Karnataka High Court
Sri. Raghavendra Swamy Mutt vs Sri. Uttaradi Mutt on 3 July, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:25169
RSA No. 100446 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR SECOND APPEAL NO. 100446 OF 2015 (INJ)
BETWEEN:
SRI. RAGHAVENDRA SWAMY MUTT
REP. BY ITS PEETADHIPATHI
H H SHRI SUBUDHENDRA TEERTHA SWAMIJI
SRI RAGHAVENDRASWAMY MUTT
MANTRALAYA, KURNOOL DISTRICT,
ANDHRA PRADESH
REP. BY APTHAKARYADARSHI
SHRI. S N SYAMINDRACHAR
...APPELLANT
(BY SRI. K.SUMAN, SENIOR COUNSEL
SRI. PRABHULING.K. NAVADGI, SENIOR COUNSEL FOR
SRI. PHANIRAJ KASHYAP, SRI. B.M. SHEELVANT
SRI. S.S. BAWAKHAN AND
MISS. SANJEEVINI P. NAVADGI, ADVOCATES)
AND:
SRI. UTTARADI MUTT
R/BY ITS PEETADHIPATHI
Digitally SRI SATYATMA TEERTHASWAMIJI
signed by UTARADI MUTT BASVANGUDI,
Vandana S
NEAR NATIONAL COLLEGE,
Location: BENGALURU - 560 085
HIGH COURT REPERSENTED BY GENERAL POWER OF
OF ATTORNEY HOLDER
KARNATAKA
NEAR RAGHAVENDRA SWAMY MUTT
GANGAVATHI, KOPPAL DISTRICT.
...RESPONDENT
(BY SRI. AMIT KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI. ANIL KEMBHAVI AND
SRI. VINAYAK VAMAN RAO KULKARNI, ADVOCATES)
THIS RSA FILED U/S 100 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED: 22.04.2015 PASSED IN R.A.NO. 123/2014 ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL
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NC: 2024:KHC:25169
RSA No. 100446 of 2015
MAGISTRATE, DHARWAD, PARTLY ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED: 18.06.2011 AND
THE DECREE PASSED IN O.S.NO. 74/2010 ON THE FILE OF THE
ADDITIONAL CIVIL JDUGE, GANGAVATHI DISMISSING THESUIT FILED
FOR PERMANENT INJUNCTION.
THIS APPEAL IS BEING HEARD AND RESERVED ON 30.05.2024
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The regular second appeal by the defendant in O.S.74/2010 is directed against the impugned judgment and decree dated 22.04.2016 passed in R.A.123/2014 by the First Appellate Court, whereby the said appeal filed by the respondent - plaintiff challenging the judgment and decree dated 18.06.2011 passed in O.S.No.74/2010 by the Trial Court dismissing the suit was allowed by the first appellate court, which set aside the said judgment and decree passed by the trial court.
2. The said suit in O.S.No.74/2010 was filed by the respondent - plaintiff against the appellant - defendant for permanent injunction and other reliefs in relation to the suit schedule immovable property. The said suit having been contested by the appellant - defendant was dismissed by the trial court and -3- NC: 2024:KHC:25169 RSA No. 100446 of 2015 challenged by the respondent - plaintiff in the aforesaid R.A.No.123/2014 before the first appellate court which allowed the appeal filed by the respondent - plaintiff and decreed the suit in its favour against the appellant - defendant. Aggrieved by the impugned judgment and decree passed by the first appellate court, the appellant - defendant is before this Court by way of the present Regular Second Appeal.
3. In the first instance, the present appeal was allowed by this Court vide judgment and decree dated 14.11.2017, whereby this Court set aside the judgment and decree of both the first appellate court as well as the trial court and remitted the matter back to the trial court for reconsideration afresh in accordance with law by allowing the applications filed by the appellant - defendant under Order 41 Rule 27 CPC for permission to adduce additional evidence before the first appellate court.
4. Aggrieved by the said judgment and decree passed by this Court in the present appeal, the respondent - plaintiff approached the Apex Court in Civil Appeal No.9333/2018. By judgment dated 26.09.2018, the Apex Court set aside the aforesaid judgment of this Court and restored the present appeal to the file of -4- NC: 2024:KHC:25169 RSA No. 100446 of 2015 this Court. The Apex Court directed this Court to frame points on which additional evidence is to be taken and directed the first appellate court to take the additional evidence on record and then return the same to this Court together with findings and reasons by submitting a report to this Court, after which this Court would consider the present appeal in accordance with law.
5. In pursuance of the aforesaid judgment of the Apex Court, this Court passed an order dated 23.01.2019 framing four points for consideration by the first appellate court and directed it to record evidence and submit findings to this Court.
6. The said order dated 23.01.2019 passed by this Court was challenged before the Apex Court by the appellant herein in Civil Appeal No.2027/2019. By order dated 25.02.2019, the Apex Court disposed of the said appeal by striking out point Nos. (ii) and
(iii) framed by this Court in its aforesaid order dated 23.01.2019 and confined / restricted only point Nos.(i) and (iv) to be referred to the first appellate court for recording evidence and submitting its findings.
7. In pursuance of the said order of the Apex Court, the first appellate court recorded the evidence of both the appellant -
-5-NC: 2024:KHC:25169 RSA No. 100446 of 2015 defendant and respondent - plaintiff and after hearing the parties, recorded its findings on the points formulated by the Apex Court and this Court and returned the entire records to this Court.
8. Upon receipt of the said records, the present appeal was taken up for disposal by this Court, during the course of which, interim orders dated 15.11.2022 and 21.03.2023 recording the terms of compromise / settlement between the parties were passed by this Court which were once again challenged by the respondent
- plaintiff in SLP(Civil) Nos.11546-547/2023. By order dated 22.01.2024, the Apex Court set aside the aforesaid interim orders passed by this Court and directed the main appeal to be taken up for disposal on merits. Accordingly, the present Second Appeal has been taken up for disposal.
9. For the purpose of convenience, the parties are referred to by their respective ranks before the trial court i.e., respondent/plaintiff-Mutt and appellant/defendant - Mutt.
10 . Briefly stated, the averments made by the plaintiff-Mutt in the plaint are as under:-
Plaintiff contended that the suit schedule property bearing old Sy.No.239 and New Sy.No.192 measuring 100 acres of Anegundi -6- NC: 2024:KHC:25169 RSA No. 100446 of 2015 village, Gangavathi Taluka, bounded on all four sides by Thungabhadra river and popularly known as 'Nava Brindavana Gaddi' was exclusively owned and possessed by the plaintiff -
Mutt. In the schedule to the plaint, it was stated that the extent of land visible was 27 acres 30 guntas as per survey and confirmed by this Court. It was contended that the plaintiff - Mutt was the prime pontifical feet of "Sri.Madhvacharya", who was the founder of the Madhava set of Brahmins. The plaintiff-Mutt was revived by Sri.Madhvacharya, who was considered as the 'Peetadhipathi' of the plaintiff-Mutt and he was succeeded by Sri.Padmanabha Teertha Swamiji and Sri. Narahari Teertha Swamiji. The defendant
- Mutt came to be established by one of the disciples of the plaintiff- Mutt by Sri.Vibhudendra Teertha Swamiji and the defendant - Mutt was presided by Sri.Vijayendra Teertha and Sri.Raghavendra Swamiji, whose Brindavana is at Mantralaya in the present Adoni District of Andhra Pradesh.
10.1 Plaintiff-Mutt contended that the 'Nava Brindavana Gaddi' measuring about 100 acres was owned by one Sri.Peshkar Krishna Rao, who sold the land in favour of Sri.Sathya Dhyana Teertharu, the then "Peetadhipathi" of plaintiff - Mutt vide registered sale deed dated 23.03.1916 and pursuant to the same, -7- NC: 2024:KHC:25169 RSA No. 100446 of 2015 the khata was transferred into the name of the plaintiff-Mutt, who was in exclusive and sole possession and enjoyment of the property. Since the defendant - Mutt and the 'Peetadhipathi' of Sosale Vyasaraja Mutt got their names entered to the extent of 1/3rd share each along with the plaintiff -Mutt in the record of rights, the plaintiff - Mutt was constrained to file a suit in O.S.No.65/1 of 1959-60 before the Munisiff, Gangavathi. After contest, the said suit for declaration of title and deletion of the names of the defendant -
Mutt and 'Sosale Vyasaraja Mutt' was decreed in favour of the plaintiff-Mutt vide judgment and decree dated 30.03.1968. The said judgment and decree was challenged by the Sosale Vyasaraja Mutt in R.A.No.45/1968 which was dismissed by the first appellate court.
It was therefore contended that the judgment and decree passed by the trial court in O.S.65/1 of 1959-60 became final and conclusive and established the plaintiff's title and possession over the suit schedule property.
10.2 The plaintiff-Mutt contended that it has been performing the daily poojas, Ashtodakas, Annual Aaradhanas and all other religious rituals of its Peetadhipathis / Swamijis' without any interference from the defendant-Mutt, who is not entitled to perform the said poojas. It was contended that out of the 9 Brindavanas, 4 -8- NC: 2024:KHC:25169 RSA No. 100446 of 2015 Brindavanas belong exclusively to the plaintiff - Mutt, who has been performing Aaradhanas etc., for generations and defendant-
Mutt at no point in time performed the said Aaradhanas etc., It was contended that in the plaint schedule property, there are 9 Brindavanas of eminent Swamijis' of all the three Mutts.
10.3 Plaintiff-Mutt contended that subsequently after the new litigations being opened up by the 'Peetadhipathi of Sosale Vyasaraja Mutt', the defendant - Mutt also attempted to interfere with the plaintiff's possession and enjoyment of the suit schedule property and there were proceedings before the Special Deputy Commissioner, Raichur, in the year 1984, which culminated in an order dated 22.11.1989 in W.P.No.17108/1987 before this Court in favour of the plaintiff-Mutt. Even subsequently, the defendant -
Mutt attempted to interfere with the performance of Aaradhanas etc., by the plaintiff - Mutt in the suit schedule property and there were proceedings in W.P.No.7415/1991 regarding police protection and the said writ petition was disposed of on 26.03.1991 quashing the order of the Executive Magistrate. The plaintiff-Mutt therefore contended that the defendant-Mutt is interfering with its possession and enjoyment of the suit schedule property and interfering with the -9- NC: 2024:KHC:25169 RSA No. 100446 of 2015 performance of annual Aradhanas etc., every year by the plaintiff -
Mutt and instituted the suit seeking the following reliefs:-
(i) Issue a permanent injunction restraining the defendant, its agents, devotees, servants and representatives etc., from entering upon the suit schedule land "Nava Brundavana Gadde" or interfering with the plaintiff's possession and enjoyment thereof in any way and / or interfering or disturbing with the performance of annual Aradhana of Sri.H.H.Padmanabha Teertharu, Sri.H.H.Kavindra Teertharu and Sri.H.H.Vageesha Teertharu in every year by the plaintiff math.
(ii) To pass such other order as this Hon'ble Court deems fit in the circumstances of the case and or consistent or incidental and is necessary for the protection of the plaint schedule property.
(iii) To award costs of the suit.
10.4 In the first instance, the defendant-Mutt filed its written statement inter-alia contending that the suit for bare / permanent injunction simpliciter without seeking declaration was not maintainable and liable to be dismissed, especially when the claim was in relation to the Brindavanas of 9 Madhva saints located in 'Nava Brindavana Gaddi'. It was contended that though the suit is styled as one for permanent injunction over immovable property, the primary object was to prevent other Mutts from having access to holy Brindavanas and to perform poojas and Aaradhanas. It was
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 also contended that there was absolutely no nexus over right to property and right to worship and that right to property did not include in its scope the right to worship. It was contended that the right of worship of Aaradhanas by the defendant-Mutt from several years has been continuously protected by various courts and this Court and consequently, the suit was liable to be dismissed.
10.5 The defendant-Mutt contended that the Brindavanas are the religious Institutions and the religious places of worship, being the public property, the plaintiff-Mutt cannot claim the same as his own and private property and since there was no reference in the 'Nava Brindavanas' in the sale deed, the suit for bare injunction without seeking declaration was not maintainable. It was also contended that the suit was barred by limitation and was liable to be dismissed.
10.6 The aforesaid written statement was filed by the defendant-Mutt on 30.08.1994 and subsequently, on 15.12.2002, the defendant-Mutt filed further written statement interalia disputing the denying the alleged title and possession of the plaintiff-Mutt and also disputed and denied the alleged sale deed executed in favour of the plaintiff-Mutt. It was contended that the alleged change of the suit schedule property from Sy.No.239 to Sy.No.192 was also
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 incorrect and the said sale deed did not convey any right in favour of the plaintiff-Mutt. It was contended that the description of the suit schedule property in the plaint and the sale deed are different, so also the location as per the village map, in which, the island portion is shown as Sy.No.167.
