Karnataka High Court
Gurunathappa S/O Tirakappa Hadapad vs Shrikant S/O Bharalingappa Hadapad on 5 September, 2023
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MSA No. 654 of 2013
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS SECOND APPEAL NO. 654 OF 2013 (RO-)
BETWEEN:
1. GURUNATHAPPA S/O TIRAKAPPA HADAPAD,
SINCE DECEASED BY HIS LEGAL HEIRS
1(a) SMT. GOURAMMA W/O. GURUNATHAPPA HADAPAD,
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
R/O. MAILAR, TQ: HUVINAHADAGALI-583219,
DIST. BALLARI.
1(b) TIRAKAPPA S/O. GURUNATHAPPA HADAPAD,
AGE: 50 YEARS, OCC: BARBER,
Digitally signed
R/O. MAILAR, TQ: HUVINAHADAGALI-583219,
by
SHIVAKUMAR DIST. BALLARI.
SHIVAKUMAR HIREMATH
HIREMATH
Date:
2023.09.30
12:02:41 +0530 1(c) PRAKASH S/O. GURUNATHAPPA HADAPAD,
AGE: 40 YEARS, OCC: BARBER,
R/O. MAILAR, TQ: HUVINAHADAGALI-583219,
DIST. BALLARI.
1(d) NINGARAJ @ NINGAPPA S/O. GURUNATHAPPA HADAPAD,
AGE: 38 YEARS, OCC: BARBER,
R/O. MAILAR, TQ: HUVINAHADAGALI-583219,
DIST. BALLARI.
1(e) RAVINDRA S/O. GURUNATHAPPA HADAPAD,
AGE: 36 YEARS, OCC: BARBER,
R/O. MAILAR, TQ: HUVINAHADAGALI-583219,
DIST. BALLARI.
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MSA No. 654 of 2013
1(f) SRINIVAS S/O. GURUNATHAPPA HADAPAD,
AGE: 34 YEARS, OCC: BARBER,
R/O. MAILAR, TQ: HUVINAHADAGALI-583219,
DIST. BALLARI.
1(g) KALAMMA @ KAMALAVVA W/O. DEVAPPA HADAPAD,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O. NEGLUR, TQ: HAVERI-581110, DIST. HAVERI.
1(h) IRAMMA @ RENUKAVVA W/O. FAKKIRESH HADAPAD,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O. HIREMARALIHALLI, TQ: SAVANUR-581118,
DIST. HAVERI.
2. PRAKASH S/O NINGAPPA HADAPAD,
AGE: 42 YEARS, OCC: BARBER,
R/O: MAILAR, TQ: HUVINHADAGALI,
DIST: BELLARY.
...APPELLANTS
(BY SRI. S. N. BANAKAR, ADVOCATE)
AND:
1. SHRIKANT S/O BHARALINGAPPA HADAPAD,
AGE: 30 YEARS, OCC: BARBER,
R/O: MAILAR, TQ: HUVINAHADAGALI,
DIST: BELLARY.
2. SANTOSH S/O BHARALINGAPPA HADAPAD,
AGE: 27 YEARS, OCC: BARBER,
R/O: MAILAR, TQ: HUVINAHADAGALI,
DIST: BELLARY.
3. VIRUPAKSHA S/O BHARALINGAPPA HADAPAD,
AGE: 24 YEARS, OCC: BARBER,
R/O: MAILAR, TQ: HUVINAHADAGALI,
DIST: BELLARY.
4. MALTESH S/O NINGAPPA HADAPAD,
AGE: 38 YEARS, OCC: PRIVATE. EMPLOYEE,
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MSA No. 654 of 2013
R/O: C/O: TUNGABHADRA RAITHARA NOOLINA
GIRANI, HANUMANAMATTI,
TQ: RANEBENNUR, DIST: HAVERI.
5. ASHOK S/O NINGAPPA HADAPAD,
AGE: 37 YEARS, OCC: BARBER,
R/O: MAILAR, TQ: HUVINAHADAGALI,
DIST: BELLARY.
6. PRABHU S/O NINGAPPA HADAPAD,
AGE: 27 YEARS, OCC: BARBER,
R/O: MAILAR, TQ: HUVINAHADAGALI,
DIST: BELLARY.
7. LAXMAN S/O NINGAPPA HADAPAD,
AGE: 25 YEARS, OCC: BARBER,
R/O: MAILAR, TQ: HUVINAHADAGALI,
DIST: BELLARY.
8. RAJASHEKHAR @ RAJAPPA S/O RUDRAPPA HADAPAD,
AGE: 37 YEARS, OCC: BARBER,
R/O: MAILAR, TQ: HUVINAHADAGALI,
DIST: BELLARY.
9. NINGAPPA S/O RUDRAPPA HADAPAD,
AGE: 27 YEARS, OCC: BARBER,
R/O: MAILAR, TQ: HUVINAHADAGALI,
DIST: BELLARY.
