Karnataka High Court
Ogeppa And Three Others vs Sahebagouda And Others on 4 October, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 4th DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
RSA.Nos.709/1990 C/w 708/1990
RSA No.709/1990
BETWEEN:
1 SRI OGEPPA
S/O SIDDAPPA BIRADAR WADEYAR
SINCE DECEASED BY HIS LR
REPRESENTED BY APPELLANT NO.4
2 SRI AMASIDDAPPA
S/O TOPAGEPPA BIRADAR
AGE: 49 YEARS, R/O ARAKERI
TQ & DIST: BIJAPUR
3 SRI AMASIDDAPPA
S/O SHIVALINGAPPA BIRADAR
WADEYAR, AGE: 49 YEARS
R/O ARAKERI,
TQ & DIST: BIJAPUR
4 SRI SIDDAPPA
S/O OGEPPA BIRADAR WADEYAR
AGE: 49 YEARS, R/O ARAKERI
TQ & DIST: BIJAPUR ...APPELLANTS
(BY SRI RAJA VENKATAPPA NAIK & SRI A SYED HABEEB, ADVS)
AND:
1 SRI SAHEBGOUDA
S/O MUTTAPPA WADEYAR
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SINCE DECEASED BY HIS LRs
a) BILISIDDA
S/O SAHEBGOUDA WADEYAR
AGE: MAJOR OCC: AGRICULTURE
b) AMASIDDA
S/O SAHEBGOUDA WADEYAR
AGE: MAJOR OCC: AGRICULTURE
c) MUTTAPPA
S/O SAHEBGOUDA WADEYAR
AGE: MAJOR OCC: AGRICULTURE
- ALL ARE R/O JALAGERI
TQ & DIST: BIJAPUR
2 SRI SATTYAPPA
S/O MADAPPA WADEYAR
SINCE DECEASED BY HIS LR
REPRESENTED BY RESPONDENT NO.3
3 SRI HIREWADEYAR
S/O AMAGOUDA WADEYAR
AGE: 39 YEARS
R/O JALAGERI,
TQ & DIST: BIJAPUR
4 SRI MALLASIDDAPPA
S/O PARAMESHWAR WADEYAR
SINCE DECEASED BY HIS LRs
a) SMT. LAXMIBAI
W/O MALLASIDDAPPA WADEYAR
b) SRI MADAPPA
S/O MALLASIDDAPPA WADEYAR
c) SRI BASAPPA
S/O MALLASIDDAPPA WADEYAR
d) SRI PARAMESHWAR
S/O MALLASIDDAPPA WADEYAR
- ALL ARE R/O JALAGERI
-3-
TQ & DIST: BIJAPUR
5 SRI MADAPPA
S/O MALLAPPA BIRADAR
- SINCE DECEASED BY HIS L.Rs
a) SMT.NEELAWWA
W/O MADAPPA BIRADAR (WADEYAR)
R/O ARAKERI,
TQ & DIST: BIJAPUR
b) SRI MALLAPPA
S/O MADAPPA WADEYAR
MAJOR, R/O ARAKERI
TQ & DIST: BIJAPUR
c) SRI BILIYANSIDDHA
S/O MADAPPA WADEYAR
AGE: MAJOR, R/O ARAKERI
TQ & DIST: BIJAPUR
d) SRI OGEPPA
S/O MADAPPA WADEYAR
MAJOR, R/O ARAKERI
TQ & DIST: BIJAPUR
6 SRI DUNDAPPA
S/O MALAKAPPA BIRADAR
AGE: 59 YEARS, OCC: AGRICULTURE
R/O ARAKERI, TQ & DIST: BIJAPUR
...RESPONDENTS
(BY SRI GURURAJ RAO KAKKERI, ADVOCATE FOR R-1(a), R-3 &
R-4(d)
SRI N.B.DIWANJI, ADVOCATE FOR R-1(c), R-4(b & c)
SRI M.V.HIREMATH, ADVOCATE FOR R-6
NOTICE TO R-5(a), (c) & (d) SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 05.07.1990 PASSED IN R.A.NO.98/1986 ON THE FILE OF
ADDL.CIVIL JUDGE, BIJAPUR ALLOWING THE APPEAL AND
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SETTING ASIDE THE JUDGMENT AND DECREE PASSED IN
O.S.NO.56/1982 DATED 18.11.1986 BY THE PRL.MUNSIFF,
BIJAPUR.
