Karnataka High Court
Balaji Mandir Panch Committee Rajaput ... vs Ananth Buwa S/O Ganapath Buwa Kathikar on 1 April, 2024
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NC: 2024:KHC-K:2734
RSA No. 200425 of 2015
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF APRIL, 2024
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR SECOND APPEAL NO.200425/2015(DEC)
BETWEEN:
1. BALAJI MANDIR PANCH COMMITTEE,
RAJAPUT MANDAL, BASAVAKALYAN,
BY ITS PRESIDENT
VEDPAD S/O. VITHAL PRASAD, PANDE.
2. SANJAY SUINGH S/O. BABU SINGH HAZARE,
AGE: MAJOR, OCC: AGRICULTURE & BUSINESS,
R/O: BASAVAKALYAN, SECRETARY, BALAJI MANDIR
PANCH COMMITTEE, RAJAPUT MANDAL,
BASAVAKALYAN.
...APPELLANTS
(BY SRI S.S.HALALLI, ADVOCATE)
AND:
Digitally signed
1. ANANTH BUWA
by MANJANNA
E S/O. GANAPATH BUWA KATHIKAR,
Location: High
Court of SINCE DECEASED BY HIS LRS.
Karnataka
1A. PURSHOTTAM S/O. ANANTH BUWA,
AGE: 62 YEARS, OCC: PUJARI,
R/O: H.NO.40-59 GOSWAMY GALLI,
LAXMI VENKATESH SANSATHAN,
SHIVAJI CHOWK, BASAVAKALYAN,
DIST: BIDAR - 585 327.
1B. SRINIVAS S/O. ANANTH BUWA,
AGE: 58 YEARS, OCC: PUJARI,
R/O: H.NO.40-59 GOSWAMY GALLI,
LAXMI VENKATESH SANSATHAN SHIVAJI
CHOWK, BASAVAKALYAN,
DIST: BIDAR - 585 327.
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RSA No. 200425 of 2015
1C. GANESH S/O. ANANTH BUWA,
AGE: 58 YEARS, OCC: PUJARI,
R/O: H.NO.40-59 GOSWAMY GALLI,
LAXMI VENKATESH SANSATHAN SHIVAJI
CHOWK, BASAVAKALYAN,
DIST: BIDAR - 585 325.
1D. SHOBHA D/O. ANANTH BUWA,
AGE: 58 YEARS, OCC: PUJARI,
R/O: H.NO.40 - 59 GOSWAMY GALLI,
LAXMI VENKATESH SANSATHAN SHIVAJI
CHOWK, BASAVAKALYAN,
DIST: BIDAR - 585 327.
2. RAJPAL S/O. VITTAL PRASAD PANDE
DIED THROUGH LRS.
2A. RESHMA D/O. RAJPAL PANDE,
AGE: 38 YEARS, OCC: HOUSEHOLD.
2B. SEEMA D/O. RAJPAL PANDE,
AGE: 34 YEARS,
OCC: HOUSEHOLD AND BUSINESS.
BOTH R/O: BASAVAKALYAN,
DIST: BIDAR.
3. DHONDU PRASAD
DIED THROUGH LRS.
3A. ROOPABAI D/O. DHONDU PRASAD,
AGE: 62 YRS, OCC: HOUSEHOLD.
3B. KAVITABAI W/O. DHONDU PRASAD,
AGE: 44 YRS, OCC: HOUSEHOLD.
3C. SUNIL S/O. DHONDU PRASAD,
AGE: 40 YRS, OCC: AGRICULTURE.
3D. VISHAL S/O. DHONDU PRASAD,
AGE: 37 YRS, OCC: AGRICULTURE.
3E. SUSHIL S/O. DHONDU PRASAD,
AGE: 35 YRS, OCC: AGRICULTURE.
ALL ARE R/O: BASAVAKALYAN,
DIST: BIDAR.
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RSA No. 200425 of 2015
4. UDAYBANU S/O SHIVRAMJI,
DIED LRS THROUGH.
4A. VEDPRAKASH S/O. DHONDU PRASAD
AGE: 37 YRS, OCC: HOUSEHOLD.
4B. ANANT TRIDEVI
D/O. DHONDU PRASAD,
AGE: MAJOR, OCCF: HOUSEHOLD.
4C. KRISHNA MISHRA
D/O. DHONDU PRASAD,
AGE: MAJOR, OCC: HOUSEHOLD.
4D. KAPILA UPADHYA
D/O. DHONDU PRASAD,
AGE: MAJOR, OCC: HOUSEHOLD.
ALL ARE R/O: BASAVAKALYAN,
DIST: BIDAR.
...RESPONDENTS
[BY SRI AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI VARUN PATIL AND SRI SANDEEP PATIL,
ADVOCATE FOR R1(A TO D);
SRI MALLIKARJUN C. BASAREDDY, ADVOCATE FOR R2;
SERVICE OF NOTICE R2(A), R4(B TO D) IS
DISPENSED WITH (V/O DATED 08.03.2017);
R2(B), R3(A TO E), R4(A) ARE SERVED]
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 30.09.2015, PASSED IN
R.A.No.45/2013 ON THE FILE OF THE IIND ADDL. DISTRICT AND
SESSIONS COURT, BIDAR SITTING AT-BASAVAKALAYN, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED 07.02.2013, PASSED IN O.S.NO.55/1993 ON THE FILE OF
THE SENIOR CIVIL JUDGE AT-BASAVAKALYAN AND ETC.,
THIS APPEAL COMING ON FOR FURTHER HEARING, HAVING
BEEN HEARD AND RESERVED ON 06.03.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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RSA No. 200425 of 2015
JUDGMENT
Defendant No.1 in O.S.No.55/1993 on the file of the learned Senior Civil Judge at Basavakalyan (hereinafter referred to as 'Trial Court' for brevity) is impugning the common judgment and decree dated 07.02.2013 passed along with O.S.No.78/1993, decreeing the suit O.S.No.55/1993 with costs and declaring that plaintiff is the owner in possession of the suit property and consequently directing the defendants to hand over the vacant possession of the same, excluding the temple standing therein, within two months from the date of the decree and also for mesne profits, with a direction to the revenue authorities to enter the name of the plaintiff in the revenue records, which was confirmed in R.A.No.45/2013 on the file of learned II Additional District and Sessions Court, Bidar Sitting at Basavakalyan (hereinafter referred to as the "First Appellate Court" for brevity) vide common judgment dated 30.09.2015 passed along with R.A.No.40/2013, by dismissing the appeal.
2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. -5-
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3. Brief facts of the case are that, the plaintiff filed the suit O.S.No.171/1989, which was renumbered as O.S.No.55/1993, against defendant Nos.1 to 39, seeking declaration of his title, for possession and mesne profits in respect of the land measuring 1.18 acres out of 4.16 acres in Sy.No.156 of Basavakalyan (hereinafter referred to as 'suit property' for brevity).
4. It is contended by the plaintiff that the suit property is in actual possession of defendant Nos.7 to 39. The plaintiff being the Kartha of the joint family consisting of himself, his brothers and mother filed the suit in such capacity as Kartha. It is stated that defendant No.1 is not a registered society or trust. It is not a juristic person, but, however, defendant Nos.2 to 6 are claiming to be the office bearers of defendant No.1. The other defendants are in actual possession and enjoyment of the suit property as shown in the sketch appended to the plaint, on lease from defendant Nos.1 to 6.
5. It is contended that as per survey settlement of the village Basavakalyan, survey No.156 was measuring 4.16 acres. Dasayya was declared to be the pattadar and holder of -6- NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 the said land. He was also known as Hanumadas and he was in possession and enjoyment of the entire 4.16 acres of land in Survey No.156, which includes the Balaji temple. Dasayya @ Hanumandas died in the year 1325 Fasli. He had no male issues, but, he was living with his only daughter Yenkubai. Said Yenkubai had a son by name Narasayya, who was adopted by Dasayya. Narasayya was also the disciple of Dasayya and therefore, he was called by name Narsingdas. After the death of Dasayya, Narsingdas became the owner of the entire extent of land in survey No.156 including the Balaji temple. He was performing Pooja in the temple and was in possession of the property. Later, Narsingdas sold half of the land in survey No.156 in favour of Manohar Buwa, who was the paternal grandfather of the plaintiff. Since sale of the land was only for consideration of Rs.45/-, the sale deed was not registered. However, possession of the said half portion was handed over by Narsingdas in favour of the purchaser Manohar Buwa and he came in possession and enjoyment of the same.
6. It is further contended that subsequently on 7th Dai 1342 Fasli, Narsingdas made an application to the Assistant Nazim of Court of Wards, Division Kalyani i.e., present -7- NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 Basavakalyan, to grant Shikmi to the extent of half of survey No.156 of Basavakalyan to Manohar Buwa. He asserted that the said half portion of the land was sold in favour of Manohar Buwa and possession was handed over to him. Accordingly, Manohar Buwa also made an application on 07.02.1342 Fasli for grant of Shikmi. On the basis of such joint application by the seller and the purchaser and on verification of the facts by the Assistant Nazim, Shikmi was granted as per the order dated 9.02.1342 Fasli to the extent of half portion of the land in favour of Manohar Buwa and his name came to be entered in the revenue records.
7. It is stated that Narasayya sold the other half portion of the land along with the Balaji temple to Manohar Buwa, under the registered sale deed dated 23.02.1342 Fasli. However, the land in question was described as bearing survey No.152. Therefore, the correction deed was executed by the vendor describing the property as half portion in survey No.156. Thus, Manohar Buwa became the owner in possession of the entire extent of Survey No.156 of Basavakalyan. -8-
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8. The said Manohar Buwa filed the suit O.S.No.22/1342 Fasli against Narsayya @ Narsingdas for declaration of patta in the Court of Munsiff at Basavakalyan. The said suit was decreed on 25.03.1342 Fasli and accordingly, the name of Manohar Buwa was came to be mutated in the revenue records. He continued to be in possession of the property including the Balaji temple. He was paying the land revenue and was performing Pooja in the temple.
