Karnataka High Court
Abdul Munaf vs K T Nanjappa on 26 September, 2013
Author: B.S.Patil
Bench: B.S.Patil
RFA 1377/2004
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
R.F.A.1377/2004
BETWEEN
1.ABDUL MUNAF
S/O IMAM SAB
75 YRS,
BHARATHICORK INDUSTRIES,
GERAHALLI, KORA HOBLI,
TUMKUR TQ. AND DIST.,
2.K SURYANARAYANA SETTY
S/O KRISHNAIAH SETTY
65 YRS,
BALAJI TALKIES
MAIN ROAD,KORATAGERE,
TUMKUR DIST.,
3.K NAGARAJASETTY
S/O KRISHANAIAH SETTY
52 YRS, BALAJI TEXTILES,
MAIN ROAD, KORATAGERE TOWN,
TUMKUR DIST.,
... APPELLANTS
(BY SRI AJOY KUMAR PATIL, ADV.)
AND
1.K T NANJAPPA
S/O THIMMARAYAPPA
RFA 1377/2004
2
BY THE SUB-REGISTRAR
SETTIBANAJIGAR BY CASTE,
R/AT KORATAGERE TOWN,
TUMKUR DIST.,
2.R N HANUMANTHANAIK
S/O NAGESHAPPA
NAYAK BY CASTE ,80 YRS,
RETD. CLERK DEPT. OF EDUCATION,
KORATAGERE, TUMKUR DIST,
3.V RUDRAIAH S/O VEERAPPPA
RETD. DEPUTY INSPECTOR OF SCHOOLS,
LINGAYAT,
AGE: 85 YRS,
WESTERN EXTENTION, KORATAGERE,
TUMKUR DIST.,
4.L N NARASIMHA MURHTY
S/O LAKSHMINARASAPPA
AGE: 70 YRS,
NAYAKA BY CASTE, MUNICIPALCOUNCILLOR
MAIN ROAD, KORATAGERE
TOWN;TUMKUR DIST.,
5.RAM OBLAIAH S/O DODDARAMAIAH
HARIJAN
RETD.VLW
AGE: 80 YRS,
R/AT KORATAGERE (NEAR VETERINARY
HOSPITAL)
6.K P RAJANNA S/O PUTTARUDRAIAH
AGE :66 YRS,
LINGAYAT,
GANAPATHI TEMPLE STREET
KORATAGERE TOWN.
7.K N GOPALA SETTY
S/O BHEEMAIAH SETTY
AGE: 62 YRS,
GENERAL MERCHANT,
VYSYS BY CASTE,
MAIN ROAD, KORATAGERE TOWN,
TUMKUR DIST.,
RFA 1377/2004
3
8.K SANJEEVARAJA S/O HANUMANTHARAJU
AGE: 55 YRS,
MANJUNATHA INSTITUTE OF COMMERCE,
MAIN ROAD, KORATAGERE TOWN,
TUMKUR DIST.,
9.K G GOVINDAIAH S/O SANJEEVAIAH
AGE: 50 YRS,
SETTIBANAJIGAR CASTE,
ABHINAV ELECTRICAL STORES,
MAIN ROAD,KORATAGERE TOWN,
10.K N VEERANNA S/O HULIYAPPA
AGE: 66 YRS,
KURUNA BY CASTE
OCC;AGRIL,
THARIAMBAKESWARA TANK,
COLONY, KORATAGERE, TUMKUR DIST.,
11.K C JAYANNA S/O CHANDRASEKHARAIAH
SETTIBANAJIGAR BY CASTE
JAYA PRINTERS,
KORATAGERE,
TUMKUR DIST.,
12.K N KUMBAIAH
S/O NARASAPPA
AGE: 65 YRS,
MEDARY BY CASTE
EX-MUNICIPAL CJOUNCILLOR,
KORATAGERE TOWN,
TUMKUR DIST.,
13.K N NARASIMHAIAH
S/O NARASEEYAPPA
AGE: 66 YRS,
NAYAKA BY CASTE, HINDI
TEACHER,
KORATAGERE TOWN,
TUMKUR DIST.,
14.L NAGARAJ S/O THAMMAIAH
DEAD BY HIS LRS.
(A) LAKSHMIDEVI W/O LATE NAGARAJU
MAJOR
RFA 1377/2004
4
(B) N GIRISH S/O L NAGARAJU
MAJOR
(C) N SUNIL S/O L NAGARAJU
MAJOR
ALL ARE R/AT NO.117, BULL TEMPLE ROAD,
BASAVANGUDI,
BANGALORE.