RSA No.708/1990
BETWEEN:
1 SRI OGEPPA
S/O SIDDAPPA BIRADAR WADEYAR
SINCE DECEASED BY HIS LR
REPRESENTED BY APPELLANT NO.4
2 SRI AMASIDDAPPA
S/O TOPAGEPPA BIRADAR
AGE: 49 YEARS, R/O ARAKERI
TQ & DIST: BIJAPUR
3 SRI AMASIDDAPPA
S/O SHIVALINGAPPA BIRADAR
WADEYAR, AGE: 49 YEARS
R/O ARAKERI,
TQ & DIST: BIJAPUR
4 SRI SIDDAPPA
S/O OGEPPA BIRADAR WADEYAR
AGE: 49 YEARS, R/O ARAKERI
TQ & DIST: BIJAPUR ...APPELLANTS
(BY SRI RAJA VENKATAPPA NAIK & SRI A SYED HABEEB, ADVS)
AND:
1 SRI SAHEBGOUDA
S/O MUTTAPPA WADEYAR
SINCE DECEASED BY HIS LRs
a) BILISIDDA
S/O SAHEBGOUDA WADEYAR
AGE: MAJOR OCC: AGRICULTURE
b) AMASIDDA
S/O SAHEBGOUDA WADEYAR
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AGE: MAJOR OCC: AGRICULTURE
c) MUTTAPPA
S/O SAHEBGOUDA WADEYAR
AGE: MAJOR OCC: AGRICULTURE
- ALL ARE R/O JALAGERI
TQ & DIST: BIJAPUR
2 SRI SATTYAPPA
S/O MADAPPA WADEYAR
SINCE DECEASED BY HIS LR
REPRESENTED BY RESPONDENT NO.3
3 SRI HIREWADEYAR
S/O AMAGOUDA WADEYAR
AGE: 39 YEARS
R/O JALAGERI,
TQ & DIST: BIJAPUR
4 SRI MALLASIDDAPPA
S/O PARAMESHWAR WADEYAR
SINCE DECEASED BY HIS LRs
a) SMT. LAXMIBAI
W/O MALLASIDDAPPA WADEYAR
b) SRI MADAPPA
S/O MALLASIDDAPPA WADEYAR
c) SRI BASAPPA
S/O MALLASIDDAPPA WADEYAR
d) SRI PARAMESHWAR
S/O MALLASIDDAPPA WADEYAR
- ALL ARE R/O JALAGERI
TQ & DIST: BIJAPUR
5 SRI MADAPPA
S/O MALLAPPA BIRADAR
- SINCE DECEASED BY HIS L.Rs
a) SMT.NEELAWWA
W/O MADAPPA BIRADAR (WADEYAR)
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R/O ARAKERI,
TQ & DIST: BIJAPUR
b) SRI MALLAPPA
S/O MADAPPA WADEYAR
MAJOR, R/O ARAKERI
TQ & DIST: BIJAPUR
c) SRI BILIYANSIDDHA
S/O MADAPPA WADEYAR
AGE: MAJOR, R/O ARAKERI
TQ & DIST: BIJAPUR
d) SRI OGEPPA
S/O MADAPPA WADEYAR
MAJOR, R/O ARAKERI
TQ & DIST: BIJAPUR
6 SRI DUNDAPPA
S/O MALAKAPPA BIRADAR
AGE: 59 YEARS, OCC: AGRICULTURE
R/O ARAKERI, TQ & DIST: BIJAPUR
...RESPONDENTS
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE FOR R-1(a), R-1(b),
R-3 & R-4(b) TO (d)
SRI M.V.HIREMATH, ADVOCATE FOR R-6
NOTICE TO R-5(a), (c) & (d) SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 05.07.1990 PASSED IN R.A.NO.97/1986 ON THE FILE OF
ADDL.CIVIL JUDGE, BIJAPUR ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE PASSED IN
O.S.NO.56/1982 DATED 18.11.1986 BY THE PRL.MUNSIFF,
BIJAPUR.
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THESE APPEALS COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are by defendants 2, 4, 5 , 6 assailing the correctness and legality of the judgment and decree passed in R.A.Nos.97/1986 and 98/1986 passed by Additional Civil Judge, Bijapur dated 05.07.1990 whereunder the appeal filed by these defendants insofar as it related to judgment and decree passed in O.S.No.56/1982 decreeing the suit partly came to be reversed and the decree passed in the said suit denying the claim of the defendants for exclusive worship of the deity came to be rejected was affirmed in appeal.
2. The above appeals has a historical background and it can be crystallised as under by referring to the parties as per their rank in the trial Court: -8-
Plaintiffs filed a suit for declaration that plaintiffs are the ancestral Wahiwatdar- pujaris having pujarki rights of performing puja at all times of Amogisidda God in suit temple and consequential relief of permanent prohibitory injunction restraining defendants, their agents, assigns or representatives from interfering with the plaintiffs rights of performing of puja of Amogisidda God in the temple, interalia contending that they are the ancestral pujaries of Amogisidda temple situjated in Sy.No.214 (i.e., Mammati Gudda) particularly in Sy.No.214/A of Jalegeri, Bijapur Taluk and their ancestors were performing puja by turns and plaintiffs No.1 has got eight annas right of puja and other plaintiffs having remaining right of puja which was exercised in turns by their ancestors. It was also claimed by the plaintiffs that during puja conducted throughout the year and annual jatra of Chatti Amavasya pujaris would get offerings from devotees to the Amogisidda God situated -9- in the said temple and same was received by plaintiffs. It was contended that after demise of Amogisidda, his Samadhi was constructed about 600 years back and the Samadhi is considered as God of Amogisidda and plaintiffs have been carrying on puja of the Samadhi and receiving the benefits of offerings made by devotees and they have been serving as ancestral Wahiwatdar - pujaris of temple being the descendents of the temple. Plaintiffs further contend that defendants are from Arakeri village who claim to be related to Amogisidda being Kurbars and used to pick up quarrels now and then with the plaintiffs and their ancestors and predecessors in title and these defendants and others had filed a suit in O.S.No.88/1944 and lost the suit and again in 1967 they started obstructing the puja in the suit temple and suit was filed by the fourth plaintiff and father of plaintiff No.3 in O.S.No.347/1967 and an exparte injunction order was obtained and thereafter obstruction did not continue and as such suit was not
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pressed and it came to be dismissed as such. They further claim that plaintiffs have been exercising their right of puja in the suit temple without any obstruction and annual jatra takes place in the area around the temple and it is managed by the Panchayat for the jatra by Siddalingappa Karabasappa Siral Shetty and the pujaris. They also claim that plaintiffs and other trust prominent devotees have taken steps to get the temple and the lands annexed to it registered as public with the Assistant Charity Commissioner, Belgaum and an Enquiry No.321/1980 has been instituted. On the ground that defendants with the assistance of Bijapur Taluka Police have been creating obstruction to puja of suit temple, since 20th March, 1982 and made attempts to forcibly enter the temple at night by taking away puja articles and they are also creating obstruction to the daily puja and on account of which jurisdictional police have registered a case of trespass against the defendants and as such, the suit in question for
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declaration and perpetual injunction was filed seeking the reliefs as claimed in the plaint.