9. It is contended that Manohar Buwa died in 1349 Fasli. Ganpath Buwa was the son of Manohar Buwa and he succeeded to the property. His name was mutated in the revenue records. In the year 1959 an area measuring 2.38 acres in Survey No.156 of Basavakalyan was acquired by the Government for establishment of market yard. It was only Ganpath Buwa, who claimed compensation for the said land and the award was passed in his name on 29.03.1959. A survey was conducted to separate 2.38 acres of land from the remaining extent of land, which is described as the suit property and the boundaries were fixed. Thus, the suit property measuring 1.18 acres in survey No.156 along with Balaji -9- NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 temple remained in possession of Ganpath Buwa, who is the father of the plaintiff.
10. On 14.02.1964, said Ganpath Buwa filed the suit for possession in O.S.No.29/01/1964 against Premchand and others before the Munsiff Court at Humnabad. The defendants in the said suit filed the written statement contending that Balaji temple was belonging to Rajput, Marvadi and Vaishya communities and they are in possession of the same. However, they made it clear that they are not claiming any right on the land bearing survey No.156, but they claim only right of worship in the temple, to have an access to the temple and to draw the water from the Well situated therein. The said suit came to be dismissed on the ground that the suit which was under Section 9 (new Section 6) of the Specific Relief Act was filed beyond six months of the dispossession. During the pendency of the suit, the father of the plaintiff died and his legal representatives including the plaintiff were brought on record. After the death of Ganpath Buwa, the patta in respect of the suit property was changed in the name of the plaintiff and he continued to be in possession of the same, excluding the Balaji temple.
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11. It is contended that the father of the plaintiff was dispossessed from the temple, but he continued to be in possession of the remaining land excluding the area on which the temple is built. After the death of Ganpath Buwa, the plaintiff is in possession and enjoyment of the same. It is contended that since Rajpal, Vedpal and Rahimuddin started interfering with the possession of the plaintiff on the suit property, he filed the suit O.S.No.127/1978 before the Munsiff Court at Basavakalyan for grant of perpetual injunction. The defendants in the said suit have filed their written statement stating that defendant No.2 therein had taken the contract for construction of a building known as Raita Bhavan on behalf of the Market Committee of Basavakalyan on the property that was acquired by the Agricultural Produce Market Committee from Taluka Municipal Council (TMC), Basavakalyan. However, it was stated that Rajput community as a whole was in adverse possession of 1.18 acres of land excluding the temple and it has perfected its title. The plea of res-judicata was also raised as the earlier suit filed by the father of the plaintiff was came to be dismissed. Considering the same, the suit O.S.No.127/1978 was came to be dismissed on 14.09.1979 accepting the plea of
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 res-judicata. The appeal filed against the said judgment in R.A.No.98/1979 was came to be dismissed. The second appeal before this Court in R.S.A.No.422/1982 was also came to be dismissed.
12. On 27.10.1975, the self styled Secretary of Balaji temple gave an application to the Village Accountant, Basavakalyan for mutating the land measuring 1.18 acres in Survey No.156 in the name of Balaji temple. The plaintiff filed his objection. The Tahsildar after holding an enquiry rejected the application to mutate the name of the Secretary of Balaji temple. The appeal against the said order was allowed by the Assistant Commissioner vide order dated 30.06.1982. Accordingly, the name of the Secretary of Balaji temple was mutated in the revenue records. The temporary injunction granted in favour of the plaintiff in O.S.No.127/1978 was vacated and thereafter, the defendants have taken the possession of the suit property illegally by dispossessing the plaintiff without any right. Therefore, the plaintiff filed the suit for declaration and for possession along with mesne profits, since the title of the plaintiff was denied and defendants have came in possession of the same.
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13. It is contended that the suit of the plaintiff for declaration and for possession was within 12 years from the date of his dispossession i.e., from 24.10.1978. Even though the earlier suit O.S.No.29.01.1964 was came to be dismissed, it will not operate as res-judicata as the same was filed under Section 6 of the Specific Relief Act and since the defendants have not claimed adverse possession of the property in the said suit, the title and the possession of the property was never in issue. The suit O.S.No.127/1978 was for bare injunction. Therefore, a comprehensive suit for declaration and for possession is filed. It is stated that the cause of action to file the suit arose on 25.11.1978 when the plaintiff was dispossessed. Accordingly, the plaintiff prayed for declaration that he is the owner of the suit property, a decree for possession of the suit property, mesne profits from the defendants and for costs.
14. Defendant Nos.1 to 4 and 6 have filed their written statement denying the contentions of the plaintiff. It is contended that the land in Survey No.156 is the Inam land and is an endowed property. There are various shop premises which are in occupation of lessees under the deity Sri Balaji,
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 represented by defendant No.1. The temple is an endowment temple and it is the owner of the suit property. It is entered in the endowment register and approved by the Government of Karnataka. The Committee for managing the temple consists of eleven persons including the revenue officials. Defendant No.2 is the President and defendant No.3 is the Vice President, defendant No.4 is the Secretary of the said Committee and are managing the affairs of the temple. The suit property consists of temple, buildings, trees, samadhies and the open space. Defendant No.1 is in continuous use and enjoyment of the suit property, to the knowledge of the plaintiff, for more than 30 years.
15. It is contended that Dasayya was not the owner of the entire extent of land in survey No.156, including the temple. The contention of the plaintiff that Hanumandas is also known as Dasayya or that he adopted Narasayya or that the said Narasayya was also called as Narasinghdas are all denied. It is stated that Narasayya @ Narsingdas was only a nominal Poojari appointed by the Committee, which was managing the Balaji temple. It is denied that Narasayya @ Narsingdas was having any right over the land in Survey No.156 and the
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 temple. It is denied that Narasayya sold half portion in survey No.156 of Basavakalyan in favour of Manohar Buwa in 1341 Fasli for Rs.45/- or he was put in possession of the same. The property referred to by the plaintiff could not be identified, since there is no document to that effect. All other allegations made in the plaint with regard to the ownership of Manohar Buwa and thereafter by the plaintiff are all denied.
16. It is contended that since the right over the land and the temple was vested in defendant No.1 as Inam and endowed property, it could not be divested under any circumstance. It is admitted that 2.38 acres of land in survey No.156 of Basavakalyan was acquired by the Government for TMC, Basavakalyan for establishing the market. Since the name of Ganpath Buwa was found in record of rights wrongly, the compensation was paid to him, but, it will not give any right to plaintiff over the suit property.
17. It is contended that the remaining extent of the land after acquisition was never measured nor boundaries were fixed, but the defendants continued to be in possession and enjoyment of 1.18 acres of land, including the temple. The
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 plaintiff was never in possession and enjoyment of the same and he was not having any right to seek declaration. It is stated that in the suit O.S.No.29/1/1964 filed by the father of the plaintiff before the Munsiff Court at Humnabad, the defendants therein have taken a specific defence that the property is the endowed property and they never admitted the title of the plaintiff or his father at any point of time. They asserted the right of the deity - Sri Balaji over the suit property and they have also claimed adverse possession. The Committee is in actual possession and enjoyment of the suit property. All the devotees of Balaji temple are visiting the same and have the right to worship.
18. It is contended that in O.S.No.29/1/1964, the plaintiff was examined as a witness and he admitted his dispossession from the suit property prior to 1962. Under such circumstances, the present suit is not maintainable. When in the suit O.S.No.29/1/1964, the plaintiff admitted that he was not in possession of the property, it is not made clear as to when the plaintiff came in possession of the property to be dispossessed again. The judgment and decree in O.S.No.29/1/1964 dismissing the suit of the plaintiff has
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 reached finality, as even the appeals were dismissed. The plaintiff and his predecessors in the interest were not in possession and enjoyment of the temple or the suit property in any capacity. Even after admitting that the plaintiff was not in possession of the property, the suit O.S.No.127/1978 was came to be filed seeking perpetual injunction. The said suit was came to be dismissed and the appeals were also came to be dismissed. The Committee for management of the temple i.e., defendant No.1 had always asserted title of the deity to the knowledge of the plaintiff and had enjoyed the possession of the property openly. Therefore, the suit of the plaintiff is barred by principles of res-judicata.
19. It is contended that the plaintiff has never challenged the order passed by the Deputy Commissioner during 1986-87, rejecting the claim of the plaintiff and confirming the order in respect of the suit property that it is an endowed property and it does not belong to any individual. On that count also, the suit of the plaintiff is not maintainable.
20. It is denied that the defendants have admitted the title of the plaintiff or his father at any point of time. It is
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 contended that the entire land measuring 4.16 acres in Survey No.156 including the Balaji temple, trees, Well, Samadhies etc. was never the property of any individual. The Archak or Poojari in the temple was not having any proprietary right. Even if he misuses his capacity and executes any document selling the property, the purchaser will not get any title. In any case, the total extent of land that was sold or transferred in favour of father of the plaintiff is not more than 2.38 acres in Survey No.156 of Basavakalyan. On the basis of wrong entries found in the revenue records, the compensation was obtained in respect of such 2.38 acres of land.
21. It is also contended that the suit property measuring 1.18 acres of land i.e., the property excluding the acquired land is a pot-kharab, where the temple is situated. The plaintiff cannot seek any right, title or interest over the same. Hence, prayed for dismissal of the suit with costs.
22. The other defendants have filed the memo adopting the written statement filed by defendant Nos.1 to 4 and 6.
23. The plaintiff filed the rejoinder denying the contentions taken by the defendants in their written statement.
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 It is denied that the suit property is the Inam land or it was an endowed property. It is contended that the suit property is the patta land as declared by the Civil Court in O.S.No.22/1342 Fasli on the file of Civil Court at Basavakalyan in the suit between Manohar Buwa and Narasayya, which was decreed on 25.03.1342 Fasli. Accordingly, the name of Manohar Buwa was came to be entered in the revenue records. The defendants have created documents to show that the property is the endowed property and it was gazetted. Such concocted document relied on in support of the contention taken by the defendants is after filing of the suit by the plaintiff.