15.K R GUNDAPPA S/O RAMAIAH
SINCE DECEASED BY HIS LRS.
(A) SEETHALAKSHMAMMA W/O LATE GUNDAPPA
MAJOR,
R/AT CHANDRAMOULESHWAR SWAMY
TEMPLE, ARCHAKA QUARTERS,
KORATAGERE TOWN,
(B) G VENKATRAMA S/O LATE K R GUNDAPPA
TOOL SECTION, SBML KGF 6.
(C) G NAGARAJU
S/O LATE K R GUNDAPPA
R/AT DHANDRAMOULESHWARA SWAMY
TEMPLE, ARCHAKA QUARTERS,
KORATAGERE.
(D) VIJAYALAKSHMI G
W/O C Y CHANDRASHEKAR
D/O K R GUNDAPPA
R/AT CHANDRAMOULESHWARA SWAMY
TEMPLE, ARCHAKA QUARTERS,
KORATAGERE.
(E) G.UMA DEVI D/O LATE K.R.GUNDAPPA
(F) G.RAMESH S/O LATE K.R.GUNDAPPA
(G) K.G.KRISHNAVANA
D/O K.N.GUNDAPPA
(E) TO (G) ARE R/O CHANDRAMOULESHWARA SWAMY
TEMPLE, ARCHAKA QUARTERS,
KORATAGERE TOWN.
(H) K G PADMAVATHI W/O MOHAN, CLERK
MLML, KGF-6
RFA 1377/2004
5
(I) SOWBHAGYAMMA W/O M N CHANDRASHEKA
D/O LATE K R GUNDAPPA
"SURESH NILAYA" SAPTHAGIRI ETN.,
BEHIND P.N.T - QRTS., TUMKUR.
16. SAROJAMMA W/O M N RAMAKRISHNAIAH SETTY
DEAD BY L.Rs.
(A) M H RAMAKRISHNA SETTY H/O SAROJAMMA
(B) M R MANJUNATHA SETTY S/O SAROJAMMA
R/O DODDAPET, TUMKUR.
17.SANJEEVARAYAPPA A. S/O ANNENAHALLI DODDEGOWDA
MAJOR, PROP: CYCLE SHOP
MAIN ROAD, KORATAGERE.
18.K.V.KRISHNAIAH SETTY
S/O HONDA VENKATARAMAIAH SETTY
MAJOR, GRAIN MERCHANT
DODDAPET, KORATAGERE.
19.N SUKUMAR S/O NAGAPPA
MAJOR, EXCISE CONTRACTOR,
MAIN ROAD, KORATAGERE.
20.JAYANNA S/O NAGAPPA
MAJOR, BARBER, MAIN ROAD,
KORATAGERE TOWN,
TUMKUR DISTRICT.
21.RANGASWAMY S/O H M RAMAIAH SETTY
MAJOR CHANDRA MOULESHWARA SWAMY
BLDG, MAIN ROAD, KORATAGERE
TUMKUR
22.K R PRAKASH S/O H M RAMAIAH SETTY
MAJOR CHANDRAMOULESHWARA SWAMY BLDG
MAIN ROAD, KORATAGERE
TUMKUR
23.K R ADVAPPA
BANGLE MERCHANT
MAJOR MAIN ROAD
KORATAGRE, TUMKUR
(DELETED VIDE COURT ORDER DT.26.8.05)
RFA 1377/2004
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24.DODDARAMAIAH
DEAD BY
(A) LAKSHMIDEVAMMA
W/O DODDARAMAIAH
(B) RANGANATH
S/O LATE DODDARAMAIAH
MAJOR
R/O DASARAHALLI KORATAGERE ROAD
TUMKUR
25.VENKATESH S/O THIMMAIAH
MAJOR
ELECTRICAL SHOP MAIN ROAD
KORATAGERE TOWN, TUMKUR
26.RAMAKKA W/O RAMAIAH SETTY
DEAD BY LRS
(A) A NAGARAJ SETTY S/O ASWATHAIAH SETTY
MAJOR, R/O KORATAGERE TOWN
TUMKUR
27.MARAKKA W/O VENKATAPPA
MAJOR
VEGETABLE MERCHANT
R/O KORATAGERE
TUMKUR
28.MANAGER
KSFC., TUMKUR
29.SPL. TAHSILDAR
KSFC., BANGALORE
NO18, CHRUCH STREET
BANGALORE
30.MANAGING DIRECTOR
KSFC., BNAGALORE
RURAL ZONE, NO 48, CHURCH STREET
BANGALORE
31.CHIEF SECRETARY
GOVT. OF KARNATAKA
VIDHANA SOUDHA
BANGALORE
RFA 1377/2004
7
32.DEPUTY COMMISSIONER
TUMKUR DIST
TUMKUR. ... RESPONDENTS
[BY SRI NITISH K.N., ADV. FOR SRI K V NARASIMHAN, ADV.
