Karnataka High Court
Sadashiva Madhyastha Since Deceased ... vs Sri Padematha Vinayaka Temple on 5 November, 2024
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NC: 2024:KHC:44403
RSA No. 543 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 543 OF 2024 (POS)
BETWEEN:
SADASHIVA MADHYASTHA
SINCE DECEASED
INDRAMMA
W/O LATE SADASHIVA MADYASTHA
(SINCE DEAD)
1. VIJAYALAKSHMI
AGED ABOUT 62 YEARS
W/O SURESH M
D/O LATE SADASHIVA MADHYASTHA
R/AT H.NO. 2-70
NEELAVARA POST AND VILLAGE
Digitally signed BRAHMAVARA, UDUPI 576213
by B VEENA
KUMARI
2. SRI. SHIVARAMA MADHYASTHA
Location:
HIGH COURT AGED ABOUT 59 YEARS
OF S/O LATE SADASHIVA MDHYASTHA
KARNATAKA C/O RENUKA LODGE
OLD BUS STAND, HUBLI 580 029
3. SMT. SUJATHA
AGED ABOUT 56 YEARS
W/O. P. NAGESH
D/O LATE SADASHIVA MADHYASTHA
NO. 23424/2
SUBRAMANYA NAGAR
BENGLAURU 560 021
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NC: 2024:KHC:44403
RSA No. 543 of 2024
4. SRI. NARASIMHA MADHYASTHA
AGED ABOUT 52 YEARS
S/O LATE SADASHIVA MADHYASTHA
R/AT H.NO. 2-70,
NEELAVARA POST AND VILLAGE
BRAHMAVARA, UDUPI 576213
5. SRI. SATHISH MADHYASTHA
AGED ABOUT 50 YEARS
S/O LATE SADASHIVA MADHYASTHA
NO. 81, DEENCE COLONY
SAHAKAR NAGAR
BENGALURU 560 092
...APPELLANTS
(BY SRI. RAMESHCHANDRA., ADVOCATE)
AND:
1. SRI PADEMATHA VINAYAKA TEMPLE
NEELAVARA VILLAGE
BRAHMAVARA,
UDUPI TALUK AND DISTRICT 576213
2. RAMANATH MADHYASTHA
S/O VIJAYARAGHAVA MADHYASTHA
AGED ABOUT 67 YEARS
NEELAVARA VILLAGE, BRAHMAVARA
UDUPI TALUK AND DISTRICT 576213
...RESPONDENTS
(BY SRI. SAMPAT ANAND SHETTY., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 07.12.2023
PASSED IN RA NO.6/2019 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, UDUPI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 29.11.2018 PASSED IN OS.No. 365/1968 ON THE FILE
OF THE ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI.
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NC: 2024:KHC:44403
RSA No. 543 of 2024
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed challenging the judgment and decree dated 07.12.2023 passed in R.A.No.6/2019 by the Principal Senior Civil Judge and CJM, Udupi and judgment and decree dated 29.11.2018 passed in O.S.No.365/1968 by the Additional Civil Judge and JMFC, Udupi.
2. For convenience, parties are referred to as per their ranking before the trial Court. The appellants were the defendants, and respondents were the plaintiffs.
3. The plaintiffs filed a suit for partition of plaint 'A' schedule property and past and future means profit with interest. It is the case of the plaintiff, 'A' schedule property belongs to the plaintiff temple of muli right. To utilize the produce thereof for fasli 1377 ending on 30.06.1968 was auctioned by the plaintiff through a public -4- NC: 2024:KHC:44403 RSA No. 543 of 2024 auction held on 09.07.1967, and defendant No.1 was the successful bidder. Defendant No.1 entered into possession of 'A' schedule property as a licensee under the plaintiff on a premium of Rs.45/- for one year, subject to terms and conditions of the auction. As per the terms of the auction, the defendant was to execute an agreement or bond in favour of the plaintiff within one week from the date of auction and only on the issuance of notice, defendant executed a bond on 18.08.1967 in favour of plaintiff.
As per the terms of the bond, the defendant was bound to surrender the vacant possession of the plaint 'A' schedule property in favour of the plaintiff at the end of fasli 1377, i.e., on 01.07.1968. Defendant No.1 has no right to continue in possession and enjoyment of plaint 'A' schedule property after 30.06.1968. The plaintiff issued notice on 16.06.1968 for defendant No.1, calling upon defendant No.1 to surrender vacant possession of plaint 'A' schedule property on 01.07.1968. The defendant replied to the legal notice and declined to vacate and hand over -5- NC: 2024:KHC:44403 RSA No. 543 of 2024 'A' schedule property. Hence, a cause of action arises for the plaintiff to file a suit for possession and means profit.