10.7 The defendant-Mutt contended that the plaintiff-Mutt was not entitled to claim exclusive right of worship and performance of Aaradhanas, poojas etc., in the Brindavanas located over the suit schedule property. It was also contended that the earlier judgment in O.S.No.65/1 of 1959-60 cannot be interpreted or construed to mean that the plaintiff-Mutt was declared as the owner of 'Nava Brindavana' located in the suit lands or that the right of plaintiff-Mutt to exclusively perform the poojas, Aaradhanas was upheld in the said suit or the appeal. It was also contended that the 'Nava Briundavana' was situated outside the extent of 14 acres 30 guntas, which is the subject matter of the aforesaid earlier suit and no reliance upon the said judgment and decree can be placed upon by the plaintiff-Mutt. It was reiterated that the Brindavanas being tombs / samadhis' are deemed Endowments and are not private property and the claim of the plaintiff-Mutt to restrain the defendant-
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Mutt from performing poojas, Aaradhanas in the Brindavanas was liable to be rejected.
10.8 The defendant-Mutt disputed and denied the various allegations and claim made in the plaint by adverting to them in detail and also pointed out that in the earlier proceedings between the 'Sosale Vyasaraja Mutt' and the plaintiff-Mutt, which culminated in an order passed in W.P.No.18017/1987 dated 28.11.1988. The defendant-Mutt was not a party to the said proceedings and the order made therein was not binding upon the defendant-Mutt. It was contended that the right of performance of Aaradhanas, poojas etc., in the 'Nava Brindavana' was not decided by this Court, which left a question open and as such, no reliance can be placed upon the said judgment by the plaintiff-Mutt. The defendant-Mutt also put forth various other contentions disputing and denying the claim of the plaintiff-Mutt and sought for dismissal of the suit.
10.9 Based on the above said pleadings, the trial court framed the following issues:-
(i) Whether the plaintiff proves that he (plaintiff) is in possession and enjoyment of the suit schedule property as on the date of the suit and performance of annual Aaradhana as pleaded in the plaint?
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NC: 2024:KHC:25169 RSA No. 100446 of 2015
(ii) Whether the plaintiff proves alleged interference by the defendant?
(iii) What order or decree?
10.10 During trial, the plaintiff-Mutt examined its GPA holder as PW-1, two witness as PWs' 2 and 3 and its 'Peetadhipathi' as PW-4 and documentary evidence at Exs.P1 to P81 were marked on its behalf. The defendant-Mutt examined its GPA holder as DW-1 and 4 witnesses as DWs' 2 to 5 and Exs.D1 to D345 were marked.
10.11 After hearing the parties, the trial court answered both issues 1 and 2 against the plaintiff-Mutt and proceeded to dismiss the suit vide judgment and decree dated 18.06.2011.
10.12 Aggrieved by the said judgment and decree, the plaintiff-Mutt approached the first appellate court in R.A.No.123/2014. During the pendency of the appeal, the plaintiff-
Mutt filed an application under Order 41 Rule 27 CPC for permission to produce additional evidence. In addition to the same, the plaintiff-Mutt also filed an application under Order 14 Rule 5 CPC seeking framing of the following additional issue:-
"Whether the judgment and decree in O.S.No.65/1 of 1959-60 and R.A.45/1968 operate as resjudicata against the defendant?"
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 10.13 The defendant-Mutt filed its objections to both the applications. In addition thereto, the defendant-Mutt filed three applications, all under Order 41 Rule 27 CPC for permission to produce additional evidence. The defendant-Mutt also filed an application under Order 14 Rule 5 CPC for framing the following additional issue:-
"Whether the Nava Brindavana are located / situated in the area claimed by the plaintiff comprised in Nava Bridnavana Gaddi bearing Sy.No.192 of Anegundi village measuring 14 acres 7 guntas or whether the said Navabrindavanas are located outside the said area measuring 14 acres 7 guntas?"
10.14 The plaintiff-Mutt filed its objections to all the aforesaid applications filed by the defendant-Mutt.
10.15 The defendant-Mutt also filed an application under Section 151 CPC for a direction to the concerned survey authorities to conduct survey of Sy.No.192 of Anegundi village. The plaintiff-
Mutt opposed this application also. Subsequently, the defendant-
Mutt filed one more application under Section 340 Cr.P.C. seeking initiation of criminal proceedings against the 'Peetadhipathi' and Power of Attorney of the plaintiff - Mutt. This application was also opposed by the plaintiff-Mutt.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 10.16 Based on the pleadings of the parties, the first appellate court framed the following issues for consideration :-
1. Whether the plaintiff proved its possession of the suit property as on the date of the suit?
2. Whether the plaintiff proves interference by the defendant with its possession of the suit property?
3. Whether framing of an additional issue regarding res judicata as prayed for by the appellant is necessary?
4. Whether framing of an additional issue regarding existence of Navabrindavanas within or outside the area of 14 acres 7 guntas land in Sy.No.192 as prayed by the respondent is necessary?
5. Whether the appellant proves in spite of exercise of due diligence, the document sought to be produced in this appeal as additional evidence could not be produced before the trial court?
6. Whether the respondent proves that in spite of exercise of due diligence, the documents sought to be produced in this appeal as additional evidence could not be produced before the trial court?
7. Whether the respondent has made out a case for fresh survey of Sy.No.192 of Anegundi village?
8. Whether the respondent proves that it is expedient in the interest of justice that an enquiry should be made against the pontiff and the POA of the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 appellant - Mutt under Section 340 of the Code of Criminal Procedure?
9. Whether the judgment and decree of the trial court require interference in this appeal?
10. What decree or order?
10.17 After hearing the parties, the first appellate court answered the aforesaid points 1, 2 and 9 in favour of the plaintiff (appellant) - Mutt and thereby, partly allowed the appeal and set aside the judgment and decree passed by the trial court and decreed the suit of the plaintiff-Mutt in part.
10.18 The first appellate court rejected the applications for framing of additional issue as well as production of additional evidence filed by both the plaintiff-Mutt and defendant-Mutt and accordingly, answered issues 3 to 7 against both the parties. So also, the application filed by the defendant-Mutt under Section 340 Cr.P.C. was rejected and issue No.8 was answered against the defendant-Mutt.
10.19 In this context, it is relevant to extract the operative portion of the impugned judgment and decree passed in R.A.No.123/2014, which reads as under:-
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 ORDER The application filed by the appellant under Order 41 Rule 27 r/w Section 151 of the Code of Civil Procedure is dismissed.
The application filed by the appellant under Order 14 Rule 5 r/w Section 151 of the Code of Civil Procedure is dismissed.
The application filed by the respondent under Order 14 Rule 5 r/w Section 151 of the Code of Civil Procedure is dismissed.
The applications filed by the respondent under Order 41 Rule 27 r/w Section 151 of the Code of Civil Procedure is dismissed.
The application filed by the respondent under Section 151 of the Code of Civil Procedure seeking survey of Sy.No.192 of Anegundi village is dismissed.
The application filed by the respondent under Section 340 of the Code of Criminal Procedure is dismissed.
The appeal filed by the appellant under Order 41 Rule 1 of the Code of Civil Procedure is allowed in part. The judgment and decree dated 18.06.2011 passed by the Court of the Additional Civil Judge, Gangavathi, in O.S.No.74/2010 are set aside.
The suit of the plaintiff is decreed in part. Subject to the right, if any, of the defendant - Mutt to perform Aaradhanas and Poojas of the Brindavanas in the suit
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 property, the defendant is restrained by way of the perpetual injunction from interfering with the plaintiff's Mutt's possession and enjoyment of the suit property.It is hereby clarified that the above said raider shall not be construed as declaring the right of the defendant - Mutt to perform Aaradhanas and poojas.
10.20 Aggrieved by the impugned judgment and decree passed by the first appellate court, the defendant-Mutt is before this Court by way of the present Second Appeal.
10.21 Before proceeding further, it is necessary to state that the respondent - plaintiff has not challenged the impugned judgment and decree passed by the first appellate court.
10.22 When the appeal was admitted by this Court on 13.04.2016, the following substantial questions of law were framed:-
(i) Whether the lower appellate court is justified in setting aside the judgment and decree passed by the trial court without taking into consideration the relevant material?
(ii) Whether the lower appellate court, having held that the defendant - Mutt is entitled to perform Aaradhanas, Pooja of Brindavanas in the suit schedule property was justified in restraining the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 defendant by way of perpetual injunction from interfering with the suit schedule property?
(iii) Whether the lower appellate court committed an error of law in having framed point No.(i) for consideration without taking into consideration the fact that the issue relating to performance of Aaradhanas in the Navabrindavana is interlinked with the issue of lawful possession of the plaintiff over the suit schedule property?
(iv) Whether the first appellate court erred in partly allowing the suit and in granting the relief which is mutually irreconcilable and conflicting and thus it renders the judgment null and void since it does not resolve the crux of the issue mainly the religious right to perform Aaradhanas?
(v) Any other substantial question of law that may be cropped up during the course of appeal?
10.23 The present appeal was taken up by a co-ordinate Bench of this Court which disposed of the appeal vide final judgment dated 14.11.2017 by setting aside the judgments and decrees of the trial court as well as the first appellate court and remitted the matter back to the trial court for reconsideration afresh in accordance with law. While doing so, this Court set aside the judgment and decree of the first appellate court rejecting the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 application for additional evidence filed by both parties and proceeded to allow the said applications filed under Order 41 Rule 27 CPC and set aside the judgment and decrees of the both the courts and directed the trial court to re-decide the suit in accordance with law.
10.24 Aggrieved by the aforesaid judgment of remand passed by this Court, the plaintiff-Mutt approached the Apex Court in Civil Appeal No.9333/2018. The Apex Court upheld the judgment of this Court insofar as it related to allowing the application filed under Order 41 Rule 27 CPC. However, the Apex Court took the view that in the light of the provision contained in Order 41 Rules 23, 23-A, 25, 26, 28 and 29 CPC, instead of remitting the matter back to the trial court for reconsideration afresh in its entirety, it was just and expedient to invoke Order 41 Rule 28 CPC and directed this Court to frame points for consideration and proceed further by calling for a finding from the first appellate court after taking the additional evidence of both parties. In other words, the Apex Court set aside the judgment and order of this Court in part to the extent it relegated the parties to the trial court and instead, directed the points to be framed by this Court and the same be referred to the first appellate court for the purpose of recording additional evidence
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 and submitting its finding on the same. Under these circumstances, the Apex Court disposed of the said appeal filed by the plaintiff-
Mutt.
10.25 In pursuance to the aforesaid judgment of the Apex Court, this Court framed the following points for consideration after hearing both sides vide order dated 23.01.2019 as under;
(i) Whether the appellant - defendant i.e., Sri Raghavendra Swamy Mutt proves the existence, authenticity / genuineness and contents of the documents that are permitted to be produced by allowing its three applications in I.A.Nos.5, 11 and 12?
(ii) Whether the appellant - defendant i.e., Sri Raghavendra Swamy Mutt proves that any of the documents that are permitted to be produced by allowing the aforesaid three documents is / are spurious, concocted or fraudulently obtained?
(iii) Whether any of the documents that are already part of record are genuine or spurious or obtained by fraud?
(iv) What is the effect of the findings to be recorded by the first appellate court concerning the aforesaid points
(i), (ii) and (iii) on the issues framed in the main proceedings by both the courts below i.e., the trial court and the first appellate court?
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 10.26 The aforesaid order dated 23.01.2019 passed by this Court was challenged by the defendant-Mutt before the Apex Court in Civil Appeal No.2027/2019.
10.27 After hearing the parties, the Apex Court came to the conclusion that point No.(i) framed by this Court supra, was sufficient to cover point Nos. (ii) and (iii) and consequently, deleted the said point Nos. (ii) and (iii) and directed reframing of the points for consideration as under:-
(i) Whether the appellant - defendant i.e., Sri Raghavendra Swami Mutt proves the existence, authenticity / genuineness and contents of the documents that are permitted to be produced by allowing its three applications in I.A.Nos.5, 11 and 12?
(ii) What is the effect of the findings to be recorded by the first appellate court concerning the aforesaid point (i) on the issues framed in the main proceeding by both the courts below i.e., the trial court and the first appellate court?