FOR C/R1 & 2,
SRI K.HANUMANTHARAYAPPA, ADV. FOR R3,
SRI N.SUBBA SHASTRY, ADV. FOR R15(A) TO (I),
SRI R.PRABHAKAR & SRI GOPAL SINGH, ADV. FOR R20, R21,
R24(A), R27,
SRI P.S.MALI PATIL, ADV. FOR R28-30,,
R4, 5, 6, 7, 8, 9, 10, 11, 12, 14(A)-(C), 16(A), 17, 18, 19, 22, 25,
26(A), 31, 32 - SERVED
APPEAL ABATED AS AGAINST R3 V/O DT. 1.2.2006,
APPEAL DISMISSED AS AGAINST R16(B), 24(B) V/O DT.22.3.06.]
THIS REGULAR FIRST APPEAL IS FILED U/SEC 96 CPC
AGAINST THE JUDGMENT AND DECREE DATED: 30.10.2004
PASSED IN OS.NO. 1/1984, ON THE FILE OF THE PRL.DISTRICT
JUDGE, TUMKUR, DECREEING THE SUIT FILED BY THE
RESPONDENTS 1 TO 13 HEREIN TO REMOVE RESPONDENTS 14
AND 15 FROM THE MANAGEMENT OF THE SUIT PROPERTY, FOR
SETTLING A SCHEME BY APPOINTING A COMMITTEE TO MANAGE
THE SUIT PROPERTY SUBJECT TO REMOVAL OF THE MEMBERS
OF THE COMMITTEE OR ALTER THE COMMITEE WHENEVER IT IS
NECESSARY, AND TO CALL FOR ACCOUNTS OF THE
MANAGEMENT OF THE SUIT PROPERTY FROM THE RESPONDENTS
14 AND 15.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This Regular First Appeal is directed against the judgment and decree dated 30.10.2004 passed by the Principal District Judge, Tumkur.
2. Appellants herein were defendants 3, 5 & 6 before the Trial Court. Respondents 1 to 13 herein were plaintiffs 1 to 13, RFA 1377/2004 8 whereas the other respondents herein were defendants before the Trial Court.
3. The suit was filed invoking Section 92 of CPC seeking removal of defendants 1 & 2 - deceased respondents 14 & 15 from the management of the suit property and for settling the scheme by appointing a committee to manage the suit property with a direction to the Deputy Commissioner - 22nd defendant to vest the suit property into the committee. Plaintiffs also sought for accounts of the management of the suit property from defendants 1 & 2.
4. The case of the plaintiffs is, that the suit property belonged to the public in general, which consisted of a temple premise of deities viz., Chandramouleswara Swamy, Ganapathi, Parvathi and Maruthi temple. It was further urged that quarters of the pujari, kitchen block, school building and other vacant place in and around the temple apart from 8 shops and one godown and land measuring 35 guntas were part and parcel of the said property, which is a public property of religious and charitable nature.
RFA 1377/20049
5. According to the plaint averments, people of all caste and community of Koratagere and other places were worshipping the deities. One Maddur Lingegowda was the Amaldar at Koratagere. He was a devotee of the deities. Having evinced interest to improve the suit property, he along with other devotees joined hands and got constructed steps to the suit property from Suvarnamukhi river. The management of property was entrusted to Srikantegowda who was the then Munsiff of Madhugiri and who had become the devotee of the temple. After him, the management of the property was entrusted to Janardana Nagalingachar and upon his death, the same was entrusted to his son Janardhana Nagappa. The averments made in the plaint further disclose that from 1954 onwards, the management of the property was entrusted to L.Nagaraj - 1st defendant who inturn entrusted the supervision work to one Archak by name Gundappa - 2nd defendant. Defendants 1 & 2 committed acts of waste and breach of trust. They attempted to deal with the suit property as their own. The 1st defendant sold 35 guntas of land to the 3rd defendant under a registered sale deed dated 08.10.1978 and the 3rd defendant installed a Sawmill in a portion of the same. Another sale deed was executed by the 1st defendant in favour of the 2nd defendant RFA 1377/2004 10 in respect of the vacant space abutting the temple, though the sale deed has not been registered.