24. It is denied that defendant No.1 is the owner of the suit property at any point of time. It is further stated that the defendants in O.S.No.29/1/1964 before the Munsiff Court at Humnabad never denied the title of the plaintiff nor claimed title in themselves. Therefore, the defendants are estopped from seeking inconsistent pleas.
25. It is stated that the suit property bearing Survey No.156 measuring 1.18 acres in Basavakalyan is bounded by East - Gunj, Basavakalyan, West - Government road leading
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 Basavakalyan to Sastapur, North - land of Khaja Begum Moin Begum D/o. Mohd. Nawaz and South - remaining land Survey No.156 of the plaintiff, now in the occupation of APMC.
26. It is contended that the suit property is neither the Inam land nor the endowed property belonging to the deity, but the land in question is purchased by the father of the plaintiff and Balaji temple is a private temple, which is the property that was purchased under the registered sale deed. The defendants have never challenged the said sale deed, even in the earlier suit O.S.No.22/1342 Fasli before the Civil Court at Basavakalyan. The revenue records stood in the name of the plaintiff since more than 60 years and the same cannot be ignored.
27. The plaintiff submitted that the father of the plaintiff had filed suit O.S.No.29/1/1964 before the Munsiff Court at Humnabad against defendant Nos.2 and 3 and others for recovery of possession of Balaji temple along with surrounding land. The defendants have filed their written statement, but, they never denied the ownership of the father of the plaintiff over the suit property. Now the defendants are
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 taking inconsistent stand in respect of the same. The said suit was came to be dismissed only on the ground that the same was filed after expiry of six months, since it was filed under Section 9 of the Specific Relief Act, which was prevailing then. It was not the suit for possession based on title and it was based on previous possession. The suit O.S.No.127/1978 was only for perpetual injunction. Therefore, the nature of the suits are quite different with one another and the principle of res- judicata is not applicable to the facts of the case. The suit for perpetual injunction filed earlier in O.S.No.127/1978 cannot be treated as res-judicata under any circumstance.
28. It is contended that the Assistant Commissioner had no authority and no basis to enter the name of Sri Balaji temple in the revenue records, which is contrary to the decree in O.S.No.22/1342 Fasli on the file of the Civil Court at Basavakalyan. It amounts to contempt of Court. It is further contended that the plea of adverse possession raised by defendant No.2 taken in O.S.No.127/1978 was given a go-by to claim title. Therefore, the defendants have failed in their attempt by taking inconsistent pleas.
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29. The plaintiff has categorically stated that he was in possession of the suit property for more than 30 years, but he was dispossessed only after dismissal of I.A.1 on 24.10.1978 in O.S.No.127/1978 before the Munsiff Court at Basavakalyan and the defendants have taken the possession of the property illegally. When the defendants have no title, they cannot justify their possession contrary to their pleadings in the earlier suit. Therefore, the plaintiff prayed for rejecting the claim of the defendants in the written statement and decreeing the suit as prayed for.
30. On the basis of these pleadings, following issues, re-casted issue No.5 and additional issue No.1 were came to be framed by the Trial Court:
1) Whether the plaintiff proves that Dasayya was owner in possession of suit land and that subsequently Narsayya succeeded?
2) Whether the plaintiff further proves that Narasayya sold suit land to Manohar Buwwa (by two different sale deeds) and Manohar Buwwa become the owner and after his death Ganpathi Buwwa succeeded to suit property?
3) Whether plaintiff further proves that Ganpath Buwwa received acquisition compensation?
4) Whether plaintiff further proves that after acquisition land measuring 1 acre 18 guntas remained with him?
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5) Whether plaintiff prove that Rajput community as a whole was in adverse possession and that it perfected its title by prescription?
6) Whether plaintiff is entitled to declaration that he is owner?
7) Whether plaintiff is entitled to possession?
8) Whether plaintiff is entitled to mesne profits?
9) Whether suit is barred by time?
10) Whether suit is hit by principles of res-judicata?
11) Whether suit is bad for non joinder of necessary party?
12) Whether defendants are entitled to costs of Rs.10,000/-?
13) What order? What decree?
Issue No.5 is recasted as under:
Whether the concerned defendant/s have/has perfected his/their title over the suit property by way of adverse possession?
Additional issue:
Whether the Civil Court has jurisdiction to try the suit?"
31. To prove his contentions, the plaintiff examined PWs.1 to 6 and got marked Exs.P1 to P42. The defendants got examined DWs.1 to 3 and got marked Exs.D1 to D65 in support of their defence. Exs.C1 to C4 were also came to be marked.
32. The suit O.S.No.55/1993 was clubbed with O.S.No.78/1993, which was filed by the plaintiff against the
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 TMC and APMC, Basavakalyan seeking declaration of his title, for injunction and for mesne profits. The Trial Court, after taking into consideration all these materials on record passed a common judgment answering issue Nos.1 to 4, 6 to 8 and additional issue No.1 in the affirmative and re-casted issue No.5 and issue Nos.9 to 12 were in the negative and decreed the suit of the plaintiff, declaring that he is the owner of the suit property and directed the defendants to handover the vacant possession of suit property, excluding the temple area within two months from the date of the decree. It is also held that the defendants are liable to pay mesne profits to be calculated in a separate proceeding. The revenue authorities were directed to enter the name of the plaintiff in the revenue records, while dismissing the suit O.S.No.78/1993.
33. Being aggrieved by the same, defendant Nos.1 and 4 have preferred R.A.No.45/2013. The First Appellate Court dismissed the said appeal and being aggrieved by the same, defendant No.1 is before this Court.
34. Heard learned counsel Sri S.S.Halalli for the appellant/defendant No.1, learned Senior Advocate Sri Ameet
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 Kumar Deshpande for Sri Varun Patil and Sri Sandeep Patil, learned counsel for respondent Nos.1(a) to 1(d) and learned counsel Sri Mallikarjun C. Basareddy for respondent No.2.
35. Learned counsel for the appellant submitted that the contention of the plaintiff that he is the absolute owner of the suit property, is not proved. Even though the plaintiff is placing reliance on Ex.C.2, only half portion out of 2.38 acres in survey No.156 was purchased under the same, which apparently excluding the suit property measuring 1.18 acres. Learned counsel further submitted that as per Ex.P.14 dated 23.02.1942 Fasli, only remaining half portion in the land measuring 2.38 acres in survey No.156 was purchased and thus it is clear that the plaintiff can lay his hands only for 2.38 acres in survey No.156 and not on the suit property, which is not the subject matter of either Ex.C.2 or Ex.P.14. Learned counsel further submitted that the recitals in Ex.C.2 and Ex.P.14 make it very clear that what was purchased by the plaintiff under these two sale deeds is only 2.38 acres of land and nothing more than that. Under Ex.C.2 only 1.19 acres i.e, half of 2.38 acres was purchased and under Ex.P.14 the remaining half portion i.e., 1.18 acres was purchased. There is
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 no reference to the remaining 1.18 acres of land which is classified as pot-kharab and notified as endowment property, in either of the sale deed. Under such circumstances, both the courts have committed an error in decreeing the suit of the plaintiff.
36. It is contended that the suit O.S.No.22/1342 Fasli was filed by Manohar Buwa, the father of the plaintiff in respect of said 2.38 acres of land, but, the present suit is in respect of the suit property i.e., measuring 1.18 acres. Though the contention of the plaintiff is that he had purchased the entire 4.16 acres of land in Survey No.156, the same is not supported by any document. The contention of the plaintiff cannot be accepted. Ex.C.2, P.14A, P.13A and Ex.D.4 are the material documents which falsify the contention of the plaintiff and support the contention of the defendants.
37. Learned counsel further submitted that the suit property is the Inam land and therefore, even the vendor under the sale deed was not the owner. The temple which was the absolute owner of the suit property is managed by the Committee. Therefore, he contended that the defendants never
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 claimed any right, title or interest in respect of 2.38 acres of land, covered under two sale deeds, relied on by the plaintiff. But, the plaintiff is not having any right, title or interest over the suit property.
38. Learned counsel further submitted that the suit property is declared as endowment property but the Government is not a party to the suit. As per Regulation Nos.33 and 34 of the Hyderabad Endowment Regulations, the suit is not maintainable. Learned counsel submitted that way back in the year 1989 Government notified the temple as an endowment temple. Even though the plaintiff is claiming right over the property, which is already declared as endowment property, the Government is not arrayed as one of the defendants. Since it is an endowment temple declared as such under Exs.D25 and D26 dated 06.07.1989 and 07.08.1989, the Committee was constituted which is managing the affairs of the temple. A specific contention was raised in the written statement that the suit is bad for non joinder of necessary party i.e., the Government.
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015
39. Learned counsel further submitted that as per Ex.D.20 - the report of ADLR, the suit property measuring 1.18 acres in Survey No.156 of Basavakalyan is pot-kharab-(b) and Mafi Inam land, which is not liable for land revenue. As per the gazette notification dated 22.09.1989, the Balaji temple is notified as endowed property. Even though the said notification was challenged by the plaintiff by filing writ petition, the same was came to be dismissed and even the Special Leave Appeal preferred before the Apex Court was also dismissed.
40. Learned counsel for the appellant further contended that as per Exs.D64, D65 and the order dated 30.06.1982 the Assistant Commissioner declared that 1.18 acres of land in Sy.No.156 i.e., the suit property is pot-kharab and it belongs to general public. The suit property is declared as pot-kharab way back in the year 1914. As per Rule 21 of the KLR Rules the classification is made and it is not assessed to revenue. Therefore, as per Rule 21 (2) (b) of the KLR Rules, it was assigned for public purpose. It is substantiated by the fact that a temple was built on the said portion of the land, there exist Samadhies, trees, Well, etc., itself disclose that it was dedicated for public purpose. In O.S.No.29/1/1964 neither the
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 Balaji temple nor the Committee managing its affairs were parties to the suit. But the suit was filed against individual defendants who were not claiming any right personally over the suit property. Now defendant No.1 is Balaji temple, represented by the Committee. Under such circumstances, the plaintiff is not entitled to seek declaration of his title over the pot-kharab land against the defendants.
