Sri Neelakanta Shivacharya Swamijee vs Sri K N Rudrappa on 6 October, 2010

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Karnataka High Court

Sri Neelakanta Shivacharya Swamijee vs Sri K N Rudrappa on 6 October, 2010

Bench: Anand Byrareddy

 A gas'

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 06"' DAY OF OCTOBER, 2d()fm"%«.D[dD

BEFORE

THE HON'BLE MR. JUSTICE A.-N}'i\N«D  A

REGULAR SECOND APPEALd:«e»zo;1722 D'F,@20o9 A 
BETWEEN: A A A 

Sri. Neelakanta Shivacha1"\;{2'1'~w.-SWaimijede'; .,_ , 
Aithandahal1iJangam.a Mud;  *  f  .. 
Aithandahallivillage, " V' '
Kasaba Hobli, A        
Bangarpet"£'a1u1<.:,  _ _      

KD1ar--563        ...APPI-ELLANT

(By Shriv.'VM'  ' A
AND: A A   A 

I.  _K.N.x R.u"dr'a'ppaV'
 'S./Q Naujappzi;  _____ .. c
« _ "Aged a.bD1J_t 76 years,
~  at Aithandahalli viiiage,
._ "-'.__Baf:gEufpet...Td1uk,
'  K0l;1_1f¥§6d3 114.

 Mariswamaiah
. A 'D--.S'/0 Basavaiah
"  Aged about 62 years,
GPA H<}lde:'0fJar1gama Mutt,
Residing at Aithandahalﬁ,

2



Bangarpet Taluk,
Kola: -- 563 114.

3. Sri. Sampath Kumar
S/0 Gurulingappa,
Age Major,
Residing at Karikere village,
Robertsonpet Hobli,
Bangarpet Taluk,
Kolar -- 563 114.

4. Sri. B. Veerabhadrappa
S/0 Basappa,  _
Residing atAithanda.hallivi1lanre;= 0' _
BangarpetTalL1k, '     V  "  
K0lar--~ 563 114.  ' "  *

5. Sri. Venkateshappa  I V 
S/0 Venkatara:jn'a;3appa,':- _  
Age    

Residing at Hij;2;iKunda"'V?iI1age
& Post, Ban garpet' T a'i~;.1l_<;'. 

Kolar 4;5§3,j1 14.    . ...RESPONDENTS
..---(By  V Ba;s'ava_raj«' v. Sabarad, Advocate for

 Caveateaf/Re'sp_endent No.2, Shri. K. Ravishankar, Advocate for

'Resp0'1ic1e23t Q I U ..

   is filed under section 100 of Code of Civil

 Pr0ced"ure,"-.0 1908 against the judgment and decree dated

 .f4,.09.2009 'passed in R.A.N0.l5l/2002 on the file of the

 Atdditvional Civil Judge (Sr.Dn), K.G.F., allowing the appeal and

0  sxetting aside the judgment and decree dated 18.04.2002 passed in

2  «.O.S;--jN0i265/1992 on the file of the 1" Additional Civil Judge
  .(J_r,§n), KGF.

Z



This appeal coming on for Orders this day, the "Court
delivered the following: - 7 

JUDGMENT

Heard the learned counsel for the appel:la.nt':.i.af11d the, respondents.

2. The substantial quesgt:i.on of~that would arislelfo-rl"wig consideration is:~ ._ _ _ 2 "Whether Vtlriex loweti"'a'pp'ellate_ Court ' was justified in proceedi'n_g~ tos.dlecree'the.VVsuist while allowing the app'l'ic'at_ion "fo'r__ anienldrnent to »v thaitilr C the ' «dféroperties belonged to Kkithandaha llii "Jan Mutt?"

The answer straiight away_woii.ld be that the lower appellate Court .---.was n_ot1:ja:s_t'i'r"ised in" "no.t.___relegating the parties to the trial Court as an adld'itio"r1_alrissue'-.arose for consideration, which had to go to trial."{llherefore:;..V_tli:e lower appellate Court summarily allowing the amendmenttend also decreeing the suit results in the proceedings bei,.11'J. short-circuited.

_ V 1::

3. To briefly narrate the facts» The plaintiffs had ﬁled a suit for permanent .ijr1juneti--on restraining the defendants from disposing of the-jsuit..sC'he'dtile V' properties. It was claimed that plaiintiffsp iyereljideyotees Ithandahalli J angarna Mutt and they areilmerniaers The suit was being presented inka"representative eapacity on behalf of the devotees ofjjppthe Jangama Mutt is said to be__a braaesheiolfe Srishaila Maha Samasthana, thse granted the suit propertiesni rnaintenance and support.