6. Seven shops were sold by the 1st defendant including one godown existing in the suit property to the 5th & 6th defendant - appellants 2 & 3 herein under four registered sale deeds dated 07.01.1984. It is also alleged that the 1st defendant had sold another shop to the 4th defendant by registered sale deed dated 01.03.1978. The 3rd defendant inturn had sold two bits of lands in the area known as Huvinatota to the 9th defendant by sale deed dated 09.02.1983 and the 5th & 6th defendants mortgaged the property in favour of the 7th defendant with regard to another bit of Huvinatota portion. Thus, the plaint averments disclose that defendants 1 & 2 had dealt with the property treating them as their own properties and for their personal gains. The plaintiffs have also referred to the disputes with regard to some of these properties pending before the Assistant Commissioner, Deputy Commissioner and subsequently by way of writ petition before this Court.
7. It is seen from the plaint averments that the appellants herein had unsuccessfully challenged the notices issued by the Tahsildar directing their eviction from some of the suit RFA 1377/2004 11 properties. It is to be noticed here that after the matter was remanded to the Tahsildar, the Tahsildar dropped the proceedings recording a finding that the properties were the private properties of the 1st defendant. In the appeal presented before the Assistant Commissioner by the plaintiffs representing the temple, the Assistant Commissioner found that the properties belonged to the temple, but the 1st defendant was in adverse possession and had perfected his title by adverse possession. The findings recorded by the Assistant Commissioner was set aside by the Deputy Commissioner and the writ petition filed against the order of the Deputy Commissioner, was dismissed.
8. The suit was resisted by filing common written statement by defendants 1, 3, 5, 6 & 7. Defendants 2, 4, 9 and 10 to 17 filed separate written statements.
9. The 2nd defendant denied the averments made in the plaint. They asserted that the suit properties did not belong to the public at large. They asserted that the suit properties were the private properties of Maddur Lingegowda which was inherited later on by his son Annegowda and thereafter by his grandson Thammaiah along with his son - i.e., the 1st RFA 1377/2004 12 defendant - L.Nagaraju. They further contended that in their capacity as grandsons of Maddur Lingegowda, Srikantegowda, Thammaiah and Shamegowda managed the property by way of inheritance and not as trustees. The 2nd defendant claimed as the Archark of the property and asserted that he was managing the property in his capacity as General Power of Attorney holder of the 1st defendant.
10. The appellants herein who were defendants 3, 5 & 6 adopted the written statement filed by the 1st defendant, so also the 4th defendant. The 4th defendant also asserted certain additional facts.
11. The 9th defendant in his written statement asserted that the 3rd defendant had sold two bits of property in his favour on 09.02.1983 and that he was in possession of the same for the last 30 to 40 years.
12. Defendants 10 to 17 who were inducted as tenants in the premises filed written statement contending that the property belonged to the public and due to the mismanagement of the same, they were sold in favour of third parties. They admitted RFA 1377/2004 13 that they have not paid rent either to the purchaser or to the archak of the temple.
13. Based on the pleadings, the Trial Court framed the following issues:
i) Whether the suit schedule property is the public property belonging to the public at large or it is a public trust property?
ii) Whether the plaintiffs prove the entrustment of management of the plaint schedule property to the defendants 1 & 2?
iii) Whether the plaintiffs prove that the defendants 1 & 2 have mismanaged the plaint schedule property and thereby committed breach of trust?
iv) Whether the plaintiffs prove that defendants 1 & 2 or their LRs to be removed from the management of the suit schedule property?
v) Whether the plaintiffs prove for the settling, a scheme by appointing a committee to manage the suit schedule property?
vi) Whether the plaintiffs prove that they are entitled to call for the accounts of the management of the suit schedule property by the defendants 1 & 2 and their LRs?RFA 1377/2004
14
vii) Whether the suit schedule property was the private property of late Lingegowda as contended by the defendants 1, 2, 3, 5, 6 & 7?
viii) Whether the defendants 1 & 2 and their LRs are the absolute owners of the suit schedule property?
ix) Whether the defendant-4 proves that she has
become the absolute owner of her written
statement schedule property which is part and parcel of the suit schedule property?
x) Whether the 9th defendant has become the owner of the site mentioned in para-8 of the written statement which is part and parcel of the suit property?
xi) What order or decree?