3. In the said suit, summons came to be served on the defendants. Defendants-1 and 4 appeared and filed their separate written statements. Defendants- 2,3,5 & 6 filed a memo on 16.02.1983 adopting the written statement filed by fourth defendant. The sum and substance of the defence set up by the defendants was one of absolute denial of plaint averments. They contended that Amogisidda temple is not situated on Mommatta Gudda in R.S.No.214/B of Jalageri village. Defendants specifically denied that plaintiffs are the descendents of Amogisidda. Defendants losing the case in O.S.No.88/1944 was denied. They contended that Civil Appeal 180/1945 was filed challenging the judgment and decree passed in O.S.88/1944 and in the appeal, permission was sought to withdraw the suit and file a fresh suit and same was granted. The alleged
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obstruction by the defendants to perform the puja by the plaintiffs came to be denied. It was also contended that suit filed by the plaintiff O.S.No.347/1967 having been dismissed for non-prosecution, present suit was barred by resjudicata. Defendants further claimed that in 1901 the ancestors of the defendants had filed O.S.No.287/1901 in the Court of 2nd Joint Civil Judge, Bijapur for a declaration that plaintiff Gurrappa Manigengappa Pujari has got a right to worship Amogisidda temple and to restrain the defendants 1 to 3 from obstructing in his enjoyment of pujarki rights and possession of the suit properties which came to be decreed and contended that present defendants are the ancestors of the said plaintiff and present plaintiff are the descendants of defendants in the said suit. As such, it was claimed that defendants-1 to 3 have got pujarki rights as also defendants-4 to 8. They further claim that ancestors of defendants were discharging pujarki rights and making wahivat of the suit properties
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as "Wahiwatdars" and it is they who are holding the jatras and receiving offering given by devotees and claimed to be in possession of the teple and buildings attached thereto. They further contended that Amogisidda temple "Chandra Shala" Kudari Thaddist and Dharma Shala "Malagambha" are all situated in the Mammata Gudda in the limits of Arakere village and only some portion of Chandra Shala is in the limits of Jalageri village. Defendants contended that plaintiffs have no manner of right whatsoever to the temple, its religious institutions, building situated therein, and as such, they sought for dismissal of suit.
4. On the basis of the pleadings of the parties, trial Court framed the following issues for its adjudication.
(1) Whether plaintiffs proves that themselves and their ancestors have been exercising all along their rights of puja in the suit temple?
(2) Whether plaintiffs proves that they are the ancestral
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wahiwatdar pujari's and thus have pujarki rights in suit temple?
(3) Whether defendants proves that plaintiffs have no right of whatsoever to the suit temple?
(4) Whether plaintiff proves that the suit temple is situated in R.S.No.214/A of Jalageri village?
(5) Whether plaintiffs proves their possession over the suit temple as on the date of the suit?
(6) Whether plaintiffs prove alleged obstructions prior to the filing of the suit?
(7) Whether the suit is barred by the principles of resjudicata.
(8) Whether the suit is barred under the provisions of the Section 79 and 80 of Bombay Public Trust Act?
(9) Whether plaintiffs is entitled for declaration as prayed?
(10) Whether plaintiff is entitled for a decree of permanent injunction as prayed?
(11) What order or decree?
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In order to prove their case, second plaintiff got himself examined as P.W.1 and 14 witnesses were examined on behalf of plaintiffs as P.W.2 to P.W.15 and they produced 11 documents and got it marked as Ex.P-1 toP-11. Defendant No.2 got himself examined as D.W.1 and four witnesses were examined on behalf of defendants as D.W.2 to 5 and they got produced 8 documents by getting it marked as Ex.D-1 to D-8. On consideration of the pleadings of the parties and on scrutiny of evidence both oral and documentary tendered by respective parties, trial Court by its judgment and decree dated 18.11.1986 decreed the suit in part namely, it declared that plaintiffs and defendants are the pujari's of the suit temple situated on Mammati Gudda and plaintiffs along with Devasthan Committee of Jalageri village should perform puja and jatra of Amogisidda temple situated at Mammati gudda upto 15th day of coming of Chatti Amavasya in 1986 and
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thereafter plaintiffs should hand over possession of suit temple from 16th day of Chatti Amavasya of 1986 to the defendants and defendants should perform puja and also jatra to the suit temple till 15th day of future Chatti Amavasya and decreed that plaintiffs and defendants have got right of celebrations on yearly turn as stated above.
5. Defendants 2,4,5,6 being aggrieved by the judgment and decree passed by the trial Court preferred R.A.No.97/1986 to the extent of decreeing the suit of the plaintiff and plaintiffs being aggrieved by the same judgment and decree to the extent of declaring the right of the defendants to perform puja along with the plaintiffs and denying the declaratory relief as prayed for in the suit filed an appeal in R.A.98/1986. Both the appeals came to be clubbed and after hearing the arguments advanced by the respective learned
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Advocates, following points came to be formulated by lower appellate Court for its adjudication:
(1) Whether plaintiffs prove their status as Pujaris of the suit temple of Amogasidda situated on Mammati Gudda?
(2) Do they prove their right of
performance of puja was
peaceful and lawful as on the
date of the suit?
(3) Do they prove the alleged
obstruction?
(4) Whether the suit of the plaintiffs is hit by Sections 79 and 80 of the Bombay Public Trust Act and also under Order IX Rule 9 CPC?
(5) What order and relief?
On reappreciation of evidence and on analysing the pleadings, lower appellate Court by its judgment and decree dated 05.07.1990 allowed the plaintiffs appeal and decreed the suit as prayed for by declaring that plaintiffs are the hereditary pujaris of Amogisidda temple and restrained the defendants from causing
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obstruction to the plaintiffs peaceful possession and enjoyment in exercising the right of performing puja of Amogisidda temple permanently. The lower appellate Court dismissed the appeal filed by defendants. Being aggrieved by these two judgments and decree passed by the lower appellate Court, defendants have preferred these two appeals namely, RSA 708/1990 is filed assailing the correctness of judgment and decree passed in R.A.No.97/1986 and RSA 709/1990 is filed assailing the correctness of judgment and decree passed in R.A.No.98/1986.