4. Defendant No.1 filed a written statement denying the averments made in the plaint. It is contended that defendant No.1 is not in possession of the suit schedule property as a licensee. It is contended that he had obtained the said property on Chalageni from the plaintiff as an agriculture tenant. The plaintiff "Deveru" is not properly represented in the suit.
5. It is contended that 3 acres 82 guntas of warga properties of the plaintiff temple held by defendant No.1 and his people for the last 18 to 20 years. The said extent of the land being held by the family of defendant No.1 before on Chalageni, as they held on an annual rental of Rs.17/- in cash. Initially, the said land was a dry land, and the defendants worked out and made the land a wetland by converting a portion of the land and putting it upon farm sheds. The defendants have incurred huge expenses for converting the suit property.
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NC: 2024:KHC:44403 RSA No. 543 of 2024
6. During the pendency of the suit, the original defendant died. His legal representatives were brought on record as defendants No.2 to 7. Defendant No.6 filed an additional written statement reiterating the averments made in the written statement filed by defendant No.1. It is further contended that the Karnataka Land Reforms Act came into force on 02.10.1965. As on that date the defendant No.1 was cultivating the land measuring 2 acres 03 guntas of land as a Chalageni tenant and unless he surrenders the said property in favour of the plaintiff temple, the said property cannot put for auction. He submits that the Land Tribunal allowed the applications filed by the defendants. The High Court, rejected the claim of defendant No.1 and a writ appeal was filed and the writ appeal was dismissed on the ground of delay. Hence, prays to dismiss the suit.
7. The trial Court, based on the aforesaid pleadings, framed the relevant issues. -7-
NC: 2024:KHC:44403 RSA No. 543 of 2024
8. To prove the plaintiff's case, the trustee was examined as PW-1. He died during the pendency of the suit, hence, he could not be available for the cross examination. Therefore, plaintiff examined another trustee as PW-2 and marked 10 documents as Ex.P.1 to Ex.P.10. In rebuttal, defendant No.6 examined himself as DW-1 and marked 14 documents as Ex.D.1 to Ex.D.14 and also examined one witness as DW-2.
After recording the evidence, the trial Court, on the assessment of oral and documentary evidence, decreed the suit of the plaintiff with cost and directed the defendants No.2 to 7 to hand over the vacant possession of the suit property to the plaintiffs on or before 29.01.2019 and further held that there shall be a separate enquiry under Order 20 Rule 12 of CPC regarding mesne profit.
9. The legal heirs of defendant No.1 i.e., defendants No.2 to 7 aggrieved by the judgment and -8- NC: 2024:KHC:44403 RSA No. 543 of 2024 decree passed in O.S.No.365/1968, preferred an appeal in R.A.N.6/2019 on the file of Principal Senior Civil Judge and CJM, Udupi. The appellate Court, on reassessment of oral and documentary evidence, dismissed the appeal with a cost and confirmed the judgment and decree passed by the trial Court. The legal representatives of the deceased defendant i.e., defendants No.2 to 7, aggrieved by the impugned judgments, have filed this regular second appeal.
10. Heard the learned counsel for the legal representatives of the deceased defendant No1 i.e., defendants No.2 to 7.
11. The learned counsel for the legal representatives of the deceased defendant submits that the Courts below committed an error in passing the impugned judgments. He further submits that this Court in writ petition No.26583/1992 has no jurisdiction to reject an application, and the order passed in the said writ petition is bad in the eyes of law. He submits only the -9- NC: 2024:KHC:44403 RSA No. 543 of 2024 Land Tribunal has jurisdiction to accept or reject the application. The Courts below have committed an error in relying on the order passed in W.P.No.26583/1992. He submits that the order passed in the aforesaid writ petition is outcome of fraud on the Court. He further submits that the suit was dismissed for default on 20.10.1973 and took up the matter on application filed to bring the legal representatives and passed impugned judgment. Hence, on these grounds, he prays to allow the appeal.
12. Perused the records and considered the submissions of the learned counsel for the legal representatives of deceased defendant i.e., defendants No.2 to 7.
13. The trustee of the plaintiff was examined as PW-2. He reiterated the plaint averments in the examination-in-chief and produced the certified copy of the order further, to establish that the deceased defendant was a tenant; the plaintiffs produced the agreement executed by the defendants, which discloses that the
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NC: 2024:KHC:44403 RSA No. 543 of 2024 defendant No.1 was in possession of 'A' schedule property as a Chalageni. Further, the plaintiffs have issued two notices as per Exs.P.6 and P.8 calling upon the defendant No.1 to vacate and hand over the possession of the suit schedule property. Defendant No.1 did not reply to the legal notices.