14. On behalf of the plaintiffs, the 1st plaintiff was examined as PW-1. The purchaser from the 1st defendant was examined as PW-2. The Chief Officer of the Town Panchayat, Koratagere, was examined as PW-3 and the Taluk Surveyor was examined as PW-4. Exs.P-1 to P-40 were produced and marked in the evidence of the plaintiffs. On behalf of the defendants, the 3rd defendant was examined as DW-1 and the 12th defendant was RFA 1377/2004 15 examined as DW-2. Ex.D-1 was produced and marked in their evidence.
15. On consideration of the evidence on record, both oral and documentary, the Trial Court recorded findings holding that in view of the order dated 09.11.2001 passed by the High Court in W.P.Nos.18781/2000, 33519 & 33520/2000 and 30865/2000 upholding the order of the Deputy Commissioner and in the light of the judgment in Writ Appeals, wherein the order of the learned Single Judge was confirmed, it has to be held that the properties were not the private properties of either Maddur Lingegowda or his successors including the 1st defendant, but it was the property belonging to the temple and was utilized for the purpose of the affairs of the temple. Considerable reliance was placed on the observations made by the High Court in the aforementioned judgment while recording the finding to the above effect. The Trial Court further found that the defendants failed to show that the title vested in the 1st defendant or his purchasers over the suit property. The Trial Court observed that the burden was more on the 1st defendant to establish his title, in view of the definite findings of the High Court, wherein the order passed by the Deputy Commissioner was confirmed. RFA 1377/2004 16
16. By placing reliance Ex.P-5 - lease deed executed in the year 1898 which contained recitals that the Chatra belonged to Sri Chandramouleshwara temple and Ex.P-6 which disclosed that the sons of late Amaldar Ramaiah partitioned their family properties among themselves but did not include the suit property, the Trial Court inferred that the suit property was not the family property of Maddur Lingegowda. Similarly, Ex.P-8 -
resolution of the trust committee which resolved to perform Uthsava and to utilize the income derive from the buildings on behalf of the temple committee and another resolution - Ex.P-9 in connection with the same matter have been relied by the Trial Court, to hold that the suit property belonged to the temple. Ex.P-17 - another partition deed entered into between the 1st defendant and his brothers on 15.06.1964 where no mention was made about the suit properties has been referred to and relied upon. Similarly, reliance is placed on Exs.P-20 to P-23 - copies of the house list extracts, record of rights and other documents to support the said finding.
17. In addition, the Trial Court has discussed the evidence of the parties and after analyzing the same, has concluded that the plaintiffs have succeeded in establishing that the suit RFA 1377/2004 17 property belonged to the temple. The Trial Court has further held that the plaintiffs established that defendants 1 & 2 had indulged in mismanagement of the plaint schedule properties and committed acts of breach of trust and were therefore liable to be removed from the management of suit properties. As regards framing and settling the scheme by appointing a committee and for taking out accounts, the trial Court has issued certain directions. The directions issued are, that in the revenue records of the suit properties, the name of the temple shall be recorded as owner. The legal representatives of deceased defendants 1 & 2 were directed to submit accounts in respect of the suit property from the date of suit to the extent possible. The Deputy Commissioner has been directed to take charge of the management of the temples of the suit property until a scheme was settled in that regard. All the parties to the suit have been directed to submit the terms of the scheme to be settled in the name of Sri Chandramouleswaraswamy Group of Temples Trust within a month from the date of judgment.
18. Aggrieved by the said judgment and decree, the present appeal is filed by defendants 3, 5 & 6.
RFA 1377/200418
19. Mr. Ajoy Kumar Patil, learned Counsel appearing for the appellants submits that the scheme suit as filed under Section 92 CPC was not maintainable. Though considerable arguments was addressed by him by referring to Sections 17, 18, 40 & 40A of the Mysore Religious & Charitable Institutions Act, 1927, to support his contention that the suit itself was not maintainable, in the light of the judgment of the Apex Court in the case of SUDHIR G.ANGUR & ORS. VS M.SANJEEV & ORS. - AIR 2006 SC 351, these contentions are not pressed by him. In fact, in paragraphs 8 to 10 of the said judgment, the Apex Court after considering the effect of the provisions of the Mysore Act and the provisions contained under Section 92 CPC, has held that Section 40A of the Mysore Act categorically provides that a suit under Section 92 CPC is not barred, even though an order may have been passed by the Muzrai Officer or by the Government. It has further found that if a suit is not barred after an order is passed, then it obviously follows that the suit under Section 92 CPC will not be barred when no such order has been passed.