41. Learned counsel further submitted that admittedly the portion of the land in Sy.No.156 of Basavakalyan was acquired under the notification for establishing market Committee. The plaintiff got the compensation in respect of 2.38 acres of land, excluding 1.18 acres of land which was the pot- kharab.
42. Learned counsel further submitted that as per Ex.D.4 the suit O.S.No.29/1/1964 was filed by the plaintiff on 14.02.1964 to seek possession of the suit property from the defendants, with a specific pleading that he was dispossessed on 12.07.1962. But the said suit was came to be dismissed as barred by limitation and relief for possession was denied. The said judgment passed by the Trial Court reached finality.
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 Inspite of that he filed O.S.No.127/1978 for perpetual injunction. The plaintiff never stated as to when he regained the possession of the suit property. Therefore, the said suit was also came to be dismissed. The said judgment and decree also reached finality. After that, the plaintiff has filed the present suit in O.S.No.171/1989 which was renumbered as O.S.No.55/1993, seeking declaration of his title and for recovery of possession and mesne profits against Balaji temple. The said suit was came to be decreed by the Trial Court and also by the First Appellate Court ignoring all these facts and circumstances. The suit of the plaintiff is hopelessly barred by limitation, which is also hit by principles of res-judicata. The plaintiff has not proved his possession over the suit property.
43. Learned counsel placed reliance on the decision of the Hon'ble Apex Court in Pramod Kumar and another vs. Zalak Singh and others1 in support of his contention that in view of the finding in the suit O.S.No.29/1/1964 and O.S.No.127/1978 the plaintiff is barred from instituting a suit afresh in respect of the claim which is already rejected by the Court.
1 (2019) 6 SCC 621
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015
44. Learned counsel further submitted that since the substantial questions of law regarding the law of limitation and principles of res-judicata are not framed, a memo in that regard is filed and therefore prayed for framing additional substantial questions of law and to allow the appeal in the interest of justice.
45. Per contra, learned Senior Advocate for the respondent - plaintiff opposing the appeal, submitted that half portion of Sy.No.156 of Basavakalyan was purchased by the grandfather of the plaintiff as per Ex.C.2 which is in Urdu language and Ex.C.2(a) is its translation. This sale deed under which half portion was purchased for Rs.45/- only and therefore it does not require registration. On the basis of the said sale deed the vendor himself applied for mutation of the name of the predecessor in interest of the plaintiff. The possession was also handed over in favour of the purchaser. Similarly, under Ex.P.14 the remaining half portion of the property was purchased and patta was granted in the name of the grandfather of the plaintiff i.e., Manohar Buwa. Even though the sale deed was initially in respect of Sy.No.152, a rectification deed was executed as per Ex.P.19 and the
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 translation is as per Ex.P.19(a), correcting the survey number as Sy.No.156. In the sale deed there is reference to the earlier sale deed Ex.C.2. The recitals found in these two sale deeds make it clear that the entire property in Sy.No.156, totally measuring 4.16 acres was purchased in two bits i.e., 2.38 acres and 1.18 acres. Therefore, the contention of the defendants that only 2.38 acres of land in Sy.No.156 was purchased under these two sale deeds, cannot be accepted.
46. Learned Senior Advocate submitted that it is for the first time in the second appeal new stand is taken by the appellant that the sale deeds Exs.C.2 and P.14 are only in respect of 2.38 acres of land and not in respect of the suit property. No such defence was raised in the written statement nor there was any evidence led in that regard. The Trial Court has also not framed any issue to that effect. Therefore, for the first time such plea could not be raised before this Court. Even otherwise, learned Senior Advocate submitted that the recitals in Ex.C.2 refers to the subject matter of the sale deed as half of the land measuring 2.38 acres i.e., 1.19 acres which is the subject matter of the sale deed. Therefore, the remaining extent of the land in Sy.No.156 is 2.38 acres. That is the
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 reason why in the second sale deed Ex.P.14, there is reference to the remaining 2.38 acres of land in Sy.No.156 and it is stated that the remaining entire 2.38 acres of land is sold along with the temple and the surrounding land. The recitals in both the sale deeds are very clear and there is no room for any confusion. Therefore, such contention raised for the first time before this Court is liable to be rejected.
47. Learned Senior Advocate submitted that the interpretation of the recitals in two sale deeds on which the plaintiff is relying on is purely a question of fact. The Trial Court and the First Appellate Court, on appreciation and re- appreciation of the oral and documentary evidence, recorded the concurrent findings. Under such circumstances, no substantial question of law would arise for consideration of this Court.
48. Learned Senior Advocate further submitted that the grandfather of the plaintiff filed O.S.No.29/1/1964 against few of the defendants seeking possession of the property. Ex.D.4 is the judgment in the said suit and Ex.P.21 is the written statement filed by the defendants. A specific defence was taken
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 by the defendants in the written statement restricting their claim only to have an access to the temple and right to perform pooja, along with right to draw water from the Well existing therein. It is made clear that the defendants are not claiming any right over the land in question. Similarly, the defendants have also made clear that they are not the owners of either temple or the deity. But now the defendants have taken inconsistent stand.
49. Learned Senior Advocate further contended that Ex.P.24 is the deposition of Premchand in O.S.No.29/1/1964. He represented the temple and the Committee as its President. He categorically stated that he is not claiming any right over the land but his claim is restricted to the right to access to the temple, worship the deity and to draw the water from the Well. Therefore, it is clear that the plaintiff was in possession of the suit property without any disturbance.
50. Learned Senior Advocate submitted that one Dasayya was the poojari of the temple and he was the owner of the suit land. Narasingdas was his disciple and after death of Dasayya it was Narasingdas who sold the property in
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 Sy.No.156 in two bits in favour of the grandfather of the plaintiff - Manohar Buwa, under two separate sale deeds. Ex.P.25 is the deposition of the witness Venkoba where there is reference to the said Narasingdas who is referred to as Narasing Dasayya . The patta of the land stood in the name of Narasayya i.e., vendor of Sy.No.156 under the sale deed.
51. Learned Senior Advocate submitted that it is for the first time on 04.03.1980 as per Ex.D.14 the Tahasildar passed an order under the guise of correcting column No.12/2 mentioning the name of the President of the Balaji Committee of Rajput Mandal, Basavakalyan. Such correction had no basis. No notice was issued to the plaintiff. Even in this order there is no reference to pot-kharab. Therefore, the defence taken by the defendants that the property was either pot-kharab or inam land or endowment property is not probablized. On the other hand, there are sufficient materials to prove that the land in question is the patta land and the plaintiff is the owner of the same. He further submitted that there was no issue raised before the Trial Court about the nature of the suit property. It was not in dispute as to whether the property was patta land or it was a pot-kharab. For the first time before this Court such
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 contention was raised. When concurrent findings of facts were recorded by the Trial Court as well as the First Appellate Court and the scope of second appeal under Section 100 of CPC is very limited, the defendants cannot take altogether a new defence and the same cannot be considered by this Court.
52. Learned Senior Advocate further submitted that even though the notification was published on 20.06.1989, declaring that the property is an endowment property as per Exs.D.24, the same was never brought to the notice of the plaintiff. Subsequently the Government cancelled the same as per order dated 20.10.2000. The defendant preferred writ petition before this Court in W.P.No.9991/2001. The said writ petition was came to be allowed by this Court vide order dated 13.03.2006 and remanded the matter to the Government to consider it afresh after giving notice to all the parties concerned and to pass appropriate orders. The Government again restored its order that the property is the endowment property. The same was challenged by the plaintiff in W.P.Nos.82845- 846/2011. The said writ petitions were came to be dismissed vide order dated 16.04.2013. The plaintiff has preferred W.A.Nos.50365-366/2013. The said writ appeals were came to
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 be dismissed holding that the question as to whether the property is the endowment property or not will be subject to the decision of the Civil Court. However, plaintiff challenged the said order by filing Special Leave to Appeal before the Hon'ble Apex Court in SLA.Nos.2683-2684/2015. The Special Leave Appeals were came to be dismissed as per order dated 09.02.2015 making it clear that the order passed by the High Court in the writ appeals and the dismissal of the special leave to appeals will not effect the merits of the appeal preferred against the decree in favour of the petitioners therein in O.S.No.55/1993 which was pending consideration. Therefore, the Hon'ble Apex Court referred to the present appeal and made it very clear that the decision of the civil court in this appeal will decide as to whether the property is the endowment property or not. Since there are absolutely no materials to form such an opinion that the property is the endowment property, the Trial Court and the First Appellate Court rightly decreed the suit. He further submitted that the interest of the Government is now represented by the appellants who are challenging the claim of the plaintiff. Under such circumstances,
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 it cannot be held that the suit of the plaintiff is bad for any reason.
53. He further submitted that in O.S.No.29/1/1964, the predecessor in title of the plaintiff sought for possession of Balaji temple along with the land measuring 1.18 acres in Sy.No.156. The copy of the plaint is produced as per Ex.D.1. All the documents produced before the Court disclose that the land in question was a patta land, which was not either inam land or pot-kharab. There is absolutely no document to prove the contention of the defendants that it was an inam land. The revenue records also do not refer to the land as pot-kharab. In Ex.D.12 the record of right for the year 1988-89, the entire property measuring 4.16 acres is referred to as patta land and there is no reference to pot-kharab. However, there is reference to pot-kharab measuring 1.18 acres in the revenue records produced as per Exs.P.2 to P.10 which was the wrong entry carried forward and no importance could be attached to it. When defendants admitted that the entire land was the patta land at an undisputed point of time, they cannot take advantage of reference to pot-kharab in Exs.P2 to P10. Learned Senior Advocate also refer to Exs.P.11 to P.13 where there is
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 reference to Sy.No.156 measuring 4.16 acres which is described as patta land and where there is no reference to pot- kharab and the property stood in the name of the grandfather and father of the plaintiff, as pattadars. Similarly, in Exs.D12 and D13 the property is described as patta land and the predecessor in title of the plaintiff were shown as pattadars.