10.28 In pursuance of the same, the first appellate court took up the matter for consideration, during the course of which, the plaintiff-Mutt did not adduce any oral evidence but got marked 6 documents at Ex.A-1 to Ex.A-6. On behalf of the defendant-Mutt,
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 oral evidence by way of RW-1 to RW-8 was adduced and documentary evidence at Exs.R1 to R54 were marked by the defendant-Mutt. After hearing the parties, the first appellate court recorded findings on both the aforesaid two points in favour of the defendant - Sri.Raghavendra Swamy Mutt and against the plaintiff
- Uttaradhi Mutt and passed an order in this regard dated 23.04.2021. The said order dated 23.04.2021, in which the first appellate court recorded findings on points Nos. (i) and (ii) formulated above have been sent to this Court along with the additional evidence of the parties.
11. Heard Sri.K.Suman, learned Senior counsel and Sri.Prabhuling K.Navadgi learned Senior counsel for the appellant -
Sri.Raghavendra Swamy Mutt as well as Sri. Ameet Kumar Deshpande, learned Senior counsel for the respondent - plaintiff (Uttaradhi Mutt) and perused the material on record.
12. Learned Senior counsel for the appellant submitted that the suit for permanent injunction simpliciter filed by the respondent was not maintainable in law or facts and the same was liable to be dismissed. It was submitted that though the respondent claims to have acquired 100 Acres of land under the sale deed of the year
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 1960, the entire land was forfeited to the Nizam Government and out of the entire extent of 100 acres, only an extent of 14 acres 7 guntas was restored / re-granted in favour of the respondent. It was submitted that the Nava Brindavanas are situated outside the aforesaid extent of 14 acres 7 guntas and the said land was being used for ingress and egress to the Nava Brindavanas and the contention of the respondent that it continued to be the owner of the entire extent of 100 acres, out of which, the visible extent of 27 acres 30 guntas was liable to be rejected. It was also pointed out that the suit schedule property involved in O.S.No.65/1959-60 was restricted only to 14 acres 7 guntas and did not include the entire extent of 27 acres 30 guntas claimed by the respondent and the said judgment and decree could not be relied upon by the respondent in support of its claim in the present suit.
12.1 It was also submitted that the proceedings between Sosale Vyasaraja Mutt in O.S.No.130/1978 and the survey proceedings which culminated in W.P.No.18017/1987 dated 28.11.1988 were not binding upon the appellant who was not a party to the same. It was further submitted that the specific contention of the appellant that the right to perform poojas, Aaradhanas etc., at Nava Brindavanas were different from the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 respondent's claim over the property and the said issue was not decided either in the previous proceedings in O.S.No.65/1 of 1959- 60 or in the litigation between Vyasaraja Mutt and the respondent herein.
12.2 Learned Senior counsel for the appellant submitted that even according to the plaint averments, the cause of action for the present suit arose when the appellant allegedly interfered with the performance of poojas, Aaradhanas etc., by the respondent and the relief of permanent injunction would have the effect of preventing the appellant from performing poojas, Aaradhanas etc., in the Nava Brindavanas which has been granted by the first appellate court in the impugned judgment and decree and not challenged by the respondent before this Court either by filing a separate appeal or cross objections in the present appeal.
12.3 Learned Senior counsel for the appellant invited my attention to the judgment and decree of the trial court and submitted that the entire material on record including the pleadings and evidence of the parties had been correctly and properly considered and appreciated by the trial court which dismissed the suit of the respondent by its well-reasoned and correct judgment and decree. However, the first appellate court had proceeded to
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 allow three applications and recorded findings against the appellant by omitting and ignoring relevant material and by placing reliance upon inadmissible and irrelevant material which would warrant interference by this Court in the present appeal.
12.4 It was further submitted that though the first appellate court has passed impugned judgment and decree, which is assailed in the present appeal pursuant to the directions issued by the Apex Court in Civil Appeal No.9333/2018 and Civil Appeal No.2027/2019 referred to supra, the first appellate court has recorded additional evidence and submitted a report / finding rejecting the claim of the respondent and upholding the claim of the appellant.
12.5 It was also submitted by the learned Senior counsel for the appellant that during the pendency of the appeal before the first appellate court, the appellant who was not a party to the survey proceedings between the respondent and Sosale Vyasaraja Mutt, filed W.P.No.111125/2014 before this Court seeking quashing of the survey proceedings and survey reports dated 18.04.1974 and 07.09.1974 passed by the Assistant Superintendent of Land Records and Superintendent of Land Records respectively. In this context, learned Senior counsel invited my attention to an order
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 dated 08.04.2015 passed in the said W.P.No.111125/2014 and pointed out that this Court issued several directions to the State Government and its authorities to file an Affidavit giving clarifications and formulated 8 points in this regard.
12.6 It was submitted that in pursuance of the same, the Principal Secretary of the State, Revenue Department, filed an Affidavit dated 27.06.2015 giving clarifications and a perusal of the same was sufficient to come to the conclusion that the claim of the appellant deserves to be upheld and the claim of the respondent deserves to be rejected.
12.7 Learned Senior counsel would also refer to the various contentions urged by the learned Senior counsel for the respondent and the judgments relied upon by him and submit that the same were not applicable to the facts of the instant case. It was therefore submitted that the impugned judgment and decree passed by the first appellate court deserves to be set aside and the suit of the respondent - plaintiff was liable to be dismissed. In support of his contentions, learned Senior counsel for the appellant has relied upon the following judgments:-
(i) Smt.Sukhrani vs. Harishankar - AIR 1979 SC 1436;
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NC: 2024:KHC:25169 RSA No. 100446 of 2015
(ii) Narasinga Dan Goswamy vs. Prolhadman Tewari -
1919 ILR 46 CAL 465;
(iii) Ishan Chunder Roy & others vs. Monmohini Dassi
- 1879 ILR 4 CAL 683;
(iv) Basant Singh vs. Janaki Singh - AIR 1967 SC 331;
(v) Avad Kishore vs. Ram Gopal - (1979) 4 SCC 790;
(vi) State of Bihar vs. Radha Kishan Singh - AIR 1983 SC 684;
13. Per contra, learned Senior counsel for the respondent would refute the various contentions urged on behalf of the appellant and would submit at the outset that the questions of law framed by this Court are not substantial questions of law warranting interference by this Court in the present appeal. It was submitted that the appellant - defendant did not claim any proprietary or possessory right over the suit schedule property and the title and possession of the respondent qua the appellant had already been upheld and attained finality in O.S.No.65/1 of 1959-60 and the claim of the appellant in the present suit was barred by Explanation IV to Section 11 CPC as well as by the principles of res judicata. It was submitted that the limited scope of the present suit was the possession of the respondent - plaintiff over the suit schedule property and since the same had already been upheld in the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 previous round of litigation referred to supra, the material on record established the respondent's possession and enjoyment over the suit schedule property which had been admitted by the appellant who was not entitled to interfere with the respondent's possession of the suit property. He also submitted that apart from the fact that the appellant had itself admitted that the Nava Brindavanas were situated within 14 acres 7 guntas, the pleadings and evidence of the parties also establish the said fact.
13.1 It was also submitted that though the appellant was not a party to the earlier litigations between the respondent and Sosale Vyasaraja Mutt, the appellant was completely aware about the same and it was only after the rejection of the claim of the Sosale Vyasaraja Mutt that the defendant-Mutt again interfered with the plaintiff's possession, as a result of which, the present suit was filed. It was therefore submitted that the questions of law already framed do not arise for consideration in the present appeal and that the same have to be answered against the appellant and the present appeal deserves to be dismissed.
13.2 In support of his submissions, learned Senior counsel placed reliance upon the following judgments: -
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NC: 2024:KHC:25169 RSA No. 100446 of 2015
(i) Secretary of the State vs. Bommadevara Venkatanarasimha Naidu - AIR 1920 MAD 295;
(ii) M.Naghushana vs. State of Karnataka - AIR 2011 SC 1113;
(iii) Smt.Rajalakshmi vs. Vanamali - AIR 1953 SC 33;
(iv) Raman Pillai vs. Kumaran Parameswaran - 2002 KERALA 133;
(v) Mrinmoy Maity vs. Chhanda Koley - 2024 SCC Online SC 551;
(vi) Tirumala Tirupathi Devasthanam vs. K.M.Krishnaiah - (1998) 3 SCC 331;
(vii) Chote Khan vs. Mohammed Obedulla Khan - AIR 1953 NAGPUR 361;
(viii) Commissioner vs.Vittal Rao - AIR 2005 SC 454;
(ix) N.S.Ramanathan vs. Krishnamurthy Iyer - AIR 2003 MAD 78;
(x) Ramji Dayawala & Sons Pvt. Ltd., vs. Invest Import
- AIR 1981 SC 2085;
(xi) Santosh Hazare vs. Purushotham Tiwari - 2001 (3) SCC 179;
(xii) Guran Datta vs. Ram Datta - The Calcutta Weekly Notes (TC) - 817;
(xiii) State Bank of India vs. S.N.Goel - (2008) 8 SCC 1992;
(xiv) Ramegowda vs. Varadappa Naidu - (2004) 1 SCC 769;
(xv) Amalortadam vs. R.C.Diocese of Madurai - (2006) 3 SCC 224;
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NC: 2024:KHC:25169 RSA No. 100446 of 2015
14. I have given my anxious consideration to the rival submissions and perused the material on record.
15. Before adverting to the substantial questions of law framed by this Court and the rival contentions, it is necessary to note that while dismissing the suit in O.S.No.74/2010, the trial court recorded a finding that it is not only the plaintiff - Mutt but also the defendant - Mutt and their followers who have been performing poojas, Aaradhanas etc., to the Nava Brindavanas since time immemorial. It also held that the defendant - Mutt had acquired customary right / easement over the Nava Brindavanas, since the same was being worshipped by it from time immemorial. The trial court also came to the conclusion that the right over the suit schedule property was not the same as a right to perform worship, poojas, Aaradhanas in the Nava Brindavanas. It also came to the conclusion that the sale deed dated 23.03.2016 relied upon by the plaintiff-Mutt did not disclose the existence of the Brindavanas in the suit schedule property. It was further held that the earlier proceedings and orders passed in the same between Sosale Vyasaraja Mutt and plaintiff-Mutt can neither be relied upon by the plaintiff - Mutt nor was the same binding upon the defendant - Mutt
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 in relation to the Nava Brindavanas. The trial court also held that the judgment and decree passed in O.S.No.65/1 of 1959-60 was restricted to 14 acres 7 guntas and the said judgment and decree cannot be relied upon by the plaintiff-Mutt to assert its right over the extent of 27 acres 30 guntas which was the suit schedule property in the present suit. Accordingly, the trial court dismissed the suit holding that since the defendant - Mutt was entitled to perform poojas, Aaradhanas, worship etc., over the Nava Brindavanas, there cannot be a decree for permanent injunction which would restrain the defendant - Mutt from continuing to perform the same in the Nava Brindavanas situated in the suit schedule property.
While arriving at the said conclusion, the trial court held as under:-
" 22. Issue No.1 & 2: These two issues are interconnected with each other hence for sake of convenience taken up together for discussion. The plaintiff math filed this suit for permanent injunction to the restrain the defendant math its agents devotees etc., from entering upon the suit schedule land Nava Vrindavarra Gadde or interfering with performance of annual Aradhana of Sri. H.H. Padmanabha Theertha Swamiji, and H.H. Kaveendra Theertha Swamiji, and Sri. H.H. Vageesha Theertha Swamiji, this year and on the annual Aradhana in every year by the plaintiff math.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015
23. According to the plaintiff math it is the absolute owner in possession of the suit schedule property. The suit schedule property is known as Nava Vrindavana Gaddi It is described as land bearing Sy. No. 192 measuring 27 acres 30 guntas of Anegundi village.
24. The claim of plaintiff is mainly based on his title over the suit schedule property, according to the plaintiff math has perfected its title by way of sale deed dated 23/3/1916. It is further case of the plaintiff that in O.S. No.65/1 of 1959-60 the plaintiff has got the relief of declaration of title over the suit schedule property. On the basis of the said perfection of title the plaintiff is seeking the present consequential relief of permanent injunction against the defendant math. On the contrary the defendant has disputed identity of the suit schedule property. It is contended that the present suit schedule property has been described as a land in Sy. No. 192 measuring 27 acres 30 guntas, but suit schedule property of 0.5.65/1 of 1959-60, was described as land in Sy. No. 192 measuring 14 acres 7 guntas only of Anegundi village. Thus the very extent of the property differs one and another. Hence, the defendant has contended that the plaintiff bas been trying to make use of the decree of in O.S. No.65/1/1959-60. Obtaining to the extent of land 14 acres 7 guntas to the present suit schedule properties. Which has been described as measuring 27 acres 30 guntas. Therefore, the burden lies on the plaintiff to prove that the present suit schedule property. And the suit schedule property of O.S. No.65/1 of 1959-60 are one and the same. If the plaintiff wants to get the fruits of that decree. The plaintiff has produced the certified copy of the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 judgement passed in O.S.No.65/1 1959/60 at Ex.P.10, on perusal of the said judgment at Ex.P.10 it reveals the extent of suit schedule property shown in that suit is different from the extent of the present suit schedule property.