10. RAMESH S/O BASAPPA HADAPAD,
AGE: 32 YEARS, OCC: BARBER,
R/O: MAILAR, TQ: HUVINAHADAGALI,
DIST: BELLARY.
11. GIRISH S/O BASAPPA HADAPAD,
AGE: 30 YEARS, OCC: BARBER,
R/O: MAKARI, TQ: HIREKERUR,
DIST: HAVERI.
12. SHASHIDHAR S/O BASAPPA HADAPAD,
AGE: 25 YEARS, OCC: BARBER,
R/O: MAKARI, TQ: HIREKERUR,
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MSA No. 654 of 2013
DIST: HAVERI.
13. PRASHANT S/O SHEKHAPPA HADAPAD,
AGE: 24 YEARS, OCC: BARBER,
R/O: MAILAR, TQ: HUVINAHADAGALI,
DIST: BELLARY.
14. SRI.SRI.SRI. GURU VENKAPPAIAH OVDEYAR SWAMIGALU,
AGE:44 YEARS, OCC:MAIN PRIEST,
SRIMAN MAHA KAPILA MUNI SIMHASANADHISHWARARU,
ADHYATHMIKA GURUVARYARU,
SRI MAILARA LINGA SWAMY TEMPLE, MAILAR,
TQ: HUVINAHADAGALI,
DIST: BELLARY.
15. THE ADMINISTRATIVE OFFICER,
SRI. MAILARA LINGA SWAMY TEMPLE COMMITTEE,
MAILAR, TQ: HUVINAHADAGALI,
DIST: BELLARY.
...RESPONDENTS
(BY SRI. GODE NAGARAJ, ADVOCATE FOR R1 TO R13;
NOTICE TO R14 AND R15 IS SERVED)
THIS MISCELLANEOUS SECOND APPEAL IS FILED U/O. 43
RULE OF (U) OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:
03.08.2013 PASSED IN R.A.NO. 8/2012 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND JMFC., HOSPET, ALLOWING
THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DTD:
06.01.2012 PASSED IN O.S. NO. 13/2009, ON THE FILE OF THE
CIVIL JUDGE AND JMFC COUR, HUVINAHADAGALI, DECREEING THE
SUIT FILED FOR PERMANENT INJUNCTION.
THIS MISCELLANEOUS SECOND APPEAL, COMING ON FOR
FURTHER SUBMISSIONS, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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MSA No. 654 of 2013
JUDGMENT
The present appeal is filed under Order 43 Rule 1(U) of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') challenging the judgment dated 03.08.2013 passed in R.A.No.8/2012 by the Prl. Senior Civil Judge, JMFC, Hospet (hereinafter referred as first appellate Court).
2. Parties would be referred to as per the rank before the trial Court.
3. The plaintiffs who are the appellants in the present appeal instituted a suit in O.S.No.13/2009 seeking for permanent injunction. It is the case of the plaintiffs that they are barbers by profession and are engaged in carrying out tonsure to the pilgrims and devotees who visit Mylarlinga Temple at Mylar by obtaining permission from 14th defendant. The first plaintiff is doing the said ceremony along with his sons. It is the further case of the plaintiffs that the defendant No.15 is Administrative Officer of the Mylarlinga Temple and defendant No.14 is the -6- NC: 2023:KHC-D:10791 MSA No. 654 of 2013 Temple administrator who got the right from the ancestors to give receipts to the pilgrims for tonsure ceremonies.
4. It is the further case of the plaintiffs that the plaintiff No.1 and grandfather of the plaintiff No.2 had obtained permission letter from Swamiji of the Temple that the defendants No. 1 to 13 have not obtained any permission from defendant No.14 and without having any right are obstructing the plaintiffs for doing tonsure ceremonies to the pilgrims in the Temple and also on the bank of Tungabhadra river. It is the case of the plaintiffs that the defendants No.1 to 13 having obstructed the plaintiffs from doing tonsure ceremonies to the pilgrims who visit the Temple and the plaintiff No.1 having given an application along with the permission letter issued by the ancestors of defendant No.14 and the defendant No.14 having given an endorsement and also permission letter, defendants No.1 to 3 having continued to interfere with the work of the plaintiffs, they are constrained to file a suit for injunction.