54. Learned Senior Advocate also submitted that there is also no defence that the suit property is the pot-kharab-(b) as referred to under Rule 21 (2) (b) of the KLR Rules. When there is no pleading nor any evidence led in that regard, the appellant cannot be permitted to raise such plea before this Court. Learned counsel placed reliance on the decision in the case of Sri L.A.Krishnappa Vs. The State of Karnataka Represented by its Secretary, Revenue Department and others2 to substantiate to his contention that the land unless is classified as pot-kharab-(b) as provided under Rule 21(2) of the Land Revenue Rules, the contention of the appellant that the plaintiff is not entitled for any relief, cannot be accepted. Learned Senior Advocate further submitted that to treat the property as an endowment property, there must be dedication 2 ILR 2009 KAR 938
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 to that effect. It is not the contention of the defendants that the property was dedicated by anybody to declare it as an endowment property. Even in earlier suits the defendants have never raised such a plea that the property was either pot- kharab or it was meant for public purpose. The land in question was never endowed or dedicated for the temple.
55. Learned Senior Advocate contended that the defendants in earlier suit taken a specific stand that they are having right to worship with right to access to the temple and to draw water from the Well. They categorically stated that they are not claiming any right over the land in question. But strangely in the present suit defendants have taken up an inconsistent plea that they are claiming right over the suit property. This is per se destructive plea taken by the defendants which cannot detain the Court for long.
56. Learned Senior Advocate further submitted that the defendants have taken inconsistent plea of adverse possession and failed to probablize the same. They have also contended that the property in question is the endowed property but there is no issue framed in that regard before the Trial Court.
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 However, the First Appellate Court discussed about such contention with reference to Regulation Nos.33 and 34 of Hyderabad Endowment Regulations and categorically recorded the finding that such plea was not raised in the written statement and it was for the first time raised in the first appeal. No such defence was taken in the written statement. Therefore, such contentions cannot be permitted to be raised in the second appeal.
57. Learned Senior Advocate also submitted that the proposed substantial questions of law suggested by the learned counsel for the appellant regarding declaration of title of the plaintiff in respect of the property which was pot-kharab land, as it violates the provisions of the KLR Act, there was no such issue raised before the Trial Court. When the nature of the land in question is purely question of fact, the same cannot be raised for the first time before this Court. Even though the contention of res-judicata was raised by the defendants, both the Courts have recorded the finding concurrently in favour of the plaintiff.
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015
58. Learned Senior Advocate for the respondent further submitted that O.S.No.29/1/1964 was filed for possession based on prior possession. The suit of the plaintiff was dismissed as the suit was filed beyond six months from the date of dispossession. Therefore, the present suit is not barred and question of limitation will not arise. The said decree will not bar the present suit by principles of res-judicata, since the said suit was only under Section 9 (old) of the Specific Relief Act. The suit O.S.No.127/1978 was filed by the plaintiff seeking only permanent injunction. The same was dismissed as possession of the property was not proved. It will not attract the principles of res-judicata.
59. Learned Senior Advocate further submitted that the suit filed in the year 1978 is for seeking permanent injunction, whereas the present suit is for declaration and for possession. The cause of action for the present suit is entirely different. Even as per Article 65 of the Limitation Act it cannot be said that the suit is barred by limitation. Unless the defendants plead and prove perfecting the title by adverse possession, the suit of the plaintiff for possession cannot be termed as barred by limitation. In other words, unless the defendants claim the
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 property through adverse possession, Article 65 of the Limitation Act is not made applicable to the suit filed by the plaintiff, which is based on title. Similarly, the principles of res- judicata is also not applicable to the present case since the earlier suits were on different causes of action, whereas the present suit is on a specific cause of action as stated in the plaint. Order II Rule 2 of CPC refers to the subsequent suit filed on the same cause of action. Therefore, the Trial Court and the First Appellate Court were right in decreeing the suit of the plaintiff.
60. Learned Senior Advocate submitted that Ex.D.65 is not an admissible document nor it is proved in accordance with law. Mere production of Ex.D.65 which was said to have been issued by City Survey office will not give rise to any presumption under law and therefore the same cannot be relied on. Thus he contended that there are no merits in the contention raised by the appellants. Even if the substantial questions of law as proposed by the appellant are to be considered, the same are to be held in favour of the plaintiff and against the defendants. In view of limited scope under Section 100 of CPC and since there is no perversity or illegality
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 in the judgment of either the Trial Court or the First Appellate Court, he prays for dismissing of the present appeal with costs.
61. This Court vide order dated 18.06.2018 framed the following substantial question of law:
"Whether both the courts below have erred in law in declaring the title of the plaintiffs in respect of a kharab land in violation of provisions of Karnataka Land Revenue Act?"
62. Learned counsel for the appellant filed a memo proposing to frame additional substantial questions of law. The First proposed additional substantial question of law is with regard to bar of the suit filed by the plaintiff by res-judicata. The Trial Court had framed issue No.10 and answered it in favour of the plaintiff and against the defendants. The second proposed additional substantial question of law is with regard to the limitation. The Trial Court had framed issue No.9 and answered it in favour of the plaintiff. The third proposed substantial question of law is with regard to bar of jurisdiction of the Civil Court, since the property is an endowment property. Even though no such specific issue was framed by the Trial Court referring to the property as an endowment property, additional issue was framed regarding jurisdiction of the Civil
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 Court. Since defendant No.1 is challenging the legality and correctness of the judgment and decree passed by the Trial Court which was confirmed by the First Appellate Court, I deem it appropriate to frame all these three substantial questions of law. Thus the additional substantial questions of law are as follows;
1. Whether the suit of the plaintiff was barred by res- judicata in view of the judgment passed in O.S.No.29/1/1964 and O.S.No.127/1978?
2. Whether the suit is barred by limitation?
3. Whether the jurisdiction of the Civil Court is barred since the suit property is an endowment property? Perused the materials, including the Trial Court records. My answer to the substantial question of law and additional substantial questions of law Nos.1 to 3 are in the Negative for the following:
REASONS
63. The plaintiff filed the suit in O.S.No.171/1989 which was later renumbered as O.S.No.55/1993 against the defendants seeking a) Declaration that he is the owner of the suit property; b) For possession of the suit property; c) For mesne profit and d) For costs of suit.
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015
64. The suit property is described as the land bearing Sy.No.156 measuring 1.18 acres situated at Basavakalyan out of the total area measuring 4.16 acres. The plaintiff contended in the plaint that the suit property is in actual possession of defendant Nos.7 to 39 and he is maintaining the suit as Kartha of the joint family consisting himself, his brothers and other members of the family. It is the specific contention of the plaintiff that defendant No.1 is not a juristic person but however defendant Nos.2 to 6 are claimed to be the office bearers of defendant No.1.
65. It is not in dispute that Sy.No.156 of Basavakalyan village totally measures 4.16 acres. It is the contention of the plaintiff that one Dasayya was the pattadar and he was in possession of the property. He was also known as Hanumadas and he used to perform pooja in the Balaji Temple that was in existence in the land. Since Hanumadas was not having any male issues, he adopted his grandson Narasayya as his son. Since he was the disciple of Hanumadas, Narasayya was called as Narasinghdas. It is the specific contention of the plaintiff that Narasinghdas, who became the owner of the entire 4.16 acres of land in Sy.No.156, sold half of the property in favour of
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 one Manohar Buwa, who was the paternal grandfather of the plaintiff. Since the property was sold only for Rs.45/-, the sale deed was not registered. After sale of half portion of the property in favour of Manohar Buwa, Narasinghdas was in possession of the remaining half portion and subsequently, the said portion was also sold in favour of Manohar Buwa under the registered sale deed.
66. The First sale deed relied on by the plaintiff is produced as per Ex.C.2 and the second registered sale deed is produced as per Ex.P.14. The recitals in Ex.C.2 discloses that it was executed on 16.04.1341 Fasli, i.e., on 16.04.1931. There is reference to 2.38 acres of land, with Balaji temple and half of the land being sold for a consideration of Rs.45/- in favour of purchaser Manohar Buwa. Ex.P.14 is the original sale deed which is in Urdu language and its translation is as per Ex.P.14(a). The sale deed is of the year 1342 Fasli i.e., dated 23.02.1932. The recitals in the document disclose that there is reference to Sy.No.152 and later it is referred to as Sy.No.156 measuring 2.38 acres of Basavakalyan village and half of the portion is already sold in favour of Manohar Buwa and remaining portion sold in his favour under the sale deed. The
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 contention of the learned counsel for defendant No.1 is that the sale deed Ex.C.2 and Ex.P.14 refer to only 2.38 acres of land, which excludes 1.18 acres of land, with Balaji Mandir referred to as schedule property and is the subject matter of the suit. But it is relevant to note that there is specific reference to Balaji Mandir existing in the land which was sold and it is stated that the purchaser is the follower of the temple and he will do pooja-pat. These recitals in the sale deed, disclose that the land along with the Balaji Mandir was sold in favour of Manohar Buwa by the vendor. Thus it is clear that the piece of the land that was sole in favour of Manohar Muwa was the land with Balaji Mandir, which corresponds to the suit property.
67. Defendant Nos.1 to 4 and 6 have appeared before the Trial Court and filed their written statement contenting that defendant No.1 is the owner of the suit property bearing Sy.No.156 measuring 1.18 acres including the temple, trees, shops, samadhies and open space. Defendant No.1 is in continuous use and enjoyment of the suit property. It is contended that Dasayya referred by the plaintiff was not the owner of the entire extent of land in Sy.No.156, including the temple. The contention of the plaintiff that Hanumadas @
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 Dasayya was adopted Narasayya @ Narasinghdas, is also denied. It is denied that Narasayya @ Narasinghdas was having right over the land baring Sy.No.156 and the temple situated there on.