25. That, admittedly, the suit is for injunction in simplicitor. The plaintiff has not sought for the relief of declaration of any kind of his right over the suit schedule property. Since, the suit for bare injunction the plaintiff is to prove his exclusive possession over the suit schedule property. Herein, the plaintiff bas sought for the relief of injunction to restrain the defendant and its followers from interferce for obstructing to perform Poojas and Aradhana etc., in Nava Vrintlhavanas. The defendant has primarily disputed over existence of Nava Vrindhavanas in or within the boundaries of suit schedule property. According to the defendant the said Vrundhavans are situated at the out side of the suit schedule property, but adiacent to it. The defendant has also pleaded that the math has been performing Aaradhanas of the said Vrundhavanas since time immemorial without any obstruction. As such, according to the defendant, the plaintiff math has no right to i restrain them from performing or worshiping the Nava Vrundavanas. The defendant has contended that the plaintiff math is trying to restrain the defendant math from entering into the Nava Vrundavanas area by obtaining the decree of permanent injunction and thus indirectly prevent the defendant math from perform of Aaradhanas of Nava Vrundavanas,
26. The plaintiff has produced the various documents at Ex.P.1 tο 81 the Ex.P.10 is the certified copy of the judgment passed in 0.5.65/1 of 1959-60 the Ex.D-345 is the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 order passed in R.A.No.45/1968. Which is produced by defendant, and the said original suit and R.A. are confirmed in R.S.A., by Hon'ble High Court of Karnataka. The plaintiff pleaded that the math has purchased suit schedule property from one Peshkar Krishnarao on 23/3/1916 and since the plaintiff math has been in possession and enjoyment of the suit schedule property as absolute owner. It is further pleaded that the plaintiff has obtained the decree declaring the title of the plaintiff math over the suit schedule property in O.S. No.65/1 1959-60. In this regard the plaintiff has produced the Ex.P.10, the judgment passed in the said suit. On perusal of the certified copy of Ex.P.10 and certified copy of the R.A. 45/1968 at Ex.D.345 it reveals that the said decree was confirmed by the 1st Appellate Court and then by the Hon'ble High Court of Karnataka in second appeal. Hence, the plaintiff has contended that the plaintiff math has declared as the owner of the suit schedule property. The defendant math has no right, interest or possession over the suit schedule property. The case of the plaintiff is that Nava Vrundavanas are situated in the suit schedule property ang them (1) Sri. H.H. Padmanabha Theertha Swamiji, (2) H.H. Kaveendra Theertha Swamiji, (3) Sri. H.H.Vageesha Theertha Swamiji, and Sri. H.H. Raghuvaryaru theerthru Vrundavans are belonged exclusively to the plaintiff math, and the math has performing only Aradhanas of the said Vrundavanas to the exclusive of the defendant and others. The defendant math and other Maths have no right or interest in the said Vrundavanas and they have never performed any Aradhanas in the said Vrindhavanas. At such according to the plaintiff, the defendant math publish their
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 almanac (Panchanga) for the Hindu New Year" Angrevas"
during the year 1992-93 and circulated the stune all over the State of Karnataka and Hyderabad inviting the disciples to attend any Aradhanas, which they are coming to perforın at Nava Vrindhavanas Gadde in respect of the above said 4 Vrindhavanas. Thus, the defendant math has tried to interfere with the plaintiffs possession of the suit schedule property. And to disturb the annual Aradhana made by the plaintiff math.
27. The defendant math has admitted the decree passed in O.S. No. 65/1 of 1959-60 and further orders passed in this regard. But, the defendant has specifically pleaded in that said decree cannot be construed that the math was declared as the owner of the Vrindhavanas located in the suit schedule land of that suit. Because, the plaintiff had not pleaded in that the suit, the location of the Nava Vrindhavanas are situated in the suit schedule proper Thus, according to the defendant, the declaration of title in O.S. No.65/1 1959-60 is only to the land bearing Sy.No. 192 of Anegundi village measuring 14 acres 7 guntas, but not for title over the Vrundhavanas. As such, the burden lies on the plaintiff to prove that the Nava Vrindhavanas are situated in the suit schedule land. in this regard as defendant has specifically pleaded in para No.3 of the W.S. that suit schedule land was taken over by the then Anegundi Sumsathana and an application was made by the plaintiff math, in consideration of the same, the Sumsathana gave back the 14 acres 7 guntas in the land suit survey number. Further, Anegundi Sumsthana laid condition on the plaintiff math that it should not obstruct other Maths from having
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 access to the Vrundhavans and preventing the worship etc., the defendant math relied in this regard on the Ex.D.343 and 344 which are in Urdu Language Ex.343(a) and 344(a) are translated copies in English and Kannada language. On perusal of the Ex.D.343 (a) it reveals on 6/6/1955 fasali i.e., in the year 1946 (The calendar of Christian, which we follow is nearly 591 years. Added to the calendar of fasali, so 1355 fasal +591 years-1946 A.D.) one V. Srinivasachary the G.P.A. holder of Sri. Sathyabiznatheertha Sripadaswamji moved an application for grant of land in Sy.No.239 (new
192). And measuring 14 acres 7 guntas. It is clearly written in he application that the said land had been forfeited by the Susthana due to non payment of tax and it was request for the re-grant of the same. if the grant had not been made the right of the Math would be affected. in the said application it is also written that land sought for re-grant was adjacent to the holy place. According to the defendant math the said holy place its nothing but the place of 4 Vrundhavanas and thus the granted Iand of the 14 acres 7 guntas in-favour of the plaintiff math on their application as per Ex.D.343 is adjacent to the Vrundhavanus and Vrundhavanas are not situated within the boundaries of the said granted land. The Ex.D.344 shows that Anegundi Samsathana granted land in Sy.No. 192 viz., as Vrindhavana Gaddi in favour of Sri. Sathyabiznatheertha Swamiji, who was the applicant as per Ex: 343. in the said grant it has clearly written that grantee (plaintiff math) shall not obstruct the pilgrims and others to perform Aradhanas etc., otherwise the grant would be cancelled thus it is apparent on the record that a specific contention was laid on the grantee and prevented him from
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 interfering or obstructing with the Aaradhanas used to conducted by the pilgrims and others. Herein it has not been disputed that the said applicant Sri. Sathyabizen Swamiji Theerthru was then representative of the plaintiff math. As such, the said documents at Ex.D.343 and 344 consolidate the case of the defendant that the 14 acres 7 guntas of land is the granted land and in Vrundhavanas as situated adjacent to the said land, but not within the boundaries of the said land. The defendant in this regard, has futher relied on the oral evidence made by the plaintiff witnessed. The P.W. I in his cross-examination has deposed that the suit land. is situated at Eastern side Vrundhavanas and thereafter a river runs. The material portion of the P.W.J, evidence runs as under "ವೃಂ ಾವನದ ಪ ವ ೆ ಾ ಾ ಜ ೕ ನ ಭೂ ಇರುತ ೆ, ಆ ಾದ ನಂತರ £À EgÀÄvÀÛzÉ. " As such evidence of the P.W.I some what shows that Vrundhavanas is not situated within the suit schedule property. On the contrary the plaintiff has failed to produce better piece of evidence so as to prove that Vrindhavanas are situated in the suit schedule land and they are part of it. It seems Nava Vrindhavana Gadde is a landmark for the purpose identification of the island that does not mean that Nava Vrindhavanas are part of the suit schedule property. The learned counsel for the defendant has much argued that the plaintiff math has been trying to abstract the access of the pilgrims and others Maths. To the four Vrindhavanas to perform Poojas and Aaradhanas by obtaining a decree of injunction. It is further argued that the defendant math has been performing Aradhana of 4 Vrindhavanas. Since, time immemorial and thus got
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 customary right of worship. The plaintiff has specifically pleaded that defendant math has never being performed Aaradhana or Poojas and it has no right to do so. The defendant witness D.W.I to 4 have deposed that the math and its disciples have been performing Aaradhanas since time immemorial. The defendant has produced number of receipts, which are marked as Ex.D.30 to 204. According to the defendant math the said receipts are records to show the expenditure made by the defendant math in performance of Aradhanas. On perusal o the receipts produced at Ex.D.30 to 204. According to the defendants math the said receipts are the records to show the expenditure made by the defendant math in performance of Aradhanas. On perusal of the receipts produced to Ex.D.30 to 204 the contents of the said receipts speak about the expenditure made performance of Aradhanas of 4 Vrindhavanas viz., Sri. H.H. inutesha Theertha Swaangt and H.H. Kaveendra Theertha Swamiji, and Sri. H.H. Vageesha Theertha Swamiji, and Sri. H.H. Raghuvaryaru Thirthru since 1891 (Shalivahanashake 1813) to 1982 (Shalivahana shake 1904). Admittedly, the said receipts have produced by the defendant math from its custody and they are 30 and more years old documents. The learned counsel for the plaintiff during course of his arguments argued that these receipts are concocted. But plain observation of the said documents it seems that they are not recently made are created receipts, they are age old receipts more over all said documents are 30 years old. so they have presumptive value 0/8-98-of Indian Evidence Act. The plaintiff has failed to disprove the validity of the said receipts at Ex.D.32 to 204. The Ex.D.344 the grant letter-
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 also speaks that the grantee shall not obstruct the access of the pilgrims and other Maths in worship of Virndavanas, thus these are documents show that the defendant math has been performing Poojas or Aradhanas at the said Vurndhavanas.
28. Admittedly, both the plaintiff and defendants Maths originally belonged to Madhwa sect of Brahmins. As per pleadings of the plaintiff, the defendant Sri. Raghavendra Swamiji math was established one of the disciples of Sri. Uttaradhimath i.e., plaintiff Sri. Vibhudendra Theertharu. Except such pleadings of the plaintiff the plaintiff has not explained proper genealogy of Madhwa sect, on the other hand the defendant has produced some pages of a biography of Sri. Raghavendra Swamiji written by Koratti Srinivasarao. The said book as marked as Ex.D.14 in page No.256 of the same, succession ship of the math as clearly been explained. As per the said document Sri. Madhwacharya (1238- 1317 A.D.) Succeeded by Sri. H.H. Padınanabha Thirtha Swamiji. then some other pontiffs and later Sri. H.H. Kaveendra Theertha Swamiji, then Sri. H.H. Vageesha Theertha Swamiji, and then Sri. H.H. Ramachandra Theerthru the said Ramachandra Theerthru was succeeded by Sri. Vidyanidhi Thirthru and Sri. Vibhudendra Thirtharu. The said Vidyanidhi Thirthru started Uttardhimath (plaintiff) tradition. Whereas the defendant math followed Sri. Vibhadendra Thutharu that is to say the tradition of Uttaradhimath i.e., the plaintiff and Sri. Raghavendra math i.e., the defendant started only during period of Vidyananda Thirthru and Vibhudendra Thirthru who were contemporaries (1435-1490 A.DJ and until Sri
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Ramachandra Thirthru (1406-1455 A.D.) there was no split in Madwa sect. Thus it is clear from pleadings of the plaintiff and from the details of the Ex.D.14 that Sri. H.H. Padmanabhe Thirtha Swami, then some other pontiffs and later Sr. H. Kaveendra Theertha Swamiji, and Sri. H.H. Vageesha Theertha Swamin. Practiced the Madwa sect prior to the said split only after then the plaintiff and defendant math came into existence. Hence, both the maths and their followers, if worship of the Vrundhavanas of said pontiffs it is quit natural and there are no reasons to disbelieve in the same. Moreover, the plaintiff has not disputed Ex P.14 and admitted to disprove the same. Hence, the contents of Ex.D.14 can be considered to know about the Madhwa tradition and the successors of Sri, Madhwacharya under such circumstances it can be constrained that not only the plaintiff math, but also the defendant math and their followers have been performing Poojas and Aaradhanas to the disputed Vrindhavanas since time immemorial 29 The learned counsel for the defendant has argued that since the defendant math has been worshiping the said Vrindhavanas it is acquired. customary right and thus no one can prevent the defendant from enjoyment of such of its right. The plaintiff has of course, denied the continues performance of Aaradhanas by defendant math, but it is proved that the defendant math has been worshiping-the Vrindhavanas. Section 18 of the Indian Easement Act specks about customary easement as per the section an casement may be acquired by virtue the local customs. A customary easement cannot be in favour of and individual, but it can only be in favour of a class or community, Now the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 question arises in respect of case on hand that whether the right of worship is a customary right or not. In this regard this court made relay on decision reported in AIR 1935 Aalahabad 891 between Meera V/s Ramagopal, Wherein the Hon'ble High Court of Aalahabad has held as under " A right to worship can be acquired on the land of the another by large body of persons as customary right".