6. These two appeals were clubbed by this Court and after hearing the learned Advocates, the following substantial question of law was formulated:
"Whether the lower appellate Court was justified in granting injunction for the first time in the facts and circumstances of the case and whether the appeal preferred before the Additional Civil Judge in R.A.98/1986 is not maintainable in law?"
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and after hearing the arguments of the learned Advocates, this Court by judgment and decree dated 24.07.1992 allowed both the appeals. The judgment and decree passed in R.A.Nos.97/1986 and 98/1986 was set aside. R.A.No.98/1986 was dismissed and R.A,.No.97/1986 was allowed. Consequently, plaintiffs suit came to be dismissed by holding that the civil Court jurisdiction was barred under Section 19 of Bombay Public Trusts Act, 1950 in view of Enquiry No.321/1980 pending on the file of Assistant Charity Commissioner, Belgaum Division, Belgaum and further concluding that lower appellate Court was not justified in granting injunction for the first time particularly when it had no jurisdiction to entertain the appeal. Being aggrieved by this judgment and decree, plaintiffs preferred Civil Appeal Nos.1352-53/1993 before the Hon'ble Apex Court which came to be allowed on 28.03.2003 by setting aside the judgment and decree passed by this Court on 24.07.1992 and remanding the matter to this
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Court for fresh decision by holding that the view taken by this Court in dismissing the suit was erroneous and the controversies raised in the suit do not require adjudication that might be done by the Assistant Charity Commissioner and the reliefs claimed in the suit would not come within the ambit of Section 19 or Section 79 of the Bombay Public Trust Act, 1950. Thus, the present appeals are before this Court.
7. On such order of remand passed by Hon'ble Apex Court, learned Advocates have addressed their arguments and I am of the considered view that in the above appeals following substantial question of law would arise which has been formulated for being adjudicated.
"Whether the lower appellate Court erred in reversing the finding of the trial Court while reappreciating the evidence and whether such finding recorded by the lower appellate Court is contrary to material evidence available on record and as such, findings recorded by the lower appellate Court is bad in law?
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8. Sri Raja Venkatappa Naik, learned Advocate appearing for appellants has argued at length and same can be summarized as under:
(i) Though D.W.1 has asserted that defendants are conducting pujas, finding is recorded to the contrary by lower appellate Court without assigning reasons.
(ii) Finding recorded in paragraph 18 of the lower appellate Court judgment are not based on records particularly when defendants have specifically raised a plea of performing pujas in para 3 of the written statement as such, inference drawn by the lower appellate Court is contrary to material evidence.
(iii) The lower appellate Court has not given any finding as to why it is differing or
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varying with the decision of the trial Court.
(iv) While trial Court has discussed evidence of P.W.1 to P.W.15, D.W.1 to D.W.5 in detail and came to a conclusion that both are performing pujas no reasons have been assigned by the lower appellate Court as to why it is differing from the said view.
(v) Lower appellate Court erred in not considering the fact that plaintiffs have been unable to trace the geneology of Amogisidda which was rightly taken note of by the trial Court to decree the suit.
(vi) Trial Court based on appreciation of entire evidence both oral and documentary, came to a conclusion that both plaintiffs and defendants are performing the pujas.
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(vii) The finding of trial Court that defendants are descendants and real pujaris of Amogisidda has not been considered, analysed and discussed by the lower appellate Court on the basis of material evidence.
(viii) The finding recorded by the trial Court which has been reversed by the lower appellate Court is without following the principles laid down in AIR 1967 SC 249. He would further elaborate his submissions by contending that defendants have continued to perform the pujas and plaintiffs have no right to claim to perform puja and the evidence available on record would clearly establish this fact and on account of improper appreciation of evidence, it has resulted in reversing the finding of the trial Court decreeing the suit of the plaintiffs by lower appellate Court and as such,
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the learned Advocate appearing for the appellants has prayed for answering the substantial question of law in favour of appellants and prays for dismissal of the suit by allowing the appeals or alternatively to restore the judgment and decree passed by the trial Court by reversing the finding of the lower appellate Court.
9. He would further elaborate his submission by contending even if there are concurrent findings recorded and when there is misinterpretation of documentary evidence or ignoring material evidence available on record, this Court in second appeal can reverse such finding. He contends, lower appellate Court has misread the evidence and over looked certain important evidence recorded as extracted by the trial Court and as such, appeals deserve to be allowed. He also submits that if the judgment of the appellate Court suffers from perversity, it can be interfered by this Court or when judgment is passed without assigning
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any justifiable reason, resulting in error same can also be corrected by this Court in second appeal.
In support of his submissions, he relies upon following judgments:
(1) (2006)(5) SCC 545 (2) (2009)9 SCC 346 (3) (2010)13 SCC 216 (4) (2002)2 SCC 440 (5) AIR 1985 MP 179
10. Per contra, Sri Gururaj Kakkeri, learned counsel appearing for respondents-1(A), R-3 , R-4(D) would contend that suit O.S.No.88/1944 was filed for the relief of possession and injunction and same came to be dismissed way back on 28.03.1945 and aggrieved by the said judgment and decree, appeal in Civil Appeal No.118/1945 was filed by the plaintiffs therein and same came to be withdrawn on the ground that they would file fresh suit vide order dated 15.06.1946 which
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have been marked as Ex.D-7 and D-6 respectively and no suit having been filed the findings recorded thereon has reached finality and as such, burden is cast on the defendants to establish as to when they came back into possession and when they started doing puja and in the absence of any pleading in this regard, defendants cannot have any grievance against the judgment and decree passed by the lower appellate Court. He would submit that the present defendant no.1 and father of defendant No.2,4,5,6 were plaintiff Nos.20, 4, 7, 8 and 9 respectively in O.S.No.88/1944 and as such, they cannot plead ignorance of the said binding judgment and decree. He would further contend that present defendants had filed a suit O.S.No.347/1967. Said suit came to be dismissed on 18.03.1969 as per Ex.D-5 and no explanation is forthcoming as to why they did not prosecute the said suit if they were really in possession and on the other hand, these defendants started interfering with plaintiffs possession over the suit
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property in the year 1982 and as such, present suit was filed which has been since decreed by lower appellate Court. He would also submit that evidence of P.W.3 has been taken into consideration along with Ex.D-2 which would clearly go to show that plaintiffs are performing the puja and as such, he seeks for dismissal of the appeal.