68. It is contended that 2.38 acres of land bearing Sy.No.156 of Basavakalyan was acquired by the Government for establishing the market and since the name of the Ganapath Buwa was found in the revenue records, compensation was paid to him. It is also contended that the remaining extent of land was never measured nor the boundaries were fixed. But however, it was the defendants' who continued in possession and enjoyment of the said land, including the temple. It is stated that since Narasayya @ Narasinghdas was only a poojari in the temple without any right over the land in Sy.No.156, he could not have sold any portion of the property in favour of Manohar Buwa under the sale deed. Thus, it is clear that the defendants have never admitted the ownership of the predecessor in interest of the plaintiff in respect of the suit property and also in-respect of the area measuring 2.38 acres of land which was admittedly acquired by the Government and the compensation was paid to the Ganapath Buwa.
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 The Contention Regarding Pot-Kharab;
69. Ex.P.2(a) is the record of rights for the year 1345 Fasli, i.e., 1935 in respect of Sy.No.156 totally measuring 4.16 acres and 1.18 acres is described as pot-kharab. However, there is reference to Balaji temple situated in the land and the name of the Kabjadar is mentioned as Manohar Buwa. Similar entries were found in the record of rights i.e., in Ex.P.3(a) for the year 1346 Fasli, i.e., 1936. There is reference to the revenue due to the Government from the pattadar Manohar Buwa. Ex.P.4(a) to 10(a) are similar revenue records for the subsequent years. Ex.P.11 is the record of rights for the year 1968-69, which originally stood in the name of Ganapath Buwa and after his death in the name of the plaintiff. Total extent of the land referred to in the Record of Right is 4.16 acres and there is no reference to pot-kharab. Similarly, Ex.P.12(a) also refers to the name of the plaintiff and others and there is no reference of pot-kharab.
70. Learned Senior Counsel for respondent/plaintiff contended that since the property consists of a temple and samadhies, it is initially classified as pot-kharab, but the said entry was only for a few years and it was not carried forward
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 during subsequent years. When the subsequent revenue records are considered, there is no reference to the pot-kharab, but name of Manohar Buwa and after his death Ganapath Buwa and thereafter the plaintiff, are shown as pattadars.
71. Ex.P.13 is the decree of the learned Munsiff ordering mutation of 2.38 acres of land in Sy.No.156 in the name of Manohar Buwa, where defendant Narasinghdas, disciple of Hanumadas submitted no objection for such mutation. Ex.P.15, the copy of the Mysore Gazette published on 11.12.1958 under Section 5 of the Land Acquisition Act notifying 4.16 land in Sy.No.156 being the patta land for acquisition. Ex.P.16 is the letter of the Assistant Commissioner, Bidar dated 04.03.1963 passing the award in respect of 2.38 acres of land in Sy.No.156, excluding pot-kharab and directing payment of compensation to the owner. Therefore it is clear that during 1958 to 63, the notification for acquisition of the land measuring 2.38 acres in Sy.No.156 was published and the award was passed in respect of 2.38 acres only, excluding 1.18 acres of land being pot-kharab. It is not in dispute that Manohar Buwa had received the said compensation, but the revenue records even after acquisition of 2.38 acres of land in
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 Sy.No.156 by the Government, continued to be in the name of Ganapath Buwa and after his death in the name of the plaintiff for the remaining extent of the land, i.e., obviously in respect of the suit property.
72. Rule 21 of the Karnataka Land Revenue Rules, 1966 refers to classification of lands for the purpose of assessment. One such classification is pot-kharab, including unarable land. Sub-Rule (2) of Rule 21 further classifies the pot-kharab as (a) and (b). (a) is the classification of the land which is unfit for agriculture, including the farm buildings or threshing floors of the holder; (b) is the land which is not assessable as the same is reserved or assigned for public purpose, occupied by road, footpath, tank or stream or any other public purposes, including burial ground.
73. In the case of L.A.Krishnappa (supra), the Co- ordinate Bench of this Court considered the classification of the land as pot-kharab (a) and (b) and placing the reliance on the decision of the Division Bench of this Court in P.Bhimachar Vs. State of Mysore and others3, reiterated that pot-kharab portion of the land is included in the ownership of the occupant. 3 1966 (2) Mys.L.J. 184
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 It also referred to the case in Saudagar Rasoor Khan Vs. State of Mysore4, where similar view was expressed, holding that the pot-kharab land is called so, because it is not cultivable and it is a classification made for the purpose of revenue exemption. The Court has made it very clear that when the land is classified as pot-kharab under Rule 21(2)(a) Karnataka Land Revenue Rules, it is for the exemption from payment of land revenue and has no relevance for assuming that the pot- kharab portion is the land not included in the occupancy or that it belongs to the Government. It is further held that only in respect of pot-kharab-(b) lands, it could be said that the State Government can claim the same as Government land. Insofar as pot-kharab-(a) lands are concerned, the land will be included in the occupation of the pattadars or the owners. Thus the position of law is very well settled.
74. It is relevant to refer to Ex.P.13(A) which is the order dated 25th Behaman 342 Fasli, i.e., 25th Jan.-Feb. 1932 passed in Case No.22/1342 Fasli on the file of learned Munsiff Court at Kalaburagi. As per this document, the purchaser Manohar Buwa had instituted the suit seeking declaration of 4 ILR 1973 Karnataka 56
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 right of patta of the land bearing Sy.No.156 measuring 2.38 acres against the vendor Narasingdas, disciple of Hanumadas. The defendant there in had not contested the suit. On the other hand he agreed for the decree and at an undisputed point of time the suit was decreed declaring that the Manohar Buwa is entitled for patta of the land in question.
75. The materials on record disclose that, even after acquisition of the land measuring 2.38 acres in Sy.No.156 of Basavaklyana, the name of Ganapath Buwa continued in respect of 1.18 acres of land and after his death it continued in the name of the plaintiff. Nobody at any point of time have challenged the said revenue entries standing in the name of the plaintiff or his predecessor in title. Even the defendants have not raised any objections about the said revenue entries, at any point of time. It is not in dispute, rather it is admitted fact that the temple in question is situated in the land measuring 1.18 acres in Sy.No.156 of Basavaklyan village. It is never the contention of the defendants that the property in question is pot-kharab-(b) land. None of the documents support such facts. Therefore it is to be concluded that the schedule property is the patta land belonging to the plaintiff for which the plaintiff
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 has sought for declaration of his title. Since there are no materials to support the contention of the defendants that plaintiff had no right over the schedule land and there are no materials to hold that the land is pot-kharab-(b) land, the Courts have not committed any error in declaring the title of the plaintiff over the same.
The Contention Regarding Res-Judicata ;
76. It is relevant to refer to the previous litigation in O.S.No.29/1/1964, filed by the plaintiff against few individuals including some of the defendants in the present suit seeking possession of the property. Plaint in O.S.No.29/1/1964 is marked as Ex.D.1, wherein it is stated that even after acquisition of 2.38 acres of land in Sy.No.156 of Basavaklayan, the plaintiff Ganapath Buwa was in possession and enjoyment of the remaining 1.18 acres of land, including Balaji Mandir as its pattadar. On 12.07.1962, the defendants with an intention to usurp the valuable land break opened the lock of the Mandir and illegally occupied it. The police complaint in this regard was filed, but they have not taken any action. Therefore, the cause of action for the suit was arose on 12.07.1962, when the plaintiff was dispossessed illegally and defendants came in
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 possession of the same. Accordingly plaintiff sought for possession of the suit temple i.e., Balaji Mandir situated in 1.18 acres of land in Sy.No.156 under Section 9 of the Specific Relief Act, 1877, as it stood then, which refers to the suit by a person dispossessed of immovable property, which corresponds to Section 6 of the Specific Relief Act, 1963. The suit was came to be filed on 06.02.1964. The averments made in the plaint disclose that it was the suit based on the previous possession and seeking its restoration under Section 9 of the Specific Reliefs Act, 1877. But it was not the suit for possession based on title.
77. Later the plaintiff filed the suit O.S.No.127/1978 seeking perpetual injunction against the defendants. The said suit came to be dismissed as he has not proved the possession of the property. However, it is the contention of the plaintiff that during pendency of the suit O.S.No.127/1978 he was again dispossessed and therefore the suit was came to be dismissed. It is thereafter the present suit was filed during 1989 seeking declaration of his title and for possession.
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78. It is one of the contentions taken by the appellant that the suit of the plaintiff is barred by res-judicata. It is contented that since the plaintiff had filed the suit O.S.No.29/1/1964 seeking possession of the property and O.S.No.127/1978 seeking perpetual injunction and since both the suits were came to be dismissed, the present suit is barred by principles of res-judicata. Section 11 of CPC deals with principle of res-judicata. To apply the principles of res-judicata there must be a former suit between the same parties, in which the matter directly and substantially in issue, the same has been heard and finally decided by Court of competent jurisdiction. The appellant while contending that the suit is barred for res-judicata, places reliance on dismissal of the suit in O.S.No.29/1/1964 and O.S.No.127/1978, which are came to be dismissed by the Civil Courts. As noted above, the suit O.S.No.29/1/1964 was a suit filed under Section 9 of the Specific Reliefs Act, 1877 for possession of the property based on previous possession, by alleging that the plaintiff was dispossessed on 12.07.1962 by the defendant, highhandedly. Ex.D.4 is the certified copy of the judgment passed in the said suit where the following issues were came to be considered.
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1) Is the plaintiff entitled to be in sole possession of the suit property as claimed in plaint?
2) Was the plaintiff in possession of the suit property prior to the alleged dispossession and is the dispossession on 12.05.1962 is proved?
3) Is the said Balaji Mandir the endowed property and the public (Rajaputh, Marwadi and Vaishya communities) have a right of access, right of worship to the temple?
4) Are the members of the said communities are in possession and enjoyment of the property for more than 50 years?
5) Is the suit time barred?
6) Is the plaintiff entitled for the possession as sought for?
79. A specific finding was recorded by the Trial Court under Ex.D.4, which reads as under;
"Admitting for argument sake that, the plaintiff was dispossessed on 12.05.1962, the present suit is filed on 14.02.1964, which is beyond six months from the time of dispossession. The plaintiff has not brought the suit within six months, so the present suit is barred by time as per Section 9 of Specific Reliefs Act."