20. However, the other main contention advanced by the learned Counsel is, that the Trial Court erred in not framing the RFA 1377/2004 19 scheme and in issuing direction to the Deputy Commissioner to take charge of the management. He invites the attention of the Court to the operative portion of the judgment and decree, to contend that the Trial Court does not seem to have retained any further powers over the matter to frame the scheme or to constitute the committee along with various terms and conditions to be adhered.
21. He, next contends that as the plaintiffs had not sought for the relief of possession from the appellants herein who are the bona fide purchasers for valuable consideration from defendants 1 & 2, without there being a specific prayer, there could not be a direction for cancellation of instruments in their favour as provided under Section 31 of the Specific Relief Act, 1963 and particularly, without there being any relief for possession of the respective properties purchased by the appellants, the Trial Court could not have ordered that the Deputy Commissioner shall take charge of the suit property.
22. Elaborating the above submission, it is contended by him that even assuming that the findings recorded on the other contentious aspects by the Trial Court holding that the properties were the temple properties is to be confirmed, the RFA 1377/2004 20 observations made by the Trial Court that the Deputy Commissioner shall take charge of the management of the 'temples of the suit property' has to be understood as taking over management of the temple in the suit property and not to take over the suit properties from the possession of the appellants herein who are the purchasers. He submits that no portion of the temple or the precincts and surroundings of the temple are in the possession of the appellants. It is also contended that the appellants, as is evident from the registered sale deeds at Exs.P-26 & D-1, are in possession of the property measuring 35 guntas which is not part of the temple premises. He, therefore, submits that the appellants cannot be dispossessed from their properties which they have purchased as bona fide purchasers for valuable consideration over which they have perfected their title by adverse possession, in the absence of the plaintiffs seeking any such relief for possession. He submits that the possession of the portion of the land comprised in Sy. No.10 measuring 35 guntas consisting of 8 shops and a godown is also not ordered to be taken over even as per the judgment rendered by the trial Court which has to be clarified by this Court.
RFA 1377/200421
23. Sri Nitish, counsel appearing for K.V.Narasimhan takes me through the findings recorded and the judgment and decree passed in the trial Court. He takes me through the evidence including the documents produced before the trial Court to sustain the judgment under challenge. He has placed reliance on the judgment of the Division Bench of this Court in CHRISTOPHER KARKADA AND OTHERS VS. CHURCH OF SOUTH INDIA, REPRESENTED BY ITS MODERATOR AND OTHERS (ILR 2012 KAR 725) to contend that as the appellants and other defendants have been put in possession of the suit property under sale deeds, their possession become unauthorized and illegal and hence, they have no right to continue in possession of the suit property. He further points out that no plea of adverse possession has been taken by the appellants-defendants.
24. Having heard the learned Counsel for both the parties, the points that arise for consideration are:
1. Whether the trial Court was right and justified in recording a finding that the suit schedule properties were public properties belonging to the public at large held in trust for the benefit of the temple known as RFA 1377/2004 22 Chandramouleswara Swamy temple and other deities and not the properties belonging to one Maddur Lingegowda and upon his death, the same were succeeded by his legal representatives as absolute owners?
2. Whether the learned District Judge erred in passing the judgment and decree directing the Deputy Commissioner to take charge of the management of the temples of the suit properties without proceeding further to frame the scheme pursuant to the judgment rendered?
3. Whether the Court below was right and justified in directing that the suit properties shall vest in the temple under the title as Sri.Chandramouleswara Swamy Group of Temples Trust and the Deputy Commissioner shall take charge of the temples of the suit properties when the plaintiffs have not sought for the relief of possession from the appellants?
25. POINT NO.1:
The evidence on record particularly that of PW-1 and the documents produced before the trial Court discloses that apart from the order passed by the High Court in W.P.No.18781 of 2000 and connected cases disposed of on 09.11.2001 wherein the order passed by the Deputy Commissioner has been upheld RFA 1377/2004 23 holding that the properties were not the private properties of either Maddur Lingegowda or his successors, the fact that the suit property belonged to the temple and were utilized for the purpose of the affairs of the temple has been established by the plaintiffs and the properties were not the private property of the Maddur Lingegowda is also established by the plaintiffs by producing various documents such as Exs.P5 and P6. Ex.P5 is the lease deed executed in the year 1898 which recites that the choultry belonging to the Chandramouleswara temple had been leased and that the Munsiff of Madhugiri managed the affairs of the temple. Similarly, Ex.P6 is a partition deed entered into among the sons of Amaldar Ramaiah by names Shamegowda and Annaiah in respect of their family property. In the said document, no mention is made about the suit properties which falsify the claim of the 1st defendant that the suit property was his private property of the family.