11. Sri Shivakumar Kalloor, learned Advocate appearing for respondent No.1(A &B), R-3, R-4(B-D) in RSA 708/1990 would submit that Exhibits-P4 to P8 which are RTCs of property belonging to Amogisidda temple discloses the plaintiffs name as wahiwatdars which means that plaintiffs are rendering services and as such, he contends that lower appellate Court was fully justified in reappreciating the evidence and decreeing the suit of the plaintiffs. He would also draw attention of the Court to the evidence of D.W.1 dated 15.03.1986 whereunder D.W.1 himself admits that
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there was a grant by the Government of Rs.1/- to Amogisidda temple and as such, the finding recorded by the lower appellate Court at paragraph 18 is not contrary to material evidence available on record as contended by learned Advocate for appellants. He would also submit P.W.9 who is a school teacher and an independent witness has spoken to about plaintiffs conducting pujas at the temple and no infirmity can be pointed out to the judgment and decree passed by lower appellate Court.
12. In reply, Sri Raja Venkatappa Naik, learned Advocate appearing for appellants would contend that grant was in favour of the temple and there is no admission on the part of defendants that plaintiffs are doing puja as contended. He would also submit that in view of Section 134 of Evidence Act, 1872 there is no bar to any of the parties to examine any number of witnesses to prove the fact and that by itself would not
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be a ground to decree a suit. He would also submit that in respect of entries found in Ex.P-4 to P-7 plaintiffs name do not find a place in column Nos.9, 10, 11 and as such, no presumption can be drawn under Section 133 of the Karnataka Land Revenue Act, 1964. He would submit that insofar as O.S.347/1967 is by their own family members and it does not have any bearing on the defence raised by the defendants. On these grounds, he seeks for allowing the appeal. FINDINGS ON SUBSTANTIAL QUESTION OF LAW
13. In this factual background, substantial question of law formulated herein above is being adjudicated and answered by taking into consideration the arguments advanced by learned Advocates.
14. The plaintiffs on one hand claim exclusive right of performing the puja at Amogisidda temple claiming to be the hereditary pujaris and on the other
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hand, defendants also stake their claim to perform puja of Amogisidda temple on the basis of they being descendants of Amogisidda and contend that they are also discharging their duties as pujaris or Archaks.
15. A perusal of judgment and decree passed by trial Court would disclose that it has clubbed issue No.1,2 and 3 for its adjudication and said issues are as under:
(1) Whether plaintiffs prove that themselves and their ancestors have been exercising all along their rights of puja in the suit temple?
(2) Whether plaintiffs proves that they are the ancestral wahiwatdar pujari's and thus have pujarki rights in suit temple?
(3) Whether defendants proves that plaintiffs have no right of whatsoever to the suit temple?
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and answered the same partly in favour of plaintiffs and partly in favour of defendants viz., both are having pujarki rights.
16. It is not in dispute that defendants ancestors had filed a suit for possession and injunction in O.S.No.88/1944. Copy of the said plaint is available on record as Ex.D-4. A perusal of said plaint and averments made therein, would disclose that it was a suit for possession and perpetual injunction against defendants therein. Said suit came to be dismissed by a judgment and decree dated 28.03.1945. Copy of the judgment and decree passed in the said suit has been marked as Ex.D-7. On said suit being dismissed, an appeal came to be filed by plaintiffs in Civil Appeal No.118/1945 and in the said appeal, an application was filed seeking permission to withdraw suit with liberty to institute a fresh suit on the same cause of action. Said application came to be allowed and judgment and decree passed by lower appellate Court came to be set
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aside and plaintiffs therein were allowed to withdraw the said suit and file a fresh suit on the same cause of action vide order dated 15.06.1986 as evidenced from the order sheet which was marked as Ex.D-6. Perusal of these documents would clearly establish the fact that plaintiffs - 20,4, 7 to 9 in the said suit are defendant No.1, 2 and father of defendants-4 to 6 in the present suit O.S.No.56/1982 and the prayer of the plaintiffs for recovering the offering given by devotees and other persons on the basis they are ancestral properties and have been carrying on the worship of deity at the temple uninterruptedly for the last 20 years came to be negatived. Admittedly, on withdrawal of said suit, plaintiffs therein have not pursued their claim and they have not filed any suit on the same cause of action as claimed. In fact, at this juncture itself it can be noticed that there is no whisper in the written statement on this aspect at all by the defendants. In fact, under Rule 2 of Order XXIII, plaintiff/s who seeks to withdraw the suit,
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law of limitation would bind such plaintiff/s. Admittedly, as noticed herein above, no such suit has been filed by plaintiffs therein i.e., defendants-1 and 2 and father of defendants-4,5 and 6 herein. In that view of the matter, contention of learned counsel appearing for respondents/plaintiffs to that extent deserves to be accepted.
17. Above narrated facts with reference to not raising a plea in their written statement by defendants would also go to show that defendants herein were required to plead these facts in their written statement and prove as to when they came into possession of the suit property or temple to claim right of worship which was admittedly negatived in O.S.No.88/1944 by judgment and decree dated 28.03.1945 - Ex.D-7. There is no plea in this regard in written statements filed by the defendants. This initial burden which was cast on the defendants have not been discharged. Learned
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Advocate appearing for defendants/appellants would fairly admit that pursuant to leave granted in Civil Appeal No.118/1945 on 15.06.1946 - Ex.D-6, no suit was filed by the plaintiffs therein. He also admits that no plea has been raised in the written statement filed by these defendants in O.S.No.56/1982 as to when they came back into possession of the temple and when they started doing puja at the temple but would hasten to add that in evidence of D.W.1 it has been so stated. Such evidence cannot be eschewed for the simple reason no amount of oral evidence in the absence of plea can be taken note of.