The Court has specifically recorded a finding that ownership of the land in Sy.No.156 is not in dispute. But plaintiff was held to be required to prove his possession over the property within six months from the date of dispossession, as it is the requirement of law. Issue Nos.1 and 2 were held in the negative.
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80. It is interesting to note that issue Nos.3 was held partly in the negative holding that the defendants in the said suit have failed to prove that the suit temple is the endowed property as no evidence was placed to show that the same is the endowment property. A specific finding was recorded that the Balaji Mandir was not the endowment property. The Court has held that in view of the finding on issue No.3, no finding is needed on the 4th issue. The 5th issue was held in the affirmative for the reasons stated therein.
81. In view of the above, it is clear that the suit O.S.No.29/1/1964 was filed under Section 9 of the Specific Reliefs Act, 1877, as it was then, based on previous possession and there was no issue whatsoever regarding the title of the plaintiff. There was absolutely no evidence to accept the contention that the property in question was endowment property and accordingly the Court has answered the issue in the negative. Under such circumstances, the defendants in the present suit cannot contend that the suit is barred by the principles of res-judicata. It is for the first time in the present suit, the plaintiff sought for declaration of his title, as a cloud is
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 created on his title by issuing of the notification as per Ex.D.24 and the defendants started to deny the right of the plaintiff.
82. It is also pertinent to note that Ex.D.21 is the written statement filed by the defendants in O.S.No.29/1/1964. The defendants in the said suit have taken a specific stand that they are not claiming any proprietary interest over the land measuring 1.18 acres in Sy.No.156, except right of way, right of worship and right to draw water. The defendants have pleaded their ignorance as to whether the property is a patta land granted in the name of Narashingdas and he remained in possession of the same. In the subsequent proceedings in O.S.No.127/1978, which was a suit for permanent injunction, admittedly the defendants have taken a contradictory defence that they have perfected their title by adverse possession over the land in question. In this suit, the defendants have taken one more defence that the property is not the patta land, it is pot-kharab, the property is the endowed property and further defendant No.1 is the authority having right over the same. If these defences taken since from 1964 till this suit are considered, I am of the opinion that the defence taken are mutually destructive in nature and the intention of the
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 appellant was very clear to grab the property only after issuance of notification as per Ex.D.24, just prior to filing of the suit. Therefore the contention of the appellant that the suit of the plaintiff was barred by the principles of res-judicate cannot be accepted.
The Contention Regarding Limitation;
83. The next contention raised by the appellant is that the suit is barred by limitation. In the written statement filed by the defendants they never admitted the ownership of the plaintiff in the present suit, nor asserted their ownership over the schedule property. On the other hand the defendants are claiming to be in possession of the property, which is also admitted by the plaintiff by stating that it is defendant Nos.7 to 39, who are in actual possession of the property.
84. The contention taken by the defendants is that the plaintiff was never in possession and enjoyment of the property and even according to the plaintiff, he has lost possession over the property during 1962. Therefore the suit is barred by limitation. Learned counsel for the appellant could not highlight under which provision of the Limitation Act, the suit of the
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 plaintiff is barred by time. The defendants have made half hearted attempt to claim adverse possession over the property by highlighting its ingredients in the written statement filed in the present suit by stating that, they are in continuous possession and enjoyment of the property, to the knowledge of the plaintiff, for more than 30 years. In the written statement filed in O.S.No.29/1/1964, i.e., Ex.P.21, the defendants have made it very clear that they are not claiming any right over the property, but they only seek right to worship, draw water and to have an access to the temple. Thereafter they have not admitted the ownership of the plaintiff nor asserted their claim adversely to the interest of the plaintiff.
85. Under Article 64 of the Limitation Act for seeking possession of the immovable property based on previous possession, the period of limitation will be 12 years, from the date of dispossession. But in the present case, the plaintiff is claiming possession of the property based on title. Therefore Article 65 of the Limitation Act could be made applicable. As per Article 65 for possession of the immovable property based on title, the period of limitation will be 12 years, when the possession of the defendant becomes adverse to the plaintiff.
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 When it is not the contention of the defendants that they are in possession of the property adversely to the interest of the plaintiff, the defendants cannot contend that the suit is barred by limitation.
86. The Hon'ble Apex Court in the very recent decision in M.Radheshyamlal Vs. V.Sandhya and another Etc.5 considered the principle of adverse possession in the light of its earlier pronouncements and held in paragraph Nos.10 to 12 as under:
10. As far as the plea of adverse possession is concerned, a Constitution Bench of this Court in the case of M. Siddiq (Ram Janmabhumi Temple-5 J.) v.
Suresh Das6 , in paragraph 1142 and 1143 has held thus:
"1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit No. 4 ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then 5 Civil Appeal Nos.4322-4324 of 2024 D.D.18.03.2024 6 (2020) 1 SCC 1
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 necessary to assess as to whether the claim of adverse possession has been established. 1143. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading Para 11(a), it becomes evident that beyond stating that the Muslims have been in long, exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence."
(Underline supplied)
11. In the case of Karnataka Board of Wakf v. Govt. of India and Ors.7, in paragraph 11, this Court has laid down the law regarding the plea of adverse possession. Paragraph 11 reads thus:
"11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is 7 (2004)10SCC799
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254] , Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N. Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567] .) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128]"
(Underline supplied)
12. Therefore, to prove the plea of adverse possession:-
(a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner;
(b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
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(c) The plaintiff must also plead and establish when he came into possession; and
(d) The plaintiff must establish that his possession was open and undisturbed.
It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff."
Thus the principle governing the plea of adverse possession is very well settled as stated above.
87. Even though the defendants are contending that the suit is barred by limitation, they have never taken the plea of adverse possession specifically. When the defendants are neither admitting the ownership of the plaintiff, nor claiming ownership by adverse possession, the question of applying Section 65 of the Limitation Act, does not arise. Under Such circumstances, it cannot be held that defendant No.1 had any right over the schedule property prior to Ex.D.25.
88. The appellant has contended that defendant No.1- Committee was not a party either in O.S.No.29/1/1964 or in O.S.No.127/1978 and the said suits were filed against few individuals. It is not the contention of defendant No.1 that it
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 was in existence prior to 1989. The documents placed before the Court discloses that only after issuance of the notification dated 20.06.1989 as per Ex.D.24, a proposal was sent to the Government to form the Committee and only thereafter the notification as per Ex.D.25 was issued on 06.07.1989, whereunder defendant No.1-Committee was constituted.
89. In view of the settled position of law as highlighted above, I do not find any merits in the contention taken by the defendants in the present suit as the defendants have not admitted the ownership of the plaintiff nor proved any of the requirements to seek title by adverse possession and therefore they cannot succeed in their defence. When no adverse possession was claimed, the question of applying Article 65 of the Limitation Act, does not arise. In view of the same, the contention taken by the defendants that the suit of the plaintiff is barred by limitation also falls to the ground. The Contention Regarding Endowment Property;
90. It is interesting to note that defendants are not claiming independent right over the suit property, but it is their contention that since the land is endowment property and it is
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 notified as such, in the year 1989, defendant No.1-Committee has right over the property and entitled to be in possession of the same. The notification in question was issued by the Government on 20.06.1989. Whereas the present suit was came to be filed on 22.08.1989. Therefore it is clear that notification of land as an endowment was just before filing of the suit. In other words immediately after issuing the notification the plaintiff approached the Civil Court for declaration of his title.
91. The notification of endowment dated 20.06.1989 is produced as per Ex.D.24, according to which, an application has been submitted to the office of the Tahasilar and intimation has been received from the reliable sources on behalf of the president of Sri Balaji Mandir Panch Committee, that 1.18 acres of land in Sy.No.156 of Basavakalyan village i.e., suit property is the endowed property. Therefore it is notified for information of the public under Section 6 of the Endowment Regulations, calling upon the objections from the general public to enter it in the book of endowment. Therefore it is clear that it was only at the instance of defendants, the notification was issued and later the Committee i.e., defendant No.1 was constituted to manage
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 the affairs of the temple. Immediately after issuance of the notification as per Ex.D.24, the present suit was came to be filed by the plaintiff seeking declaration of his title against the defendants. However, the Government is not made as a party, but the notification referred to above discloses that the Government is not interested in denying the right of the plaintiff, but it is only the defendants who gave information and managed to get it notified, calling for objections from the general public to declare it as an endowment property. They are also successful in constituting the Committee through the Endowment Commissioner.
92. The Hyderabad Government Endowment Regulations, 1349 Fasli was governing the management and security of endowed property, which was also applicable to Kalaburagi region, before passing of Karnataka Hindu Religious Institutions and Charitable Endowment Act, 1997 which came into effect from 01.05.2003. The statement of objects and reasons to enact the new Act of 1997 discloses that different enactments were made applicable to different parts of Karnataka, bifurcating it as Bombay Karnataka, governed by Bombay Public Trust Act, 1950, The Old Madras region
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 governed by the Madras Hindu Religious Charitable Endowment Act, 1951, Madikeri region governed by Coorg Temple Funds Management Act, 1956 and Coorg Temple Funds Management Regulations 1892, Old Mysore region governed by Mysore Religious Charitable Institutions Act, 1927, Hyderabad Karnataka region governed by the Hyderabad Endowment Regulations 1349 Fasli etc., It was proposed to enact the new law to replace these several local enactments and to bring about the uniformity in the matter of regulating various charitable endowments and thus the Karnataka Hindu Religious Institutions and Endowment Act, 1997 came into effect. Since the property in question in the present case is situated in Basavaklyana of Kalaburagi district, admittedly, the Hyderabad Endowment Regulations 1349 Fasli (hereinafter referred to as "the Regulation 1349 Fasli") was applicable prior to 01.05.2003.
93. As per the definition to the ward 'endowment' in the Regulation 1349 Fasli, every transfer of property which any person may have made for religious purposes or charity or public utility will be called as 'endowment' and the endowed property refers to the property which is transferred in this way.