30. As such, the worshiping of Vrundhavanas since time immemorial continuously by the defendant math, it acquires the customary casement over the same and confirms it right of worship.
31. The plaintiff has claimed that the defendant math has been interfering with its possession and enjoyment over the suit schedule property. The PW.1 to 4 have also deposed in this regard. The defendant math has specifically denied said allegation of the said math According to the defendant there is no declaration of any kind of right in favour of the plaintiff math regarding the worship or Aradhana pertaining four Vrundavanas. As such the plaintiff cannot seek directly the relief of bare injunction without seeking for declaration so as to confirm it right over the said Vrundavanas. On perusal of the pleadings it is clear that plaintiff math has contended that the math not only has exclusive right over the Vrundavanas. But, except such pleadings the plaintiff is silent in explaining how it acquired the exclusive right over the said Vrundavanas. The plaintiff has mainly relaying on judgement and decree passed in 0.S. No. 65/59-60, wherein the title of land bearing Sy. No. 192, measuring 14 acres 7 guntas of. Anegundi village has been declared in favour of the plaintiff math. But, there is no
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 pleading by the plaintiff math that the disputed 4 Vrudavanas are situated in the said decree of land and further in this suit also there is no pleading by the plaintiff math that the 4 Vrundavanas are situated within the boundaries of suit schedule property, which is called as Nava Vrindavan Gaddi. As such the defendant has pleaded that there is no nexus between the place where these Vrundavanas are situated and the present suit schedule property. The plaintiff, has sought for the relief of permanent injunction against the defendant math, of course, on the basis of perfection of its title in O.S. No. 65/59-60 in respect of the land in Sy. No. 192 measuring 14 acres 7 guntas, but no where it is pleaded that 4 Vrundavanas are existing within the boundaries of the said lands. Thus, it is expected from the plaintiff to plead and prove what kind of exclusive right the plaintiff math is having over the Vrundavanas. The P.W.1 in his cross-examination lave specifically deposed that the Vrundavanas are existing at Navarindavana Gaddi prior to more than 600 years. As such, the plaintiff math might have produced any document in this regard. On the contrary there is no reference of existence of Vrundavans in the suit schedule property or the laud purchased by the plaintiff math from Peshkar Krishna Rao in any documents. The contents of the sale deed dated 23/3/1916 produced at Ex.P.10 do not speak about the existence of the Vrundavanas in the sold land. The contents of the Ex.D.343 an application made for the grant by the plaintiff much. Shows that the proposed grant land of 14 acres 7 guntas was adjacent to the holy place Le.. Vrundavanas. The P.W.1 in his cross-examination, has deposed that the suit-schedule and is at the western side of
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 the Vrindavan, Admittedly, the plaintiff math has obtained the decree of the title over the suit 2 schedule property described in O.S. No. 65/59-60. Further the plaintiff math filed a suit against Sri. Vidyapanidhi theerthru, Sripadagalunivern of Sri. Sosole Vayasaraya Math and another seeking permission in respect of the present suit schedule property in O.S No 130/1978. The certified copy of judgement passed in the said suit is marked as Ex P44 On perusal of the said Judgement, it reveals that the court has decreed the suit granting injunction against the defendant of that suit, but subject to the rights of those defendants in performance of Aradhanas of Vrundavanas: In that judgement it is well discussed and found that the Vayasaraya Sosale math and other devotes have been performing Aradhanas of Vrundavanas. Hence, though the relief of injunction was granted to the plaintiff math, but it was restricted to its enjoyment without counter interference by the plaintiff math in performing of Aradhanas its the defendant Sosale math. The defendant has highlighted the certified copy of the order passed by the Hon'ble High Court of Karnataka in W.P. No. 18017/87 and C/W W.P 2329/82 produced at Ex.P.37 by the plaintiff math. In the said order the Hon'ble High Court of Karnataka dismissed about the order passed by the superintendent of land records. Bellary about the change of extension of land Sy.No.192 from 14 acres 7 guntas into 27 acres 30 guntas after re-survey. The Hon'ble High Court of Karnataka up held the order passed by the superintendent of land records. But, para No. 10 of that order, the High Court of Karnataka discussed and opined that the petitioner Vayasarayamath, Sosale (who was
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 the petitioner of that writ petition) lost right in the land in question ie., land in Sy. No. 192 measuring 27 acres 30 guntas except the religious right. The court has also said that the religious right was not the subject matter of any of the prior proceedings and the findings recorded by any authorities or in that order should not he construed as affecting the religious rights of the math-in Nava Vrindhavan. As such any courts, here before declared the exclusive right of the plaintiff math over the Vrudhavana and said that only the plaintiff math bas right to perform Aradhana excluding of their Maths. Under such circumstances it is expected from the plaintiff math to get declaration of its exclusive right of worship and prove the same so as to restrain the defendant math or anybody from-interfering or accessing the suit schedule property or Nava Vrindavana Gaddi. But, in the present suit, admittedly, the plaintiff math has not sought of any declaratory relief, but directly sought for the relief of injunction on the basis of prior confirmation of its title in O.S. No.65/59-60 in respect of land in Sy.No. 192 measuring 14 acres 7- guntas of Anegundi village. The learned counsel for the defendant has argued that plaintiff is trying to indirectly restrain the defendant and other Maths from performing Aradhana by way of proposed relief of injunction, of course there is every chance misusing of the order of injunction, if granted in favour of plaintiff math, that the defendant math and its followers may be restrained from performance of Andhana in the Vrundhavanas. The plaintiff under such circumstances might have sought for and subsequently proved his exclusive right of worship exclusion of defendant math and others and therefore the plaintiff math certainly,
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 would be succeeded in obtaining consequential relief of permanent injunction against the defendant math. Thus, the plaintiff math has failed to prove its exclusive right over the suit schedule property and the Vrandhavans, and on the other hand the defendant math has proved its right of worship of Vrundavanas. Once the right of worship of Vrundavanas of the defendant math has been proved, the defendant math cannot be restrained from its access to the Vrundavanas by way of permanent injunction. Thus the plaintiff math is not entitled for the relief of bare injunction. in view of the said discussion it can be held that plaintiff failed to prove the possession enjoyment of the suit property as on the date of suit and performance of annual Aradhana. And the alleged interference by the defendant. Hence, I answer the issue No.1 & 2 in the Negative.
32. Issue No.3: In view of my answer to the above said issues and in the said manner I proceed to pass the following:
ORDER Suit of the plaintiff is dismissed with cost. Draw decree accordingly.
16. As stated supra, the first appellate court set aside the judgment and decree of the trial court and allowed the appeal in part and decreed the suit in part in favour of the plaintiff-Mutt; the applications for permission to adduce additional evidence by the defendant - Mutt which were rejected by the first appellate court in
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 the impugned judgment and decree were allowed by this Court in its judgment dated 14.11.2017 referred to supra and confirmed by the Apex Court in Civil Appeal No.9333/2018 dated 26.09.2018 and the points formulated by the Apex Court were also answered against the plaintiff - Mutt and in favour of the defendant - Mutt vide order dated 23.04.2021 passed by the first appellate court.
15. A perusal of the impugned judgment and decree passed by the first appellate court will indicate that it came to the conclusion that the title and possession of the plaintiff - Mutt over the suit schedule property has been upheld in the earlier suit in O.S.No.65/1 of 1959-60 and it was not necessary for the plaintiff -
Mutt to establish its title once again. The first appellate court also came to the conclusion that in W.P.No.18017/1987, this Court upheld the claim of the plaintiff-Mutt and though the defendant -
Mutt was not a party to the said proceedings and order, since the subject matter of the said proceedings and the present suit schedule property were one and the same, the title and possession of the plaintiff - Mutt over the suit schedule property was established and the suit for permanent injunction without seeking declaration of title was maintainable.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015
16. The contention of defendant - Mutt that the entire land bearing Sy.No.192 was acquired and forfeited by the Government for payment of land revenue and what was restored in favour of the plaintiff - Mutt was only 14 acres 7 guntas was negatived by the first appellate court on the ground that the said questions / issues could not be gone into by the first appellate court or re-agitated by the defendant - Mutt in the light of the order of the Karnataka Appellate Tribunal in Appeal No.356 of 1977 filed by the Sosale Vyasaraja Mutt which was confirmed by this Court in W.P.No.18017/1987.
17. Insofar as the performance of poojas, Aaradhanas etc., were concerned, the first appellate court held that having regard to the scope of the suit which was restricted to permanent injunction in relation to the suit schedule property which was in possession and enjoyment of the plaintiff - Mutt, the said question / issue regarding performance of poojas, Aaradhanas etc., in the Nava Brindavanas was beyond the scope of the suit / appeal and the same need not be gone into by the first appellate court. Accordingly, the first appellate court proceeded to pass the impugned judgment and
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 decree partly allowing the appeal and decreeing the suit of the plaintiff-Mutt in part against the defendant - Mutt.
18. As stated earlier, no finding was recorded by the first appellate court regarding the issue / question of performance of Aaradhanas, poojas etc., over the Nava Brindavanas and the impugned judgment and decree has not been challenged by the plaintiff - Mutt.
19. Pursuant to the aforesaid orders passed by the Apex Court, the first appellate court recorded the evidence and rendered its findings on the points formulated by the Apex Court and referred by this Court by answering the said points in favour of the defendant - Mutt and rejecting the claim of the plaintiff - Mutt by holding as under:-
" 1 7 . P o i n t N o . I : The suit has been filed for the relief of perpetual injunction in simpliciter in respect of the suit property against the defendant by the plaintiff. The suit property has been described as all the land measuring 100 acres bearing old R.Sy. No.239 and new R.Sy. No.192 of Anegundi village, Gangavati taluk, Rayachur district, popularly known as Nava Vrindavanagaddi, the extent of the land at present visible over the matter is 27 acres 30 guntas as per the survey and confirmed by t he Hon 'b le High Cou rt of Ka rna tak a at
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Be nga lu ru . Th e description of the suit property gives sense that the plaintiff seeks relief for injunction in respect of the suit land which is tangible and measuring 27 acres 30 guntas of R.Sy. No.192 of Anegundi village. The extent of the land, according to the plaintiff, is as per the survey. It is the specific claim of the plaintiff mutt that it is the absolute owner in possession of the suit land since its purchase in the year 2016. The main allegation is that the defendant has been interfering with the plaintiff's possession of the suit property. On the contrary, the defendant mutt has squarely denied the very title of the plaintiff mutt over the entire suit property.
18. The trial court dismissed the suit mainly discussing potential effect of injunction order, if granted, on the religious rights of the defendant mutt to perform Aradhanas of the Nava Vrindavanas. The trial court doubted the possession of the plaintiff mutt over the entire suit land, which is shown as measuring 27 acres 30 guntas and answered the issue No.1 as negative. On that count, the suit came to be dismissed. While allowing the appeal in part, this court had considered that on the basis of the sale deed of 2016 the plaintiff is the owner in possession of the entire island which is originally measures 100 acres and as per the corrected land records and in view of the decree passed in O.S. No.65/1 of 1959-60, the plaintiff is in possession of the present suit property. This court had reserved the rights of the defendant mutt in performing Aradhanas in the suit land. Thus, at the first instance, the suit came to be decreed in part by of this court. In the regular second appeal, the Hon'ble High Court opined
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 that the earlier judgment of this court (FAC) as self contradictory and vague, and set aside the entire judgment before remanding the suit to the trial court for fresh trial by allowing the defendant to produce additional evidence. As discussed earlier, on intervention of the Hon'ble Apex Court and as per its instructions, two points came to be formulated by the Hon'ble High Court and the appeal was remanded to this Court for limited purpose to record additional evidence of the defendant and to give findings on the formulated two points, and to remit the file to the Hon'ble High Court for consideration in the pending RSA No.100446/2015. Accordingly, the defendant/respondent led the additional evidence of R.W.1 to R.W.8 and produced documents at Ex.R.1 to R.54 before this Court.