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5. The defendants No.1 to 13 entered appearance through their counsel. Defendant No.6 filed written statement which is adopted by the defendants No.1 to 3, 4, 7, 9 to 13. Defendants No.14 and 15 have filed a separate written statement. The contention of the private defendants are that the defendant No.14 is not having authority to give permission for conducting tonsure ceremony in the Temple premises and defendant No.15 being the representative of the State and Executive Officer is only authorized to take decision to permit them to conduct tonsure ceremonies. The further contention of the defendant No.6 is that the Mandal Panchayat had permitted them to conduct tonsure ceremonies on the bank of the river since the said area comes under the jurisdiction of the Gram Panchayat and only Gram Panchayat has authority to issue permission to do the work and said area does not come within the administrative area of defendants No.14 and 15. The said defendant also denied the case of the plaintiffs that the defendant No.14 had given permission to plaintiffs for -8- NC: 2023:KHC-D:10791 MSA No. 654 of 2013 more than 50 years. It is the further case of the defendants that they did not obstruct the plaintiffs in discharging the duties and that the plaintiffs by colluding with the defendant No.14 have filed the present suit. The defendants have also contended that they have right of doing tonsure ceremony of the devotees in the Temple on the bank of river from the time immemorial and prayed for dismissal of the suit.
6. The defendant No.14 has filed separate written statement contending that he is discharging his duties as Temple Representative as per the judgment passed by the Prl. District and Sessions Judge, Ballari in O.S.No.20/1929 dated 12.08.1933. The defendant No.14 has denied the fact that himself and his ancestors have not given permission to the defendants No. 1 to 13 conduct the tonsure ceremony to the devotees and it is the personal right of the Temple and Administrator to permit the plaintiffs for doing tonsure ceremonies and accordingly plaintiffs are discharging their tonsure duties to the devotees.
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7. Defendant No.15 has filed written statement contending that he is the Administrative Officer of the Temple and admitted that the defendant No.14 is alone having right in the religious activities in the Temple and he has not obstructed the plaintiffs.
8. Based on the pleadings of the parties, the trial Court has framed 4 issues. The plaintiff No.1 has examined himself as PW-1. Since he suffered paralysis, he tendered cross-examination through his son as GPA holder and Exs.P-1 to P-305 were marked in evidence. Two witnesses have been examined as PW-2 and PW-3. But PW-3 has not subjected for cross-examination. Defendant No.14 was examined as DW-1. Defendant No.7 has examined himself as DW-2 and 3 witnesses were examined as DW-3 to DW-5. Exs.D-1 to D-20 were marked in evidence.
9. The trial Court after considering the oral and documentary evidence on record, decreed the suit of the plaintiffs. Being aggrieved, defendants No.1 to 11 and 13
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NC: 2023:KHC-D:10791 MSA No. 654 of 2013 preferred R.A.No.8/2012. The said appeal was contested by the plaintiffs.
10. The appellate Court upon consideration of the contentions put forth in the appeal framed 6 points for consideration. The first appellate Court by its judgment dated 03.08.2013, allowed the appeal and passed the following order:
"The present Regular appeal filed by the appellants/defendants is allowed.
The judgment and decree under challenge dated 6.1.2012 passed by the Civil Judge & JMFC, Huvina Hadagalli, in O.S. No. 13/2009 stand set aside.
Matter is remanded back to the trial court for further trial with following directions:-
1) The trial court shall restore the suit to its original number.
2) After receipt of file, court shall issue notice to the both parties for appearance. After such appearance, the plaintiffs shall be permitted to take necessary amendments to the suit for inclusion of declaratory relief and Injunction.
3) Thereafter, plaintiffs shall be permitted to include Local Panchayath Authority as defendants as formal parties, After Filing of written statement and additional written
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NC: 2023:KHC-D:10791 MSA No. 654 of 2013 statement (if any) court shall frame fresh issues.
4) Thereafter trial court shall give equal opportunities to the parties to adduce further oral and documentary evidence and dispose of the matter in accordance with law.
Both parties are directed to bear their own cost.
Send a copy of this Judgment to the trial court alongwith LCR."
11. Being aggrieved, the present second appeal is filed.
12. This Court vide order dated 3.01.2014 admitted the above appeal and framed the following substantial question of law for consideration:
1. "Whether the First Appellate Court is justified in remanding the matter to the trail court with a direction to give an opportunity to the plaintiffs for effecting necessary amendment to seek the relief of declaration of title and also to make jurisdictional Panchayat as a party to the suit?
2. Whether the First Appellate Court is justified in remanding the matter, in view of specific finding in paragraphs 41 and 42 found in the impugned
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NC: 2023:KHC-D:10791 MSA No. 654 of 2013 judgment of the impugned judgment of the First Appellate Court?"
13. Learned counsel for appellants vehemently contended that the order of remand passed by the first appellate Court is erroneous and the parties having put forth the contention before the trial Court and relevant issues having been framed as well as the oral and documentary evidence having been adduced, the first appellate Court ought to have adjudicated the appeal on its merits. He further contended that the order passed by the first appellate Court is superfluous and same is liable to be interfered with in the present appeal.