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 'Endower' is the person transferring the property as above. Therefore, it is clear that when a property belonging to a person is transferred for religious purpose or for charity or public utility, then only it can be considered as endowment property and not otherwise.
94. Ex.D.24 is the notification on which defendant No.1- appellant is placing reliance to contend that the property in question is the endowment property. This notification dated 20.06.1989 was issued under Rule 29 of Hyderabad Religious Endowment Rule 1355 Fasli. As per Rule 29, on production of the document of endowment or on receipt of intimation in some other reliable way, the Director of Religious and Charitable Endowments of the Taluk is entitled to take action in the matter of the endowment, if satisfied prima facie about any property being endowed and if it is found that the property has not been entered in the book of endowments, then it shall be the duty of the such officer to publish the notification as per Schedule 5 in the Tahasil Office and in the concerned office of Hyderabad. The period of such notification will be two months. Rule 30 prescribes the procedure where within prescribed period an intervention application or objection petition is received. Rule
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 31 refers to a situation where no objection petition is submitted by any person for the notification under Rule 29, within the period of notification and it is proved that the property has been endowed property and only then, the property will be entered in the register maintained in that regard. It is only then the property will assume the Characteristics of endowed/ endowment property.
95. On going through Ex.D.24 dated 20.06.1989 which was issued under schedule 5 Rule 29 of the Regulations 1349 Fasli, it is the appellant who gave information to the Tahasildar of Basavaklyana Taluk that the property in question is a endowed property and therefore a notification was issued calling for objections for registering the particulars of the schedule property in the endowment register. The same is followed by a proposal being sent by the Deputy Commissioner to the Government to approve the formation of the temple Committee, as per Ex.D.25 dated 06.07.1989. That means to say, within the period of two months from Ex.D.24, which is dated 20.09.1989, a recommendation was made by the Deputy Commissioner, assuming that the temple in question is an endowed property.
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96. When it is the requirement of law that there must be a transfer of the property for a particular purpose to treat the same as an endowed property, the burden lies on the defendant to prove such transfer or dedication of the suit property as required under law. They should also prove that the requirements under the Regulations 1349 are complied with to treat the property as an endowed property. But the documents placed before the Court disclose that initially the property was the patta holding of Narasingdas and after him Manohar Buwa and thereafter of Ganapath Buwa, which was subsequently inherited by the plaintiff. Nothing is placed on record to show that there was transfer or dedication of the property for the religious purpose or charity or public utility by any of these pattadars. Mere issuance of notification as per Ex.D.24 under Schedule 5 Rule 29 will not change the nature of the patta land into an endowment property. It cannot be ignored that in O.S.No.29/1/1964 in view of the similar contention taken therein that the property in question is the endowed property, Issue No.3 as referred to above was framed and it was held that the Balaji Mandir is not an endowed property.
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97. It is also pertinent to note that first step taken to treat the property as an endowment property is by issuing the notification as per Ex.D.24 on 20.06.1989. Till then, the property was referred to as patta property in all the relevant documents, including the sale deed Ex.D.14, which is of the year 1932, where there is reference to the Balaji Mandir in the patta land of the pattadar-Narasingdas and subsequently in Ex.P.15 where the property was proposed to be acquired. The suit was came to be filed immediately after issuance of Ex.D.24 notification. In the absence of the primary requirement of law i.e., transfer/dedication of the property by any person for religious purposes, the property cannot be termed as endowed property. Under such circumstances, a patta land cannot assume the characteristics of endowed property, as defined under the Regulations 1349 Fasli, by mere publishing the public notice as per Ex.D.24, calling for objections, without complying with the other requirements of law.
98. Admittedly, no official notification was issued to treat the property as an endowment property, after considering the objections from the general public, if any. Admittedly, the plaintiff was never notified about issuance of this notification as
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 per Ex.D.24, even though his name was appearing in the Record of Rights as pattadar and he was fighting the litigation since 1964.
99. It is also pertinent to note that the said notification as per Ex.D.24 was cancelled vide order dated 20.10.2000 by the Government produced as per Ex.P.23. The State Government considered the notification issued by the Tahasildar as per Ex.P.D.24 and found that the said notification is without compliance of Rule 29(1) of Charitable Endowment Rules and recalled the notification. It is the defendant who challenged the said order of cancellation by filing W.P.No.9991/2001, which was came to be allowed and the order dated 20.10.2000 passed by the State Government was set aside. The matter is remitted to the State Government for reconsideration in accordance with law.
100. Admittedly, the plaintiff filed W.P.Nos.82845- 846/2011 challenging the restoration of the order treating the property as an endowment property. The same was came to be dismissed vide order dated 16.04.2013. W.A.Nos.50365- 366/2013 also came to be dismissed. However, holding that the
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 said issue is to be decided by the Civil Court. Even though the plaintiff has challenged the decision of the Division Bench of this Court in writ appeal by filing SLA.Nos.2683-2684/2015, the same were came to be dismissed vide order dated 09.02.2015, making it clear that dismissal of the special leave appeals as well as the order of the High Court challenged therein, it will not affect the merits of the appeal filed against the decree in favour of petitioners in O.S.No.55/1993, which is being considered in this appeal. Meaning thereby the appeals were dismissed, keeping open the contentions of the parties for the decision of the Civil Court in the present appeal.
101. In view of the discussion held above, I have no hesitation to hold that the suit property including the Balaji Mandir was never an endowment property as contended by the defendants. Therefore I am of the opinion that the schedule property is not the endowment property as tried to be projected by the defendants and hence, the jurisdiction of the Civil Court is not barred to try the suit.
102. It is only the contention of the defendants that since property is notified as an endowment property they are
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 entitled to be in possession of the same and the plaintiff is not entitled for any relief. But the declaration of the property as endowment itself is in dispute and the contention raised by the defendants in that regard is rejected. Therefore I am of the opinion that the appellant is not successful in establishing its contention that the suit property is the pot-kharab-(b) or that the suit of the plaintiff is barred by res-judicata or it is barred by limitation or that the Civil Court has no jurisdiction since the property is an endowment property.
The Conclusion;
103. The plaintiff has approached the Court seeking declaration and possession of the property. The burden is on the plaintiff to prove issue Nos.1 to 4. The plaintiff by examining himself as PW.1 and by producing the documentary evidence is successful in proving the title of his predecessor in interest over the suit property measuring 1.18 acres of land along with the Balaji Temple. The revenue records would disclose that the same stood in the name of Manohar Buwa. After his death in the name of Ganapath Buwa. Thereafter in the name of plaintiff and there is no reason to dispute the ownership of the suit property. When the plaintiff is successful
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 in proving issue Nos.1 to 4, the burden shifts on the defendants to establish their contention. Except denying the right of the plaintiff to claim declaration and possession, the defendants have not placed any materials to substantiate their defence as taken in the written statement. It is relevant to note that even through the suit of the plaintiff for declaration is decree in respect of the entire suit schedule property, the property excluding the temple is ordered to be handed over to the plaintiff.
104. I have gone through the impugned judgment and decree passed by the Trial Court. It has considered the oral and documentary evidence placed before it to record a specific finding on each of the issues. When the matter was taken up in first appeal in R.A.No.40/2013 along with R.A.No.45/2013, the First Appellate Court again considered the materials afresh and recorded the concurrent finding and upheld the judgment and decree passed by the Trial Court.
105. The appellant is in second appeal, under Section 100 of CPC. In case of second appeal against the concurrent findings by the Trial Court and the First Appellate Court, the
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 scope of interference will be very minimum that too only if this Court is satisfied that the case involves substantial questions of law.
106. It is settled proposition of law that this Court is not suppose to undertake task of re-appreciation of the evidence on record. If substantial questions of law would arise for consideration and if this Court finds that the Trial Court and the First Appellate Court misdirected themselves in appreciating the questions of law and fact and there was perversity in arriving at a conclusion, then only such a judgment and decree could be interfered with. It is also the settled proposition of law that even if this Court could form a different opinion on the same set of facts and materials than the one formed by the Trial Court and the First Appellate Court, the same cannot be a reason for interfering with the concurrent findings recorded by the earlier Courts.
107. The Hon'ble Apex Court in the case of T.Ramalingeswar Rao(Dead) Through Legal
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 Representatives and another Vs. N.Madhava Rao and others8 held in paragraph Nos.10 to 12 as follows:
10. In our view, the trial court and the first appellate court on appreciating the evidence of the parties had rightly come to a conclusion that the plaintiffs failed to prove the ingredients necessary for the grant of perpetual injunction.
11. When the two courts below have recorded concurrent findings of fact against the plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High Court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be wholly perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.
12. Such was not the case made out in the High Court. It is for this reason, we are of the view that the High Court should not have interfered in the findings of the two courts below and instead, the findings should have been upheld by the High Court.
108. The Apex Court in the case of Madhavan Nair Vs. Bhaskar Pillai (dead) by LRs.9 has held as under:
In the present case, the first appellate court has neither ignored any material evidence having bearing on the decision of the case nor considered any evidence which was otherwise not admissible. Therefore, the High Court was not at all justified in interfering with the concurrent findings of fact. It is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.8
2019 (4) SCC 608 9 2005 (10) SCC 553
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NC: 2024:KHC-K:2734 RSA No. 200425 of 2015 Thus the position of law is very well settled.
109. On going through the impugned judgment and decree passed by the Trial Court, confirmed by the First Appellate Court, I am of the opinion that both the Courts have considered the materials on record in the light of the rival contentions in the right perspective and there is no reason to interfere with the same.
110. In view of the above, I do not find any merits in the contention taken by the defendants as found in the substantial question of law and additional substantial questions of law. Hence, the same are answered against the appellant and in favour of the respondent/plaintiff and I proceed to pass the following;
ORDER The appeal is dismissed with costs.
Registry is directed to send back the Trial Court Records along with the copy of this judgment forthwith.
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JUDGE SRT/Swk/EM/CT-ASC List No.: 19 Sl No.: 1