18. It is the contention of Mr.Raja Venkatappa Naik, learned counsel appearing for appellants that finding recorded by lower appellate Court in paragraph 18 of its judgment is without any basis and lower appellate Court has erroneously ignored the plea raised by defendants in paragraph 3 of their written statement
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which is to the effect that they (defendants) were performing puja of Amogisidda. At this juncture itself it would be of benefit to note the finding recorded by lower appellate Court in paragraph 18 which reads as under:
" As could be seen from the contents of the written statement filed by the defendants in the Court below, it is significant that they denied the right of the plaintiffs in performing puja of suit deity as pujaris. But, in fact, defendants have not been very much clear if they are performing the puja of the said temple as pujaris.
It is this finding recorded by lower appellate Court which has been assailed as contrary to the pleading in paragraph 3 of the written statement. Hence, it would also be necessary to extract relevant plea of the defendants raised in the written statement which reads as under:
"It is false to say that plaintiff No.1 is performing puja of the said Amogisidda temple and it is further false to say that the father and grand father of the plaintiff i.e., the ancestors of the plaintiff were performing puja by turn since long. xxxxxxx
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Again, in paragraph 9 the defendants have contended that their ancestors had filed O.S.287/1901 in the Court of 2nd Joint Civil Judge, Bijapur for a declaration and same had been decreed and claimed that defendants in this suit are the descendants of plaintiffs in the said suit and defendants in O.S.No.287/1901 are descendants of plaintiffs in O.S.No.56/1982 to contend that lower appellate Court has ignored this plea regarding binding nature of the said judgment and decree. To buttress this contention, he has relied upon the judgment of Hon'ble Apex Court in the case of MUNICIPAL COMMITTEE, HOSHIARPUR. vs PUNJAB STATE ELECTRICITY BOARD reported in (2010)13 SCC 216 by contending that if judgment of appelalte Court suffers from perversity, it can be interfered in second appeal as giving rise to formulate substantiate question of law interse between the parties. It has been held in the said judgment to the following effect:
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"24. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated.
25. In view of above, the law on the issue can be summarised to the effect that a second appeal lies only on a substantial question of law and it is necessary to formulate a substantial question of law before the second appeal is decided."
19. There cannot be any dispute with regard to above proposition of law on whatsoever ground. The facts of each case differ. Hence, it has to be examined
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as to whether lower appellate Court has ignored or excluded relevant material available on record and if same had been taken into consideration it would have altered the decision of the lower appellate Court in favour of the defendants/appellants. In the instant case, lower appellate Court at paragraph 18 has recorded a finding that there has been an omnibus denial of the plaint averments in the written statement filed by defendants. It has also been recorded by lower appellate Court that defendants have not been able to further amplify their claim to conduct pujas as pujaris except denying plaintiffs are not conducting puja. The said finding cannot be construed as one contrary to records or ignoring the plea available on the record. As already observed herein above, defendants-1 and 2 and father of defendants-4,5 and 6 in the present suit were plaintiffs- 20, 4, 7 to 9 in the O.S.No.88/1944 whereunder plaintiffs had claimed relief of possession and perpetual injunction which means that plaintiffs thereon were not
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in possession of the property/temple. Thus, at the cost of repetition, it was incumbent upon defendants to plead in their written statement as to when they came back into possession of suit schedule properties including the temple and when the alleged obstruction again commenced so as to consider their plea. In the absence of such plea, there was no necessity for trial Court to frame an issue or the appellate Court to examine the claim of defendants from this angle. It would be appropriate to note that lower appellate Court has specifically held defendants have not disclosed the names of pujaris who were conducting puja at the temple; if plaintiffs were not performing the same if somebody else was performing puja their names ought to have been disclosed. In other words, if plaintiffs were not discharging their duty as pujaris, some other pujaris ought to have carried on same or defendants should have carried on. Both written statement and evidence is silent on this aspect. In the absence of any
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positive material being placed before trial Court, lower appellate court has rightly held that trial Court had committed an error in arriving at the conclusion that defendants were also performing puja. Hence, I do not find any merit insofar as this contention raised by learned counsel for defendants/appellants and it stands rejected.
20. Further thrust of the argument advanced by Sri Raja Venkatappa Naik, learned Advocate appearing for appellants is lower appellate Court has misread the evidence available on record and there has been a omission in taking note of important evidence available on record and as such finding recorded by the lower appellate Court is required to be interfered by this Court by reversing finding recorded by lower appellate Court and allowing appeal filed by the appellants and dismissing suit filed by plaintiffs or alternatively to restore judgment and decree passed by trial Court. In
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this regard, judgments relied upon by learned counsel can be noticed by extracting relevant paragraphs pressed into service and same reads as under:
1) DUBARIA vs HAR PRASAD AND ANOTHER - (2009)9 SCC 346
15. In Othayath Lekshmy Amma and Another vs. Nellachinkuniyil Govindan Nair & amp; Ors., JT 1990 (3) SC 230, this Court, while considering the constitutional power under Article 136 of the Constitution, following earlier judgments of this Court, namely, Basudev Hazra vs. Meutiar Rahaman Mandal, 1971 (3) SCR 378 and Bhanu Kumar Shastri vs. Mohan Lal Sukhadia, 1971 (1) SCC 370, held that infirmity of excluding, ignoring and overlooking the abundant materials and the evidence, which if considered in the proper perspective would have led to a conclusion contrary to the one taken by both the High Court as well as the First Appellate Court, it would be open to this court to interfere with concurrent findings of fact arrived at by the High Court and the first appellate court. In view of the aforesaid, we are, therefore, of the view that the submission of the learned counsel for the respondents cannot be sustained. That apart, the High Court, while affirming the findings of the first appellate court, had reversed the findings of the trial court which had
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also considered the materials on record including the aforesaid oral and documentary evidences referred to hereinabove.