19. Every trial is a voyage of discovery in which truth is the quest. With sole intention of discovering the truth in the matter, the Hon'ble High Court, with certain observations, has remanded this appeal for recording of the additional evidence and to give findings on the documents produced at Ex.R.1 to R.54. In this regard, the point No.1 imposes burden on the defendant to prove the existence, genuineness/authenticity of the said documents.
20. The defendant got examined RW-1 to RW-8 and produced Ex.R-1 to R-54. Admittedly, the R-series documents were obtained through the Right to Information Act (In short RTI Act) for the defendant mutt. While producing the said documents before the Court, the plaintiff had objected to get them mark on the ground that those documents are not admissible in evidence. In that regard, this Court had rejected such stand of the plaintiff and allowed the defendant to
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 produce. In order to prove the procedure adopted to obtain the said documents, existence and genuineness of the said documents, the defendant mutt has got examined the applicants to get the documents as RW-1 to RW-3, who obtained the documents under the RTI Act and also examined the information officers of concerned departments as RW-4 to RW-6 and RW-8, who furnished the documents under the RTI Act. In this regard, while allowing the defendant to produce these documents as additional evidence, this Court relied on a decision reported in AIR 2016 Hyderabad 112 (Revision Petition No. 303112015) (Datti Kameswari Vs. Singam Rao Sarath Chandra and another), wherein the Hon'ble High Court of Andhra Pradesh has held that the documents obtained under the RTI Act are admissible in evidence as secondary evidence. RW-2 has deposed that he obtained the documents produced at Ex.R-36 and R-52 under the RTI Act. As per the evidence of RW3, the documents at Ex.R-34 and R-47 were obtained by him under the RTI Act, while RW-1 deposed about collection of other documents under the RTI Act. Similarly, RW-4 has identified the documents at Ex. R-1 to R-5, R-8 to R-25, R-27 t0 R-30, R-45, R48 to R-51 as furnished by him under the RTI Act. RW-6 has deposed that he furnished the documents at Ex.R-6, R-7, R-26 and R-31 under the RTI Act. RW-6 has stated that she issued the documents at Ex. R-36 and R-52 under the RTI Act, while RW-8 has identified the documents at Ex.R-34 and R-47 as given by him under the RTI Act. Thus, the defendant mutt has got examined all the issuing authorities of the documents under the RTI Act and also examined the applicants who obtained those documents under the said Act.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 2I. The plaintiff, though intensely opposed the interim applications to produce these documents at Ex.R.I to R.54, surprisingly admitted the existence and genuineness/authenticity of them during the arguments. The learned counsel for the plaintiffs, in the written arguments, has unambiguously admitted the additional documents. The relevant portion of the written arguments runs as under:
As stated earlier, during the hearing of the R.A. No.123 of 2014 before the Hon'ble court, the respondent had filed three applications vide I.A. No.5, 11 and 12 U/o. 41 Rule 27 of CPC seeking to introduce the documents. The Hon'ble court while deciding the appeal had rejected the said applications. However, upon allowing the said applications by the Appellate Courts, the documents covered under the said three applications are part of the record and they were marked in Ex.R-series. Since the respondent has filed the said documents, the burden is heavily on the respondent to prove the existence, authenticity/genuineness and contents of the documents. Through the said documents, the extent of the land visible was changed from Ac. 14.7 gts to Ac. 27.30 gts. Hence, the existence, authenticity/genuineness and contents of the documents are not disputed by the appellant. The respondent also cannot dispute the existence and authenticity/genuineness of the said documents as the respondent itself claims to have obtained them from the authorities and filed before the Hon'ble Court. Hence, the existence of the documents is admitted by both the parties. With regard to the authenticity/genuineness of the documents, it is submitted that during the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 course of marking the documents in Ex.R-series by the Hon'ble court the objection was made on behalf of the appellant on the ground that the said documents are not admissible in evidence as they are obtained under the provisions of the RTI Act. The respondent insisted for marking the said document on the ground that they are the authentic and genuine documents and got them marked while the Hon'ble Court marked the said documents by recording the objections on behalf of the appellant. Hence, the respondent is estopped from challenging the authenticity and genuineness of the said documents. Now the contents of the documents are also proved in favour of the appellant as nothing substantial is tried to be proved by adversely affecting the rights of the appellants. More so, all the documents which are filed through the I.A. No.5 have undergone the scrutiny of the competent forums commencing from the Tahasildar, Commissioner, EAT, Hon'ble High Court, ADLR, JDLR, Hon'ble High Court, so also by the courts in O.S. No.130/1978 which ultimately culminated before the Hon'ble Supreme Court in favour of the appellant herein. Hence, the point No.I needs to be answered in favour of appellant by declaring that the documents produced are in existence, they are authentic and genuine and the contents therein are proved as stated therein which are produced in favour of the appellant.
22. Such monosemous admission on the part of the plaintiff during the written arguments suddenly relaxed the burden of the defendant to prove the formulated point No.1.
Nothing left over on the defendant to prove the existence, genuineness/ authenticity of the documents,
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 which have been produced at the R-series, which runs from Ex.R.1 to R.54. Moreover, the defendant has independently proved the documents at Ex.R.1 to R.54 by leading the evidence of R.W.1 to R.W.8 as discussed supra. In the circumstances, only burden remains with the defendant to prove the impact of these documents on the issues framed by the courts in relating to lis pending under the present proceedings. Resultantly, the point No.1 is answered in Affirmative.
23. Point No. 2 : The plaintiff mutt has admitted R- series documents on an interpretation that the said documents would prove lawful change of extent of the suit land from 14 acres 07 guntas to 27 acres 30 guntas. Per contra, it is the specific case of the defendant that the very process of correction of land records by the survey department is illegal and it is a fraud committed by the plaintiff mutt colluding with the survey department. According to the defendant mutt, mere increase of extent of land in survey records does not confer the ownership rights of the plaintiff mutt over the entire suit land of 27 acres 30 guntas. There is no dispute that prior to corrections of the land records as per the order of the SLR, Bellary as per Ex.R-50, the land in Rsy. No. 192 was shown as measuring only to the extent of 14 acres 07 guntas. After the order of the SLR, Bellary the extent of land in the land records was modified as 27 acres 30 guntas. In other words, additional area of 13 acres 23 guntas came to be added to the land in Rsy. No. 192 of Anegundi village. On the basis of the modified land records coupled with the sale deed of 2016 (Ex.P-3), the plaintiff mutt claims absolute title and possession over the entire land
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 measuring 27 acres 30 guntas. On the contrary, the defendant mutt has squarely denied the absolute title and possession of the plaintiff mutt over the entire suit property, more particularly right of plaintiff mutt over the additional land of 13 acres 23 guntas and mode of acquisition of title over the said excess land. Hence, the defendant mutt has put forth additional evidence and produced the documents at Ex.R-1 to R-54.
24. Ex.R.1 is a reply letter from the Director of Survey Settlement and Land Records (DSSLR) dated 08.05.1973. Contents of the said letter would clarify that the said letter was written to one K.V. Acharya, GPA holder of the plaintiff mutt as a reply to his petition dated 30.04.1973 requesting to make correction of the extent of the suit land in the record of rights of the R.Sy. No.192 of Anegundi. The relevant paragraph of the letter reads as under:
Correction of wrong entry in record of rights in respect of o ld S . No . 2 3 9 (ne w No .1 92 ) o f Ane g un d i v illa g e. According to the judgment of Hon'ble High Court, Mysore vests with the revenue authorities. Correction in survey records will be got done, if found necessary, after the record of rights is attested by revenue authorities.
25. Thus, Ex.R.1 clarifies that the plaintiff mutt through the GPA applied for correction of the extent of the suit R.Sy. No.192 in the revenue records and in this regard, they approached the survey department bypassing the revenue department. Therefore, it was the basic opinion of the concerned survey department that the correction and settlement can only be done after the correction of the revenue records by the revenue authorities.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Accordingly, the plaintiff mutt was intimated through the letter at Ex.R-1 to approach the revenue authorities
26. Ex.R.2 is second letter of the GPA holder of the plaintiff mutt written on 25.05.1973 to the Assistant Superintendent of Land Records, Raichur (ASLR) for correction of the land records, but without getting corrected the revenue records. In para No.3 of the letter it is clearly mentioned that they (plaintiff mutt) have applied to the Tahasildar and Deputy Commissioner etc., for correction of record of rights, but so far it is not done.
27. E x. R.4 is th e lett er fr om AS L R, Ra ich ur dat e d 03.06.1973 addressing to the GPA holder of the plaintiff mutt intimating him that the ASLR visits and measures the land in R.Sy. No.192 of Anegundi on 16.06.1973. Thus Ex.R.4 reflects that on pursuing letter of the GPA holder of the plaintiff mutt, the ASLR, Raichur visited the land in R.Sy. No.192 for inspection and measurement work.
28. Ex.R.5 is a detailed report prepared by the ASLR, Raichur on his inspection and measurement of the land in R.Sy. No.192 and the said report is in the form of proposal for consideration and approval addressing to the Superintendent of Land Records (SLR), Ballary as per Ex.R-7. The said report was prepared on 25.07.1973 and at Ex.R.5 it is in hand writing of the ASLR. Copy of the same has been produced in typed form at Ex.R.6. A perusal of Ex.R.5 would reveal that the ASLR, Raichur inspected and measured the land in R.Sy. No.192 on 25.07.1973. In his report, it is mentioned that the ASLR visited the spot on 25.07.1973 with the petitioner i.e., GPA holder of the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 plaintiff mutt. It is further mentioned in the report that on enquiry, it has come to know that the petitioner having a possession on the same land as existing on the spot since the date of purchase. There is no clarity in the report that to whom the ASLR enquired about the possession of the disputed land. It is simply mentioned that on enquiry the ASLR came to know that the plaintiff mutt is in possession of the entire land since the date of its purchase. Therefore, the report in this regard, seems to be vague. The report discloses that the ASLR unilaterally expressed his personal opinions in the report about ownership and possession of the plaintiff mutt. Relevant paragraphs of the report read as under:
In addition to the land of R.Sy. No.192 consists of 14 acres 07 guntas, there exists some more land under the actual possession of the petitioner which has been shown in red colour in the sketch No. II; and this land has been left unsurveyed during the survey work although it is under occupation and ownership of the petitioner.
Such observation of the ASLR, Raichur has not been supported by any documents. The ASLR had no occasion to leap to the conclusion that the unsurveyed left out land is under occupation and ownership of the plaintiff mutt. The ASLR, Raichur, at no point of time, can be considered as the competent person to give findings that the plaintiff mutt is the owner in possession of adjacent unserveyed land of R.Sy. No.192. Unfortunately, the plaintiff mutt has much relied on the order of correction of land records (Ex.R-
50), which took place on the basis of the report of ASLR produced at Ex.R.5. Of course, the ASLR completely relied on the sale deed of the plaintiff mutt to hold that entire unsurveyed land in R.Sy. No.192 also belongs to the plaintiff mutt, but it seems that the ASLR ignored the aftermath events underwent after the execution of the sale deed.
29. Herein, it is the firm stand of the defendant mutt that after the acquisition of title by way of sale deed of 1916
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 produced at Ex.P.3, on failure of remittance of land revenue by the plaintiff mutt, the entire land in R.Sy. No.192 was forfeited by the Nizam Samsthan in the year 1941. In this regard, the defendant mutt has relied on the letter written by the GPA holder of Vyasaraj mutt to the ASLR, Raichur on 29.08.1973, which has been produced at Ex.R.9. As per the said letter, the plaintiff mutt applied for re-grant of forfeited land in R.Sy. No.192 as per settlement records in the year 1945 and as per the application, the plaintiff mutt sought for re-grant of the land in R.Sy. No.192 only to the extent of 14 acre 07 guntas, which is the land adjacent to the area in which 09 Vrindavanas exist. It is further mentioned in Ex.R.9 that the then Administrator (Naazam) of Anegundi Samsthan and the Rajesab of Anegundi who was the government had ordered the re-grant of R.Sy. No.192 for cultivation purpose only. It is further mentioned that the balance area outside R.Sy. No.192 has been noted in their endorsements as being Parampoke i.e., uncultivated waste. Thus, as per the contents of Ex.R.9, the Vyasaraj mutt had had brought to the notice of the ASLR, Raichur about forfeiture of land in R.Sy. No.192 way back in the year 1941 and about re-grant of the land in the year 1945 only to the extent of 14 acre 07 guntas in favour of the plaintiff mutt.