Ex.P.4 was executed on 18.08.1967, as the said document is 30 year old document, which has a presumptive value under Section 90 of the Evidence Act. Regarding the execution, the plaintiffs by producing Ex.P.4 establish that the defendants are in possession of the suit schedule property as a tenant.
14. In rebuttal legal representative of deceased defendant No.1 was examined as DW-1. He reiterated the written statement averments in the examination-in-chief and to establish that the defendant produced Ex.D.1, which is the money order receipt regarding the payment of Geni and Exs.D.2 and D.3 are Chalageni edurunudi, Ex.D.4 is the certified copy of Form No.7, Ex.D.5 and D.6 are the
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NC: 2024:KHC:44403 RSA No. 543 of 2024 orders of the Land Tribunal which discloses that occupancy right was granted in favour of the defendant No.1, Ex.D.7 is Form No.10, Ex.D.8 is RTC, Ex.D.9 is a certified copy of Form No-7, Exs.D.10 to D.12 are the certified copies of the statement before the Land Tribunal. Ex.D.13 is the acknowledgement. Ex.D.14 is the receipt.
15. The Land Tribunal granted occupancy right in favour of defendant No.1. Plaintiff aggrieved by the orders passed by the Land Tribunal, preferred a writ petition in W.P.No.26583/1992. This Court vide order dated 24.08.1999 allowed the writ petition. While allowing a writ petition this Court has observed as under:
"The order of the Tribunal granting occupancy rights to the legal representatives of the previous alleged tenants is challenged in this writ petition by the Vinayaka Temple. It is seen that one Sadashiva Madhyastha was successful bidder for enjoyment of the property of the temple by public auction held on 9.7.1967 and the auction was for a particular period and he has to surrender vacant possession on the expiry of the period. Instead of surrendering the vacant possession as he continued to be in possession, the appellant filed a suit O.S.365/1968 and the suit was pending on the date of filing of the writ petition. In the said circumstances, the said Sadashiva cannot be
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NC: 2024:KHC:44403 RSA No. 543 of 2024 considered as a tenant within the meaning of the Land Reforms Act to enable him to file an application for claiming occupancy rights. Though the matter came before this Court and remanded back the Tribunal adopted the same standard and held the Lrs of Sadashiva as tenant and held the land as tenanted land. It is this order which attached before me.
2. Once a land is given at an auction for a particular period the person cannot be construed as a tenant within the meaning of Karnataka Land Reforms Act. Consequently, I hold that originally Sadashiva is not a tenant and consequently his LRs. The order of the Land Tribunal is bad and the same is set aside. The petition is allowed."
16. From the perusal of the order passed by this Court in the aforesaid writ petition, wherein, this Court has recorded a finding that defendant is not a tenant but he is a auction purchaser. This Court rejected Form-7 filed by the defendant Sadashiv. The defendant aggrieved by the order passed in the writ petition and writ appeal, preferred SLP before the Hon'ble Apex Court. The SLP was dismissed. The finding recorded by this Court in writ petition No.26583/1992 has attained finality. The defendant cannot contend that the order passed by this court in W.P.No.26583/1992 is without jurisdiction.
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NC: 2024:KHC:44403 RSA No. 543 of 2024
17. This Court has already recorded a finding that the defendant is not a tenant but he is an auction purchaser and rejected Form -7. The trial Court based on the records, produced by the parties, recorded a finding that the defendant was put in possession of the suit schedule property as a licensee. The appellate Court while dismissing the appeal has recorded a finding which reads as under:
"22. It is unfortunate that for more than 55 years the respondent temple is unable to secure the vacant possession of the suit schedule property. The period of litigation speaks volume for the invain effort of the respondent temple in obtaining possession of the suit schedule property. It also reflects upon the lethargic efforts put in by the respondent temple and its officials in pursuing the litigation. It is to be noted here that this Court had not granted any stay of the operation of the impugned judgment. However it is forthcoming that the respondent temple has not taken any steps for executing the judgment passed by the Trial Court."
18. As the defendants have enjoyed the properties for more than 60 years, both the Courts below have considered the entire material placed on record and had
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NC: 2024:KHC:44403 RSA No. 543 of 2024 rightly passed the impugned judgment. Both the Courts below have concurrently recorded the finding and the facts against the defendant.
19. I do not find any error in the impugned judgment or any substantial question of law that arises for consideration in this appeal.
20. Accordingly, I proceed to pass the following:
ORDER
1. The appeal is dismissed.
2. The judgment and decree dated 07.12.2023 passed in R.A.No.6/2019 by the Principal Senior Civil Judge and CJM, Udupi and judgment and decree dated 29.11.2018 passed in O.S.No.365/1968 by the Additional Civil Judge and JMFC, Udupi are hereby confirmed.
No order as to the cost.
Sd/-
(ASHOK S.KINAGI) JUDGE BVK