2) NEELAKANTAN & OTHERS vs MALLIKA BEGUM - (2002)2 SCC 440
8. The main contention of the learned counsel for the appellant is that the High Court could not take a different view on question of facts. As proposition of law, the submission made on behalf of the appellant tenants cannot be faulted with. It is well settled that the High Court while considering the matter in exercise of its jurisdiction in Second appeal or Civil Revision would not reverse the finding of fact as recorded by the Court below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view. The fact which is to be kept in mind is that the Civil proceedings were initiated by the tenant appellants as plaintiffs praying for relief of declaration that they were owners of the superstructure over Survey Plot Number 1303/1 which area had been declared as a slum area under Section 3 of the Act. On the same basis relief of
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injunction was also claimed in view of protection provided under Section 29 of the Act. The landlady as defendant had denied that the suit property was ever notified as slum area under Section 3 of the Act. The landlady had further pleaded that the property in dispute lay in Survey Number 1303/13 in respect of which there was no notification under Section 3 of the Act. In view of the above position, the High Court rightly held that the burden lay upon the plaintiff tenants in their suits to establish that property in dispute lay in Survey No.1303/1. On the other hand, it is observed by the High Court that the Courts below held that it was for situated in Survey No.1303/13. The High Court in our view was right in holding that so as to be entitled for relief for injunction as prayed, the plaintiff tenants were legally required to prove by legal and cogent evidence that the property was situated in Survey No.1303/1 in respect of which a notification was issued under Section 3 of the Act. The case of the plaintiff tenants that they were the owners of the superstructure has been found to be incorrect and the same has been disbelieved and declaration to that effect has been (SIC). The High Court has observed that the document exhibits A-13 and A-14 do not speak about the suit property. There was oral evidence of PW-2 only saying that the property viz. Survey No. 1303/1 was notified buy the Government as slum area, as claimed by
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the plaintiffs. The High Court rightly found that the plaintiffs failed to discharge the burden to prove that any declaration was issued under Section 3 of the Act in respect of the property in suit, by reason of which protection could be claimed by the plaintiff tenants under Section 29 of the Act.
21. His submission is the grant of Rs.1/- per year was to the temple and no where it is stated that plaintiffs were receiving the money from Government for rendering service to the temple and no inference could have been drawn by lower appellate Court particularly when no documents had been placed by plaintiffs in this regard. At the outset it is to be noticed that it is the plaintiffs who contended that about such a grant having been made by the then British Government to Pujaris for conducting puja and rendering service at Amogisidda temple. If it was the case of defendant that such grant was received either by the defendants or by their ancestors, they would have said so in their written statements. On this aspect, written statement filed by
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defendants is silent. In fact, the written statement of defendants lacks material particulars. Plaintiffs having asserted that such a grant was being made by the then British Government to this temple in question and it was distributed amongst pujaris, plaintiffs have further elicited an admission in this regard from D.W.1 in his cross examination dated 15.03.2006 which is to the following effect:
"It is not true to say that the Government has given two lands i.e., Sy.Nos.16 and 17 of Jalageri village to Amogshidda temple. (Witness volunteers the Government has given the said two lands to Amogshidda temple situated in Jalageri village and the said lands are cultivated by the plaintiffs.) It is not true to say that the Government has granted Re.1/- per year to Amogshidda temple situated at Mammatti gudda. (witness volunteers the said one rupee grant by the Government is for the Amogshidda temple situated in Jalageri village)"
(Emphasis supplied)
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This admission on the part of D.W.1 would establish that there was a grant in favour of Amogisidda temple by the then British Government. Though much hue and cry has been raised by both the parties about Amogisidda temple being situated in Jalageri village and Arkeri village by tendering evidence on the said issue in extenso and examining witnesses one after the other which has made the records bulky and said evidence would have no relevance whatsoever to consider the claim of parties with regard to rights of conducting puja at Amogisidda temple as pujaris. Hence, as rightly ignored by trial Court partially as well as lower appellate Court, this Court is not embarking upon any enquiry in this regard and same is left at it. It is also to be noticed that by attempting to tender such evidence, both parties have made an attempt to project as though there are two Amogisidda temples. If it was so, it would have been easy to resolve the dispute by directing both the parties to manage one temple each so as to live in peace
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and harmony. However, same is not the factual matrix. The claim of both parties is that there was one saint by name Amogisidda and on his expiry, a Samadhi was built which is reverentially called as "Gaddige" and puja is being performed to the same as well as to deity in the said temple by claiming that they are conducting puja activities and not the other party.
22. In this background, the evidence tendered by the parties as appreciated by the trial Court and reappreciated by lower appellate Court requires to be examined to discrete as to whether there has been any improper appreciation of evidence or lack of appreciation of evidence available on record or misreading of evidence available on record. Since learned counsel for appellants has assailed the judgment and decree of lower appellate Court on these grounds also.