26. Ex.P17 is another partition deed entered into between the 1st defendant and his brothers on 15.6.1964. There is no mention made about the suit properties in the said deed. This also probalises the fact that the suit properties were never treated as the family properties of the defendant No.1. Exs.P20 RFA 1377/2004 24 to P23 are the house list extracts and other revenue documents such as assessment lists of the buildings which also show that the suit property was entered as "Sarakari Chatra Kharab Eshwara Devalaya". Exs.P24 and P25 are the copies of index of lands and record of rights, which also disclose that the suit properties were shown as Government Kharab chatra.
27. In the background of these documents, if the evidence of PW-1 K.T.Nanjappa is examined, it is clear that he has deposed that Maddur Lingegowda was the Amaldar of Koratagere and was a great devotee of the deities; he showed interest in the improvement of the suit properties where temple stood and he made certain improvements for the same. After him, the management of the properties was looked after by Srikantegowda, the Munsiff of Madhugiri. Later on, Janardhana Nagalingachar looked after the suit properties and temples and after him, his son Janardhana Nagappa managed the suit properties. The version of the PW-1 with regard to the existence of the temple used by the public gets probalised by the documents placed on record.
28. On the contrary, no legally acceptable evidence, either oral or documentary is produced by the defendants to establish RFA 1377/2004 25 that the properties were the private and family properties of Maddur Lingegowda and upon his death, the said properties were succeeded to by his heirs. If that were to be so, the documents of title at least in the form of revenue records could have been traced and placed before the Court. As already adverted to above, the revenue records placed before the Court disclose that the properties were either recorded in the name of temple or in the name of government as kharab land. Hence, Point No.1 raised for consideration is answered against the appellants.
29. POINT NO.2:
Insofar as the contention urged by the counsel for the appellants that it is the District Judge who is competent to frame the scheme and that this task has to be discharged by the Court and the same cannot be delegated to anybody else is concerned, there can be little doubt about this position in law. The judgment in DHEERENDRA D.JAMBLE AND OTHERS VS. SRI.R.R.DIWAKAR AND OTHERS reported in 2013 (3) KCCR 2310 (DB) can be usefully referred here. The prayer in the suit filed under Section 92 of CPC would be for framing a scheme and the scheme has to be framed undoubtedly by the District RFA 1377/2004 26 Judge. In the above judgment, the Division Bench of this Court had occasion to refer to the decision of the Supreme Court in RAJE ANANDRAO VS. SHAMRAO AND OTHERS reported in (1961) 3 SCR 930, particularly, the observations contained in Para 11 of the said judgment which states that as per sub-
Section (1) of Section 92, the District Court has the power to settle a scheme. That power being comprehensive enough to permit the inclusion of a provision in the scheme itself which would make it alterable by the Court if and when found necessary in future to do so. It is further stated therein that a suit under Section 92 certainly comes to an end when a decree is passed therein, including the settlement of a scheme for the administration of the trust. In addition in the said case, question as to whether once the scheme is framed, whether the same could be modified later is also laid down. Suffice to notice that in terms of Section 92(1) of CPC, it is the District Court which has the power to settle the scheme. But the suit under Section 92 of CPC comes to end when a decree is passed therein including the settlement of a scheme for the administration of the trust. Meaning thereby that the proceedings will come to an end only after the framing of the scheme. Therefore, the District Judge is required to frame the RFA 1377/2004 27 scheme and it cannot be left to the will of anybody else including that of the Deputy Commissioner to deal with the properties and the affairs of the trust without framing a scheme.
30. It appears that the District Court has apparently, not proceeded with the framing of the scheme in view of the order of status-quo granted by this Court. Hence, issue No.2 is answered holding that it is the District Court which has to frame the scheme. I must add that such a step has to be taken by the District Court here afterwards, after the disposal of this appeal.