14. Per contra, learned counsel for respondents justifies the order of remand and submits that the first appellate Court having meticulously re-examined the oral and documentary evidence was justified in passing the order of remand. Learned counsel further submits that it is open for the plaintiffs to prove their entitlement before
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NC: 2023:KHC-D:10791 MSA No. 654 of 2013 the trial Court and hence, question of interference of remand does not arise.
15. I have considered the submissions made by both the learned counsel and perused the records.
16. The first appellate Court upon a re- consideration of the contentions put forth in the appeal, framed the following points for consideration:
1. "Does appellants proves that, plaintiffs ought to have filed a suit for declaration of right and for Injunction?
2. Does the Panchayath Authorities are necessary parties to the suit?
3. Does relief of Injunction sought by the plaintiffs is confusing one and not enough to meet the suit purpose?
4. Does Judgment and decree under challenge is perverse, capricious and not in accordance with law, therefore need to be interfered with?
5. What is the appropriate decision?
6. What Order?"
17. The first appellate Court while considering point No.1 recorded the following findings:
i) It is an undisputed fact that, the plaintiffs and defendants No.1 to 13 are barbers by profession. It is immaterial whether they belong to same family or
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NC: 2023:KHC-D:10791 MSA No. 654 of 2013 not. What is important in the case on hand is whether plaintiff proves that they have got hereditary right to discharge the yele kathri or cutting baby hairs or javala ceremonies. They further to prove that the defendant No. 14 office has got unfettered right to authorize plaintiffs alone to discharge yele kathni or cutting baby hairs or javala ceremonies.
ii) It is matter of record that the District & Sessions Court, Bellary, way back in the year 1933 has passed a Judgment in O.S.No.20/1929 and held that certain pooja ceremonies being conducted in the temple are in fact income earning factors and income earned from those works shall be the property of the temple. Among several items of pooja ceremonies, yele kathni or cutting baby hairs or javala ceremonies is one of them. No where, in the Judgment of the Hon'ble District Court says that the defendant No.14 office was got such a right to give a hereditary right to the plaintiffs ancestors or plaintiffs for yele kathri or cutting baby hairs or javala ceremonies. The Commissioner for Hindu Religious and Charitable Endowments Department, Bangalore, simply passed an order that in view of the prevailing documents from beginning in favour of the plaintiff at present they can be permitted to do the work of yele kathri or cutting baby hairs or javala ceremonies. These orders never says or declares that the plaintiffs have got hereditary right of yele kathri or cutting baby hairs or javala ceremonies from the ancestors from the office of the defendant No. 14.
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iii) A careful perusal of the above said provision, it is obvious that, if the right or legal character or status of any person has been denied by the other side, then a relief of declaration has to be sought.
18. The first appellate Court while considering the point No.1 recorded the finding as noticed above and has noticed that the hereditary right sought to be claimed by the plaintiffs itself having been disputed, before any order of injunction could be granted, having regard to Section 34 of the Specific Relief Act, the plaintiffs ought to seek for suitable declaration as to the hereditary right and if only the declaration is to be granted, consequential relief of injunction also be ordered upon.
19. The first appellate Court while considering the point No.2, framed for consideration has recorded the following findings:
i) The fact and circumstances presented before me clearly establish that, in two parts of Mylar village, vole kathni or cutting baby hairs or javala ceremonies taking pace. One is at the vicinity of the temple and another is at the bank of the river.
It is further brought to the my notice that apart
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NC: 2023:KHC-D:10791 MSA No. 654 of 2013 from yele kathri or cutting baby hairs or javalá, some elder persons also sacrificing their head hairs. These two works are distinct and independent one. The defendants contends that with the permission of the panchayath authority, they are discharging the barber work at the bank of the river as because bank of the river coming under the jurisdiction of Panchayath Authority. Therefore, in my considered opinion, the Panchayath Authority is necessary party to the suit to discharge the matter in controversy. Hence, Point No.2 for consideration is answered in the Affirmative."
20. It is clear from the said finding that the first appellate Court having noticed the nature of relief sought for by the plaintiffs in the suit, noticed that the plaintiffs have sought for the relief to discharge their tonsure activities on the bank of the river which comes under the jurisdiction of Panchayat authorities. Hence, the said relief cannot be granted without the authority being made party to the proceedings.
21. This Court has framed two substantial questions of law so as to ascertain as to whether the finding recorded by the first appellate Court is just and proper. In
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NC: 2023:KHC-D:10791 MSA No. 654 of 2013 view of the reasoning that is set out by the first appellate Court as noticed above and having regard to the nature of the relief sought and the contentions of the rival parties to the suit, the judgment of the first appellate Court is just and proper and not liable to be interfered with in the present appeal. Hence, the substantial questions of law framed for consideration are answered in the negative and against the appellants.
22. In view of the aforementioned, the present appeal is dismissed as being devoid of merits.
(Sd/-) JUDGE NAA List No.: 1 Sl No.: 87