30. It is relevant to refer the documents produced before the trial court at Ex.D.343 and D.344 by the defendant before the trial court to show the requisition from the plaintiff mutt for re-grant of the land and re-grant of the land on the said requisition. The document at Ex.D.343, of course, is in Urdu language but the translation copy of the English language has also been produced at Ex.D.343(a). The
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 said translated copy would speak that the then pontiff of plaintiff mutt requested for re-grant of the land in R.Sy. No.192 to the extent of 14 acre 07 guntas. In reply, the concerned Samsthan, administrator or granting authorities, re-granted the land, which was requested for grant. The contents of the document at Ex.D.344/Ex.D-344(a) reveal that the re-grant was made as per the request of the plaintiff mutt. Since Ex.D.343 shows that request was made only to the extent of land measuring 14 acre 07 guntas, the re-grant made as per Ex.D.344 would be considered only to the extent of 14 acre 07 guntas in R.Sy. No.192. The report at Ex.R-5 shows that the ASLR did not consider the re-grant process held in respect of the land measuring 14 acres 07 guntas, but only relied on the sale deed of 2016.
31. Ex.R.12 shows that copy of the letter at Ex.R.9 by the GPA of Vyasaraj mutt was also sent to the Deputy Commissioner of Land Records (DCLR), Gulbarga. As per Ex.R.12, on 30.08.1973, the DCLR Gulbarga wrote a letter to the ASLR, Raichur asking him to submit report on the letter at Ex.R.9.
32. Ex.R.13 is the second letter of DCLR, Gulbarga dated 06.12.1973 addressed to the ASLR, Raichur on the subject of correction of survey No.192 of village Anegundi referring the previous letters of the ASLR. In the very beginning of the letter at Ex.R.13 it is mentioned that as per the memo of that office dated 17.11.1973, it was observed that no correction in the survey records can be ordered by the Assistant Superintendent of Land Records (ASLR) without an order of revenue authorities U/sec. 140(2) of the Mysore
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Land Revenue Act, 1964. The relevant portion of the said letter further reads as under:
The Superintendent of Land Records, Ballary in his letter No. TCH.MSC.5173-74 dated 15.10.1973 has also observed that correction of area of Sy. No.192 of Anegundi, Tq: Gangavati vests with the revenue authorities and instructed to refer to the revenue authorities. Besides this he was also in know of the fact that there is a dispute for any alteration in the existing records of survey and record of rights as well. Such being the case, the Assistant Superintendent of Land Records, Raichur in his letter number referred to above has moved to the Tahasildar, Gangavati to give effect to the area in record of rights making the area of 14 acre 07 guntas to 23 acres 03 guntas of Sy. No.192 under the reference which is incorrect. The records are to be corrected after obtaining the approval of the revenue authorities as laid down in the Mysore Land Revenue Act of 1964 and the rules therein and there-upon after expiry of the stipulated period under the provisions of the above act, the survey records can be corrected in conformity with the order so passed by KJP duly approved by the Superintendent of Land Records and the record of rights is to be then corrected accordingly. In the above circumstances, the Assistant Superintendent of Land Records, Raichur is again instructed to refrain from making any correction in the survey records till the final orders are received by revenue authorities in his office to effect changes in this regard.
33. A plain reading of the letter at Ex.R.13 would go to show that the letter is in the instructive form written by the superior authority like DCLR, Gulbarga to the ASLR, Raichur restraining him from making correction in the survey records till receipt of final order of correction by the revenue authorities. As per Ex.R.13, in view of Section 140(2) of the Mysore Land Revenue Act, 1964 when dispute is regarding extent of land, the power vests with the revenue authorities to resolve the dispute and make correction in
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 the revenue records at the first instance and then only the land records can be corrected accordingly. In this regard, it is relevant to refer Section 140(2) of the Karnataka Land Revenue Act (which is in the similar form of the old Act i.e., Mysore Land Revenue Act). The said provision of law reads as under:
Section 140 (2) - if any dispute arises concerning the boundary of a holding which has not been surveyed or if at any time after the completion of a survey, a dispute arises concerning the boundary of a survey number, a sub- division of a survey number, or a holding, the Deputy Commissioner shall decide the dispute having due regard to the land records, if they afford satisfactory evidence of the boundary previously fi*ed and if not, after such inquiry as he considers necessary.
34. In this context, it is pertinent to rely on a decision reported in *LR 1986 KAR 2404 (Doddakempegowda Vs. Chikkeeregowda), the Hon'ble High Court of Karnataka has held as under;
Sub-section (2) of Section 140 empowers the Tahsildar to decide the dispute concerning the boundary of a holding which has not been surveyed or when a dispute arises at any time after the completion of a survey. What is noteworthy in this provision is that the dispute relates to the boundary and not to any encroachment.
35. As per Section 2(12) of the Act "holding" means a portion of land held by the holder. With regard to the case on hand, holder is the plaintiff mutt and holding is the land which is in possession of the holder. As per Section 140(2) of the Act, if any dispute arises concerning the boundary of the holding which has not been survey, the Deputy Commissioner (revenue authority) shall decide the dispute. Herein, it is undisputed fact that as per Ex.R.5,
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 previously the survey was conducted only in respect of 14 acre 07 guntas of R.Sy. No.192 and as per the revenue records the land measuring 14 acre 07 guntas was the only holding land, which was under the possession of the plaintiff mutt (holder) and adjacent land remained as unsurveyed land (which had not been surveyed). As per Ex.R.9 dated 29.08.1973 dispute was agitated on the part of Vyasaraj mutt through its GPA who objected for the survey settlement in respect of the R.Sy. No.192. As such, certainly dispute was raised prior to the inspection and measurement of R.Sy. No.192 by the ASLR, Raichur. Therefore, in view of the decision relied supra relating to Section 140(2) of the Act, the DCLR, Gulbarga through his letter at Ex.R.13, rightly restrained the ASLR, Raichur from making any correction in the survey records till the final order of the revenue authorities. The said provision of law is much clear that the power vests with the revenue authorities to make any corrections in this regard, but not with the survey authorities.
36. The subsequent documents which have been produced on the part of the defendant further disclose that the GPA holder of the plaintiff mutt pursued to get survey the land in R.Sy. No.192 through the survey department. Ex.R.14 is the copy of the letter drafted by the Joint Director of Land Records (JDLR), Gulbarga to the ASLR, Raichur on the representation of K.V. Acharya, GPA of the plaintiff mutt. Through the said letter the JDLR, Gulbarga requested the ASLR, Raichur to find out what extent of the land available on the spot pertaining to survey No.192 of Anegundi and submit the report. Thus, the document shows that the plaintiff mutt approached the JDLR, Gulbarga to get measure the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 suit land for correction of revenue records. Ex.R.15 is another letter dtd: 26.02.1974 from the JDLR, Gulbarga to the ASLR, Raichur in the form of reminder to comply the letter at Ex.R.14.
37. The document at Ex.R.16 is reply letter from the ASLR, Raichur dated 01.03.1974 to the JDLR, Gulbarga on his letter dated 24.01.1974 (Ex.R.14). As per the said reply letter at Ex.R.16 the ASLR explained to the JDLR that no land is available on the spot pertaining to R.Sy. No.192 of Anegundi village. The dispute is not regarding the area of R.Sy. No.192, but regarding the area adjoining to R.Sy. No.192 measuring 08 acre 36 guntas, which is an unserveyed land and which is in possession of the owner of R.Sy. No.192. The ASLR, through Ex.R.16, further submitted that this department (survey department) has now nothing to do in this matter. Again to correct survey records and issue KJP can be taken up only after the orders of the assignment are passed by the revenue department. In the circumstances, the petitioner may be directed to approach the revenue authorities in the matter and the correspondence was reported as closed.
38. Ex.R.16 is clear enough to show that the ASLR, Raichur was concurrent with the opinion of DSSLR, who rejected the requisition of plaintiff mutt as per Ex.R.1, in holding that correction of survey records vests with the revenue authorities. As such, the ASLR, at the first instance, refrained to conduct survey/measurement to correct the survey records and thereby replied to the JDLR, Gulbarga.
39. The JDLR was not satisfied with the reply letter of ASLR at Ex.R.16 and therefore, he wrote another letter as
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 per Ex.R.17 to the ASLR on 06.03.1974 advising him to go through Ex.R.14 letter once again and submit the report accordingly. Thus, Ex.R.17 would reveal that the JDLR did not agree with the explanation given by ASLR that correction of land records vests with the revenue authorities and therefore, the JDLR pursued the matter and directed the ASLR to comply.
40. Ex.R.18 is the letter/notice of ASLR to Sri. K.V. Acharya, GPA of the plaintiff mutt intimating him that he (ASLR) visits the site for survey on 26.03.1974. It seems that in view of compulsion made by the JDLR through his repeated letters as per Ex.R.14 and R.17, the ASLR decided to visit the spot for survey and therefore issued notice to the GPA of plaintiff mutt as per Ex.R.18.
41. Ex.R.20 is subsequent notice of the ASLR given to the same GPA of plaintiff mutt intimating the postponed date of his visit to the suit land for survey work. Meanwhile the JDLR, G u lb a rg a a g a in w r o t e a l e t t e r t o t h e A S L R, R a i c h u r o n 15.04.1974 as per Ex.R.21 summoning him to expedite the work since the matter is pending for want of detailed report and submit the report by 25.04.1974 without fail. Ex.R.22 is another notice issued to the GPA*s of the plaintiff mutt as well as to the Vyasaraj mutt intimating them that the measurement work would be conducted on 26- 27/4/1974 and they were called to be present at the spot along with requisite documents.
42. Ex.R.25 is the letter of ASLR, Raichur written in the month of May, 1974 to the JDLR, Gulbarga with reference to the letter of JDLR as per Ex.R.14. The ASLR reported the JDLR, Gulbarga that as per his letter the ASLR measured the land in dispute in R.Sy. No.192 in the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 presence of both the parties (agents of plaintiff mutt and of Vyasaraj mutt), survey sketch was prepared and enclosed to the report, which is self explained. Ex.R.25 the report of ASLR is annexed with two sketches depicting the land in R.Sy. No.192. A perusal of both the sketches annexed to Ex.R.25 would reveal that the flow of river Tungabhadra is shown from south to north west, which is opposed to the actual and admitted flow of the said river from south west to north east. In both the sketches the flow of the river is clearly shown towards north west, but not towards north east. No explanation can be found either in the sketches or in the report at Ex.R.25 in this regard.
43. The defendant has produced a letter addressed to the JDLR, Gulbarga from the office of the Tahasildar, Gangavathi dated 14.12.1974 at Ex.R.27. As per the gist of Ex.R.27, the Tahasildar, Gangavathi invited attention of the JDLR, Gulbarga that instruction to refrain from making any corrections in the survey records till the final orders are received from the revenue authorities was given to ASLR, but the ASLR, Raichur under his office letter dated 03.12.1974 sent a sketch map, Durasti Akarband and Saithwar for onward transmitting the same to the village accountant for giving effect to in the village records and further stated that these records have been prepared as per order passed by the SLR, Ballary. Therefore, the Tahasildar sought for ne ce ss a ry in st ru ct ion s fro m t he J DL R that whe the r th e corrections now again proposed by ASLR in the village records which is stated to be based on the order of the SLR, Ballary. The JDLR, in reply, wrote a letter to the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Tahasildar, Gangavathi on 08.01.1975 as per Ex.R.28 stating that the SLR, Ballary is the authority competent to order corrections in survey records and as such the corrections ordered by him may be given effect to. Aggrieved party (if any) may go in appeal to the competent authority if so advised. In his simple but vague reply letter, the JDLR, Gulbarga proposed to make corrections in the revenue records, in the absence of any order by the revenue authorities.
44. The plaintiff has produced Ex.A.1 to A.3 during cross-examination of R.W.1. Ex.A.1 is shown as an endorsement of the office of the Assistant Commissioner, Koppal dated 10.04.1981 and as per the said endorsement there is no government land available at the Anegundi village adjoining to R.Sy. No.192. Admittedly, the said document is shown as a true copy issued from the office of the Assistant Commissioner, Koppal. Since the document at Ex.A.1 has been produced on the part of the plaintiff mutt, the burden is on the plaintiff mutt to prove the same. The relevant portion of the cross-examination of R.W.1 conducted on 07.12.2019 goes to show that when the document at Ex.A.1 was confronted, R.W.1 clearly denied to admit or identify it. In the circumstances, this court instead of rejecting to admit it in evidence, allowed the plaintiff to get it marked as Ex.A.1 imposing a condition on the plaintiff mutt to independently prove the said document at Ex.A.1. Therefore, Ex.A.1 was merely marked, but the proof of contents of the said document remains unproved since the plaintiff mutt did not choose to give any evidence to prove Ex.A.1. Similarly, the plaintiff mutt confronted copies of the appeal prepared by
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Vyasaraj mutt through its GPA and order of the Assistant Commissioner. Though there was no admission on the part of R.W.1 in respect of the said documents, this court allowed the plaintiff to produce the said documents during cross-examination of R.W.1 without a proper confrontation and marked the said documents at Ex.A2 and Ex.A.3. Again the plaintiff mutt did not choose to give evidence to prove the said documents and therefore, both the documents can not be considered to rely upon in favour of the plaintiff mutt.