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23. Plaintiffs have examined in all, 15 witnesses. It is no doubt true that under Section 134 of Evidence Act, 1872 there is no embargo to examine as many witnesses as the party chooses. It is the contents of said evidence which requires to be examined by this Court as scrutinised by trial Court and reappreciated by lower appellate Court. The trial Court while considering evidence tendered by parties has got swayed away by evidence of D.W.1 to arrive at a conclusion that defendants were also conducting puja at the temple and also on the ground that D.W.1 was able to state or specify the names of descendants of Amogisidda whereas, plaintiffs were unable to state the same. However, lower appellate Court has further scrutinised the evidence of P.W.1 and D.W.1 with reference to documentary evidence available on record to reverse finding of trial Court for granting prayer of the plaintiffs as sought for. Under Section 92 of Evidence Act,1872 any amount of oral evidence tendered would be of no
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consequence if the documentary evidence is otherwise. In other words, oral evidence would not be eschewed when there is documentary evidence. In the instant case, overwhelming documentary evidence which was available on record and which came to be considered by lower appellate Court was Ex.D-4 namely, certified copy of plaint of O.S.88/1944, Ex.D-7 judgment and decree passed in O.S.88/1944, Ex.D-6 - certified copy of order sheet in Civil Appeal No.118/1945 dated 15.06.1946 which clearly establish the fact that defendants - 1, 2 and father of defendants-4 to 6 in the present suit i.e., O.S.No.56/1982 were plaintiffs-20, 4, 7 to 9 in suit O.S.No.88/1944 which undisputedly was for the relief of possession and perpetual injunction relating to Amogisidda temple. A combined reading of these documents would establish that plaintiffs therein had sought for possession and permanent injunction of the suit temple therein which is the suit temple in the present suit on the ground they have ousted of
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possession of the temple. Said suit on contest and on merits came to be dismissed by judgment and decree dated 28.03.1945 and same was carried in appeal No.118/1945 wherein application came to be filed seeking withdrawal of the suit itself on the ground they intend to file fresh suit and accordingly on 15.06.1946 suit was permitted to be withdrawn with liberty to file fresh suit and as already discussed herein above, no suit has been filed thereafter. This overwhelming documentary evidence available on record having been accepted partially by trial Court, yet, it did not grant decree for declaration in favour of plaintiffs on the ground that defendants were able to state as to who are the descendants of Amogisidda. This exercise undertaken by trial Court came to be examined by lower appellate Court by reappreciating entire evidence since it was the Court of appeal at first instance and on such scrutiny, it has held that defendants did not demonstrate or establish as to when they got back
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possession of the temple and when they started continuing to discharge the duties of pujari/archak and when plaintiffs herein started obstructing either by pleading or placing any material/document to substantiate such claim except saying so in oral evidence. Any amount of oral evidence tendered in this regard would be of no consequence in the absence of pleadings i.e., no foundation having been laid oral evidence would recede to background and it would amount to building castle in the air.
24. Plaintiffs in order to establish that there has been grant in favour of Amogisidda temple and they were discharging the duties of pujaris by managing the temple as well as its properties as Wahiwatdars have produced RTC extracts relating to temple property by getting them marked as Exs.P-4 to P-8. The contention of Mr.Raja Venkatappa Naik is no presumption can be drawn with regard to entries found therein as
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contemplated under Section 133 of Karnataka Land Revenue Act, 1964 since plaintiffs name are not found in those RTCs requires to be examined for the purposes of outright rejection. A perusal of said exhibits available on record would disclose that it contain the name of Shiddappa Muddappa Wodeyar, Muthappa and others. If defendants were also discharging their duties as Archaks/pujaris of Amogisidda temple, their names would have also found a place in revenue records. However, it does not find a place. It cannot be said that defendants were ignorant about these facts since for the past one hundred and odd years the parties are at lis. They may not possess worldly knowledge as claimed but it cannot be construed that they are not aware of legal consequences of entries found in revenue records since they are litigating in all forums, all stages and are assisted by legally trained persons. Hence, said contention of learned counsel for appellants cannot be accepted and it stands rejected. In fact lower appellate
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Court at paragraph 19 of its judgment has considered the evidence tendered by the parties before trial Court while reappreciating the same and has arrived at a conclusion the on account of right of performing puja being hereditary, the then Government had given certain lands in lieu of services rendered by plaintiffs and as such their names are found, which finding cannot be said to be perverse on the ground that it is contrary to evidence on record as contended.
25. It is seen from the evidence of P.W.4, P.W.5, P.W.6 that they are independent witnesses who have spoken to in unequivocal terms about plaintiffs discharging their duties as pujaris/archaks. As against this evidence, defendants have examined D.W.2 and D.W.4 to contend that plaintiffs are not pujaris of Amogisidda temple and they are not performing puja and it is the defendants who are performing puja at the temple. In fact, D.W.4 who was examined on behalf of
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defendants has stated that pujaris of Arkere village perform puja of Amogisidda on yearly basis in his cross examination dated 28.08.1986 vide paragraph 4. In fact, plaintiffs have examined one of the devotees of temple who is a school teacher as P.W.9 who has stated that plaintiffs are performing the puja of Amogisidda. On a comparative analysis of entire oral evidence tendered by parties it would go to show that it is oath against oath and one attempting to eclipse the other. Hence, for a moment if this oral evidence is kept aside and documentary evidence is scrutinised as was done by lower appellate Court, the one and only irresistible conclusion that could be drawn would be plaintiffs have been able to demonstrate that they are performing pujas of Amogisidda temple as hereditary archaks and defendants being out of possession of said temple had made attempts to retrieve the possession by filing a suit O.S.No.88/1944 way back and had failed in their attempt and thereafter seems to have obviously gone
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into oblivion as otherwise, they would not have kept quite after withdrawing the suit by taking liberty to file fresh suit. This establishes that possession was never restored to them at all. Even otherwise, when the oral evidence of both parties are scrutinised, it can be safely concluded that finding arrived at by lower appellate Court is based on sound appreciation of evidence available on record and while reversing finding of trial Court partly and decreeing suit of plaintiffs in its entirety, it has given cogent reasons though not in actual words and it cannot be construed that there has been any miscarriage in the administration of justice by non-appreciation of evidence available on record or erroneous appreciation of evidence so as to disentitle the plaintiffs for the reliefs sought for by them in their suit.
26. In that view of the matter, I am of the considered view that substantial question of law
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requires to be answered in the negative i.e., against appellants and in favour of respondents by concluding that findings recorded by lower appellate Court is not contrary to material evidence available on record and it did not err in reversing finding of trial Court by decreeing suit in its entirety by reappreciating entire evidence.
Hence, the following order is passed:
(i) Appeals are hereby dismissed by answering substantial question of law against appellants and in favour of respondents;
(ii) The judgment and decrees passed
by lower appellate Court in
R.A.Nos.97/1986 and 98/1986
dated 05.07.1990 are hereby
affirmed.
(iii) Costs made easy in view of the fact that parties are belonging to one
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community and espousing cause of right to worship Sri Amogisidda.
(iv) Registry to draw decree accordingly.
Sd/-
JUDGE *sp