The in' addition to the lands given to it.

The lands are4.une,nfra.ne'hisedﬁwith no right to dispose of the same " = fat/:(i'«!.1rE(_):f any persons... «The first defendanbappellant, seeking to "Sswa.iriije'eAe:of. the said Mutt did not have any right or interest in tl:ellipropel11j{_.*ilt was alleged that revenue entries and revenue d.ocumei1tS_l1were surreptitiously changed in his personal name and _had--.m.ade an attempt to dispose of and alienate the properties, ' = which warranted the filing ofgg suit.

The first defeadant--appellant herein having entered appearance filed written statement denying the allegatia,n's._ia-nd questioned the maintainability of the suit. While ' that Ithandahalli Eangama Mutt was a:~b'rai*i€h of S.riil\li'if11n1afnaG.i, Srishaila Maha Samasthana, Gulur, it was "c1_aimed'_t_hat». inso15a1:_as._VV the suit schedule properties were""concerned;ﬂiey}were his V personal properties and didiiot further stated that the land was not but, it was Inam land of provisions of The Mysore(Persorial Abolition Act, 1954, the 'had been granted the lands and he was in posslessiion of the "s»a.i.i'ie by virtue of grant of occupancy '3I'__iherefore',l"'tbeplaintiffs had no right to question the by the first defeadant--appel1ant.

i' Court after a trial held in favour of the first defendantgappellant herein, against which an appeal was preferred _ and -inithe appeal, the piaintiffs chose to seek an amendment of the 8 prayer to include the relief of declaration that the property did not belong to defendant. No.3, but it actually belonged to the Mutt. The same having been allowed the lower appellate Co1i:rt._ia],vso thought it fit to decree the suit without any furtheradt). resulted in the present appeal.

4. The learned counse1~,..for_gthe.iap_pell_ant: woiild "assert". that the appellant was the~..absol~:1't'e=ov.rner_of property. Even if it could be challenged'by'jv'iirtue__.oif'tleideclaration having been sought, the're'fgv:a's needafor ~.t.ri.3.l of additional issues that didlgarise. 'adopted by the lower appellate Court was therefore nolt'.coat_e'mplated in law and is in violation of < the prescrib_e_d-vln that, the lower appellate Court having the application and also having decreed the suit ,witho;rt'iai.V_full ﬂedged trial that was necessary to address the l'-issues th.at'i- arose, there is no hesitation in holding that a serious l'€"1'i"'0,r been committed by the lower appellate ﬁourt in proceeding it has. Therefore, it would not even be necessary to € frame any substantial question of law to admit the appeal and thereafter to hear the matter at length.

5. A plain reading of the juclgrneiit y_w'louI.dl:di'sc_loVse7~'the". error and impropriety committed. by the lower appelplate One other aspect, which would alsou'i*eVtjui.re tolbe_ addressed, is that though the suit was filed in ;._£3..."iT.6pI'ie;S€l1Ti£lli\{€. Vvicapacity claiming that the property belongs to Niiiti; the Mutt is significantly ngt .21 _VThe is only named as Swamiji of _that"Mutt«:.;§:houg_h independent interest in the said 'it is necessary to implead ithandahalli J Sri.Nirurna:madi Srishaila Malia

-"'Samas'th:anai,' G_pulu1',h"asv.parties ---~ either as plaintiffs or defendants, lsvincelitis that Ithandahalli Jangarna Mutt is only a branch ' ii of iruhzaraadi Srishaila Maha Sarnasthana, Gulur. Z

6. Accordingly, the present appeal is allowed. The substantial question of law framed is answered in favour of the appellant. The judgment and decree of the lower appellate~.C'ourt insofar as it decreed the suit is set aside. The§"auit:iT'sh'aiil remanded to the trial Court after thevanie-n.drnc';nt the i*el_ief "of declaration as sought for and the '~ltli.an:lla~haili_V Jangama Mutt and Sri. Nirumamadi"Srisha1la_MahaSarnasthanailV Gulur, shall be made parties to_"the'Vis*ui_t either inltheilcapacity of plaintiffs or defendants and' t.he.v'l__lsLiit proceeded after framing of that rn_ay_Varis'e"i'n the discretion of the trial Court. The ..the trial Court shall be taken up from the stagelV'o«f.Vf1'a.rr1iughaddition_al issues. .....

Judge

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