and the evidence of the tenants namely PWs.2 and 5 as well as a devotee PW.3 established the possession of the plaintiffs and the First Appellate Court was therefore justified in affirming the decree for perpetual injunction.
30. It is pertinent to note that the graves of Smt. Nagamma and other Sadhus in the suit property are deified and it is not in dispute that the regular Aradhanas are performed. The defendants have not established that they ever performed any Aradhanas or rituals in the suit property. PWs.2, 3 and 4 who are residents of the village have all spoken about the plaintiffs performing the Aradhanas and other rituals in the Mutt. Though DW.1 in his chief examination claimed that the defendants are 33 performing the activities in the Mutt but in the cross- examination, he deposed :
"PÀjAiÀÄ¥Àà ªÀÄvÀÄÛ ¤Ã° ªÀÄĤ¸ÁéªÄÀ ¥Àà gÀªÀgÄÀ ¸ÉÃj ªÀÄoÀzÀ°è DgÁzsÀ£É £ÀqɸÄÀ wÛzÝÀ gÉA§ÄzÀ£ÄÀ ß vÉÆÃj¸À®Ä AiÀiÁªÀÅzÉà zÁR¯ÉUÀ½®è. £Á£ÁUÀ°Ã, £À£Àß vÀAzÉAiÀiÁUÀ°Ã £ÁUÀªÀÄä£À ªÀÄoÀzÀ°è DgÁzsÀ£ÉAiÀÄ£ÀÄß £ÀqɸÀÄwÛzÉݪÉAzÀÄ vÉÆÃj¸À®Ä AiÀiÁªÀÅzÉà zÁR¯ÉUÀ½®è."
31. He did not dispute the fact that regular Aradhanas are conducted in the Mutt. he also did not dispute the fact there were tenants occupying shops belonging to the Mutt. This was accentuated by DW.2 who deposed as follows:
"¥Àæw ªÀµÀð £ÁUÀªÄÀ ä£ÀªÀgÀ ªÀÄoÀzÀ°è DgÁzsÀ£ÉUÀ¼ÀÄ £ÀqÉAiÀÄÄvÀÛªÉ. ¸ÀzÀj DgÁzsÀ£Á PÁAiÀÄðPÀæªÄÀ ªÀ£ÄÀ ß ªÁ¢UÀ¼ÀÄ ªÀÄoÀzÀ°èzÀÄÝPÉÆAqÀÄ £ÀqɸÄÀ wÛzÁÝgÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ªÀÄoÀzÀ°è ¨ÁrUÉzÁgÀjzÁÝgÉ ªÀÄvÀÄÛ CªÀjAzÀ ¨ÁrUÉ ªÀ¸ÀÆ°AiÀiÁUÀÄwÛzÉ ªÀÄvÀÄÛ D ºÀtªÀ£ÀÄß ªÁ¢UÀ¼ÄÀ ¥ÀqÉzÄÀ PÉƼÀÄîwÛzÁÝgÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. £À£Àß ¥ÀæPÁgÀ DgÁzsÀ£Á PÁAiÀÄðPÀæªÄÀ ªÀ£ÄÀ ß ¨sÀPÁÛ¢UÀ¼ÄÀ £ÀqɹPÉÆAqÀÄ §gÀÄwÛzÁÝgÉ."34
32. PW.3 deposed as follows:
"£Á£ÀÄ ºÉýzÀ ¥ÀæPÁgÀ PÀjAiÀÄ¥Àà£ÁUÀ°Ã, ©Vè ¹ÃvÁgÁªÀÄAiÀÄå£ÁUÀ°Ã CxÀªÁ ¸ÀzÀj ªÀÄĤ±ÁªÀÄ¥Àà£ÁUÀ°Ã DgÁzsÀ£Á PÁAiÀÄðPÀæªÄÀ UÀ¼À£ÄÀ ß £ÁUÀªÄÀ ä£À ªÀÄoÀzÀ°è £Àqɹ®è."
33. DW.2 deposed as follows:
"£À£Àß ¥ÀæPÁgÀ DgÁzsÀ£Á PÁAiÀÄðPÀæªÄÀ ªÀ£ÄÀ ß ¨sÀPÁÛ¢UÀ¼ÄÀ £ÀqɹPÉÆAqÀÄ §gÀÄwÛzÁÝgÉ."
34. The oral evidence therefore supports the claim of the plaintiffs that regular Aradhanas and other ceremonies are performed in the mutt, but since the defendants did not establish that they were performing the said Aradhanas, having regard to the fact that the plaintiffs are residing in the mutt and they are collecting the rents from the tenants, it is probable that the said Aradhanas and other ceremonies are performed by the plaintiffs. Therefore, the judgment and decree for the First Appellate Court granting perpetual injunction to the plaintiffs cannot be disturbed. However, permitting the defendants to "perform annual Aradhanas of Sadhus and conducting 35 functions on special occasions" deserved to be dissolved as no counter claim was raised by them and no relief was sought for. Thus, granting relief to the defendants to perform Aradhanas and other ceremonies would result in undermining the relief of perpetual injunction granted to the plaintiffs. At the same time, having regard to the fact that "Nagamma Mutt" is endowed to the public, the defendants can also enter the Mutt to pay respect to the Samadhis, without causing any nuisance to the other devotees and the organisers.
35. In view of the above, the substantial questions of law are answered in the favour of the plaintiffs and against the defendants.
36. In that view of the matter, this appeal is allowed-in-part. The judgment and decree of the First Appellate Court in so far as dismissing the suit of the plaintiffs for declaration of title is upheld. However, the judgment and decree of perpetual injunction granted by the First Appellate Court in R.A.No.120/2007 is modified 36 and it is declared that the plaintiffs are entitled to perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of Nagamma Mutt property by the plaintiffs. The defendants may pay their obeisance at the grave of Smt. Nagamma and other Sadhus at Nagamma Mutt and participate in Aradhanas but shall not interfere with the right of the plaintiffs to perform poojas and Aradhanas in Nagamma Mutt by collecting the rent from the tenants.
Parties to bear their own costs.
Sd/-
JUDGE PMR