31. POINT NO.3:
The third point raised pertains to the contention urged regarding the possession of the appellants who claim to be the bonafide purchasers of the property for valuable consideration. It is not in dispute that all the appellants have purchased the properties at different point of time and have been in possession of the same. As is evident from Ex.P26, a registered sale deed dated 3.10.1978, the 1st appellant has purchased the property measuring 35 guntas and has been in possession of the same. Ex.P28 is another sale deed executed by the 5th defendant in RFA 1377/2004 28 favour of appellant No.2 in respect of the shop premises. Ex.P29 is another sale deed dated 7.1.1984 executed by defendant No.1 in favour of 6th defendant who is appellant No.3 in respect of another shop premises. It has come in evidence that right from the date of sale, the appellants have been in possession and enjoyment of these properties. The temple premises do not extend to any of these properties. It is indisputable fact that the plaintiffs have not sought for possession of these properties from the appellants. No relief is sought in the suit in this regard. As already adverted to above, the relief sought in the suit relates to removal of the trustees from the management of the temples and the suit property and for settling a scheme by appointing a committee to manage the suit property. It is perhaps for this reason the trial Court has not issued any direction in the judgment and decree regarding the possession to be delivered by these defendants in favour of the Deputy Commissioner though a direction is issued to the following effect:
"The Deputy Commissioner shall take charge of the management of the temples of the suit property until a scheme is settled in this regard".RFA 1377/2004
29
32. Counsel for the appellants is right and justified in submitting that this direction issued by the Court below cannot be construed as a direction to the appellants-defendants to deliver possession of the properties held by them to the Deputy Commissioner in the absence of a specific relief sought regarding the possession of the properties from the appellants and in the absence of any specific direction issued by the trial Court. Therefore, it cannot be held that based on the decree now passed the Deputy Commissioner is entitled to take possession of the properties possessed by the appellants by virtue of the judgment and decree under challenge.
33. However, the trial Court has held that all these properties belong to the temples and that they were not the private properties of the vendors of the appellants or his predecessors in title. The appellants-defendants cannot be heard to say that their title to the property continues to be in tact, as the documents of title executed in their favour by their vendors have not been set aside. This contention is far fetched in that once it is declared that the vendors of the appellants who have executed the sale deeds in favour of the defendants-appellants did not have the title to the same, question of holding that the RFA 1377/2004 30 appellants still continue to be the owners of the properties does not arise.
34. The appellants-defendants, however, cannot be dispossessed illegally without due process of law. The judgment and decree does not issue any such direction nor could there be any direction by the Court below in the absence of any relief sought by the plaintiffs. To this extent, this point is answered in favour of the appellants-defendants making it clear that they cannot be dispossessed from the properties in possession without adopting due process of law. It is unnecessary to examine the other contentions associated with the possession of the defendants in this case as such a relief for possession is not prayed for by the plaintiffs and it would be open to the defendants to raise such contentions as and when any such proceeding is initiated against them for possession of the properties.
35. The contention urged by Sri.Nitish that the judgment and decree has to be construed as one directing the Deputy Commissioner to take over the possession of the properties from the appellants and others similarly placed cannot be accepted nor the reliance placed by him in this regard on the RFA 1377/2004 31 judgment of the Division Bench of this Court in ILR 2012 KAR 725 is apposite to the facts of the present case. In the facts and circumstances involved in the decision rendered by the Division Bench, the properties of the trust had been alienated and dealt with during the pendency of the suit that too by violating the order of injunction. It is in that background, a direction was issued to the District Court to take possession to ensure that the properties of the trust are taken possession of. In the instant case, no such facts are presented.
36. The appellants before this Court are not the trustees nor were associated with the management of the temples. They are in possession of the property as bonafide purchasers from the persons who posed themselves as owners and disposed of these properties. In such circumstance, the contention urged by the counsel for the respondent No.1 cannot be accepted.
37. In the result and for the foregoing reasons, I pass the following:
ORDER
(i) The judgment and decree passed by the Court below directing framing of a scheme for the management of the temples which exists RFA 1377/2004 32 in the suit schedule property is confirmed.
All other directions with regard to the framing of the scheme, submission of the accounts in respect of the suit properties by the parties is left undisturbed. Insofar as possession of the property held by the appellants is concerned, it is made clear that their possession shall not be disturbed except by adopting due process of law.
(ii) As the temples are not situated in the
portions of the property which are in
possession of the appellants, the District Court is directed to proceed to frame the scheme with regard to the management of the temples and other properties after hearing the parties concerned. The scheme shall be settled in respect of the temples as expeditiously as possible.
(iii) Parties to bear their respective costs Sd/-
JUDGE KK/PRS