45. The defendant has produced copy of the order at Ex.R- 50 passed by SLR, Ballary (Camp Raichur) dated 07.09.1974 giving effect to correction of survey records in respect of R.Sy.No.192 to the extent of 27 acres 30 guntas in the place of 14 acres 07 guntas. A perusal of the detailed order at Ex.R.50 would show that the said order came to be passed on 07.09.1974 based on the survey report of ASLR, Raichur (who submitted the report as per Ex.R.25). As per the contents of the preamble of the said order, measurement work was undertaken by the ASLR, Raichur as per the application of Sri. K.V. Acharya, GPA of Uttaradi mutt dated 25.05.1973 (Ex.R.2) and in view of the direction of the JDLR, Gulbarga as per his letter on 24.01.1974 (Ex.R.14). It is further mentioned in the preamble that before passing the order at Ex.R.50, SLR, Ballary issued notice to Sri. K.V. Acharya, GPA of Uttaradi mutt on 27.07.1974 asking him that whether he has any objection to correct the survey records of R.Sy. No.192. Sri. K.V. Acharya gave no objection endorsement in writing on 03.08.1974 for correction of survey records for the area of 27 acres 30 guntas, which is
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 only available on the spot. With such preamble, the order came to be passed as per Ex.R.50 by the SLR, Ballary and accordingly the ASLR, Raichur was directed to correct the survey records and submit the report to the SLR, Ballary in that regard. The defendant has also produced another document at Ex.R.51, which is the letter written to the Deputy Commissioner, Raichur by ASLR, Raichur in respect of correction of survey records in R.Sy. No.192. As per the contents of the letter at Ex.R.51, the Deputy Commissioner, Raichur was intimated that as per the instructions of the JDLR, Gulbarga the Tahasildar, Gangavathi was informed that the SLR, Ballary is the competent authority to order corrections in survey records. Therefore, the JDLR, Gulbarga issued instructions to the Tahasildar, Gangavathi to give effect to the order of the SLR, Ballary in respect of the R.Sy. No.192 of Anegundi through his letter dated 08.01.1975 (Ex.R.28).
46. A comparative study of the documents produced by the defendant through the additional evidence especially at Ex.R.1, R.2, R.4 to R.9, R.12 to R.28, R.50 and R.51 would go to show that the procedure adopted by the plaintiff mutt is nothing but p u t t ing t h e c a rt b e fo re th e ho rs e . The e n t ire p ro ce s s o f modification of the land records went on without the approval or order of the revenue authorities.
47. No doubt it is true that no mutation regarding subdivision or correction of revenue records took place in respect of R.Sy. No.192 prior to the order passed by SLR as per Ex.R.50. The survey authorities would quote that under Rule 36(1) of the Karnataka Land Revenue Rules, corrections to the survey records can be effected. But, as per the Rule
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 36(1), SLR vests with the duty only to cause correct in arithmetical or clerical error whenever discovered. It doesn't mean that the SLR can resurvey and propose for correction of land records in the absence of any change in the revenue records of any land me rely on an application or can directly make addition to the original extent of la nd a dd in g un su rv e y e d lan d an d t h e re b y g iv in g e f f e c t to modification to the existing extent of land in the land records. Herein, existing entry of 14 acres 07 guntas of land in R.Sy. No.192 in the land records for any reasons cannot be considered as arithmetical or clerical error. Moreover, nowhere it is referred in the proceedings conducted by the survey department that entry of only 14 acres 07 guntas in the land records pertaining to R.Sy. No.192 was the clerical or arithmetical error. In the circumstances, the survey authorities had no occasion to proceed with one sided action of resurvey of land in R.Sy. No.192 and to take decision of correction of land records in contravention of provision of 140 (2) of the Karnataka/Mysore Land Revenue Act.
48. The learne d counsel f or the d efendant, during arguments, has highlighted Ex.R.49 a letter addressed to the Tahasildar, Gangavathi by the ASLR, Raichur dated 19.11.1973 regarding correction of area of survey No.192 of Anegundi. As per the said letter, the ASLR informed the Tahasildar that after measurement of R.Sy. No.192 he found that in addition to the land of R.Sy. No.192 consisting 14 acres 07 guntas there exists some more land measuring 08 acres 36 guntas, which is under the actual possession of "Uttaradi mutt", which has been left
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 unsurveyed during survey work. It is further mentioned that the entire land of old survey No.239 is surrounded by Tungabhadra river on all four sides is owned by Uttaradi mutt as per the sale deed produced by the mutt. The land which has been left un surveyed measures 08 acres 36 guntas has to be accounted in addition to the original area of 14 acres 07 guntas (total area 23 acres 03 guntas) in the records of rights in favour of Uttaradi mutt. Thus, as per Ex.R-49, proposal of ASLR to the revenue authority/the Tahasildar was given to effect correction of the revenue records by adding the said 08 acres 36 guntas to the original area of 14 acres 07 guntas, which turns into total area of 23 acres 03 guntas. Thus, as per the letter at Ex.R.49 the ASLR, Raichur was firm enough to mention that un surveyed addition land was found only to the extent of 08 acres 36 guntas and after adding the said area the plaintiff mutt is entitled to the total extent of area of 23 acres 03 guntas. Such information through the letter at Ex.R.49 on the part of ASLR, Raichur is much contrary to the order passed at Ex.R.50 passed by SLR Ballary said to have been passed on the report of the same ASLR, Raichur (Ex.R-5), which gave effect to the correction of land records to the extent of 27 acres 30 guntas, but not to the extent of 23 acres 03 guntas (as per Ex.R.49). Thus, material contradictions can be found from the resurvey reports of ASLR and from the final order of the SLR. No clarity is their on the basis of which report the final order was passed holding that the available land in R.Sy. No.192 measures 27 acres 30 guntas. When the defendant has established the unwarranted interest shown by the JDLR, Gulbarga in
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 interfering to get favourable order of correction of land records as per Ex.R.50 in the absence of correction of revenue records or in the absence of any instructions from the revenue authorities, the onus shifts on the plaintiff mutt to prove that the proceedings held through the survey department in getting correction of land records was lawful and binding on the defendant mutt.
49. In this regard, the plaintiff mutt has mainly depended on the orders of the KAT and Hon'ble High Court in the writ petition produced at Ex.P.37 and basing on the said documents the learned counsel for the plaintiff has vehemently argued before this Court that the order of SLR at Ex.R.50 and other orders of the survey authorities were already upheld by the order of the KAT, Bengaluru in appeal No.355/1977 filed by the Vyasaraj mutt and also from the order of the Hon'ble High Court in W.P. No.10017/1987 (Ex.P.37) and therefore nothing is left to reconsider to determine the legality of the said proceedings. On the contrary, the learned counsel for the defendant has highlighted para No.17 of the judgment of the Hon'ble High Court in RSA No.100446/2015 wherein, the Hon'ble High Court has clearly held as under:
Merely because the order dated 07.09.1974 passed by Superintendent of Land Records became the subject matter of the order by the KAT and even this Court, it does not prevent the trial Court or the FAC to allow such additional evidence taken on record and allow it to be proved in accordance with law and then consider and weigh such evidence and then decide the issue in accordance with law. Most of these documents were Government communication and Orders and were not in the control and possession of the defendant-RSM and defendant-RSM being not a party before KAT in the appeal filed by
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Vyasra ja Mutt, the FAC should have allowed these additional evidence which could have helped it in completing the quest for truth and meet the ends of justice and deliver a correct judgment.
50. The learned counsel for the plaintiff mutt has opposed to rely on the said relevant portion of the observation of the Hon'ble High Court made in RSA No.100446/2015 by contending that the said judgment of the Hon'ble High Court has been set aside by the Hon'ble Apex Court in Civil Appeal No.9333/2018. Per contra, it is the firm submission of the counsel for the defendant that in the said civil appeal, the Hon'ble Apex Court has partly set aside the judgment of RSA No.100446/2015 and upheld the remaining part of the said judgment. In this regard, the counsel has highlighted para No.19 of the judgment of the Hon'ble Apex Court, which runs as under:
Accordingly, we set aside the impugned judgment and order of the High Court in part, to the extent that it has relegated the parties before the trial Court for re-deciding the suit after allowing the respondent/defendant to produce additional evidence in accordance with law. Instead, the appeal is restored to the file of the High Court to its original number. The High Court shall frame points on which the additional evidence is allowed to be produced and direct the F1irst Appellate Court to take the additional evidence on record in accordance with law and then return the evidence to the High Court together with its findings thereon and the reasons thereof, within the prescribed time.
51. Thus, the relevant portion of the judgment of the Hon'ble Apex Court would clarify that the entire judgment passed in RSA No.100446/2015 was not set aside but it was rather modified by setting aside the particular portion of the said j u d g m e n t . I n i t i a l l y t h r o u g h i t s j u d g m e n t i n R S A N o . 100446/2015 the Hon'ble High Court remanded
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 the entire suit to the trial court for fresh disposal with a direction to allow the additional evidence to be placed on record by the defendant. The Hon'ble Apex Court, though set aside the said judgment in part only to the extent of relegation of parties before the trial court for fresh disposal, remained concurrent with other findings given in RSA No.100446/2015 by the Hon'ble High Court. Therefore, said judgment of the Hon'ble Apex Court cannot be construed that the entire judgment of RSA No.100446/2015 by the Hon'ble High Court came to be set aside. In the circumstances, absolutely no hurdle is there for this Court to rely upon the opinion of the Hon'ble High Court, which is more in the form of instructions to consider and weigh the additional evidence and to re-decide the issues arising in the suit in accordance with law.
52. The defendant has put forth material documents by way of additional evidence to show that proceedings held before the survey authorities was not in proper manner. In view of the o b se r va t io n s m a d e b y t h e Ho n ' b le Hi g h Co u r t in RS A No.100446/2015 as discussed earlier, the defendant is not precluded from disproving the legality of the survey proceedings held in respect of the land in R.Sy. No.192 of Anegundi village. On the contrary, the plaintiff has failed to independently prove the said proceedings as lawful, but has rather relied on the order passed in KAT and in the writ petition (Ex.P.37). Since the present defendant was not party to the proceedings of KAT and writ petition, the orders passed by the KAT and in the writ petition cannot be considered as estopal to the defendant from disproving the legality of the survey proceedings. When the request
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 for corrections of the revenue records were pending before the revenue authorities (as referred in Ex.R.2), the plaintiff mutt hurriedly approached the survey authorities bypassing the revenue authorities and got resurveyed the land in dispute and succeeded in getting the order as per Ex.R.50. A perusal of the entire process held before the survey authorities sidelining the revenue authorities is not in order. There was no lawful reason for the survey authorities to hold that the unsurveyed land adjacent to the land measuring 14 acres 07 guntas in R.Sy. No.192 belongs to the plaintiff mutt and to presume the ownership of plaintiff mutt over the said property. The survey authorities were not competent persons to determine ownership of the plaintiff mutt over the unsurveyed adjacent land. The documents would reveal that everything went on assumptions and presumptions on the part of the survey authorities so to come to conclusion that the unclaimed or unsurveyed waste land situated adjacent to the land measuring 14 acres 07 guntas in R.Sy. No.192 is under the ownership and possession of the plaintiff mutt. As discussed earlier, forfeiture of the earlier purchased land and regrant of the land only to the extent of 14 acres 07 guntas were completely neglected or over looked in the proceedings and simply held that the plaintiff mutt is entitled for additional land of 13 acres 23 guntas and thus adding to the said extent of land to the earlier 14 acres 07 guntas modification to the land records were made with the total 27 acres 30 guntas in the place of 14 acres 07 guntas. Accordingly, in the subsequent proceedings the revenue records also came to be modified on the basis of the survey records.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015
53. The claim of the plaintiff mutt that it perfected title over the additional land of 13 acres 23 guntas is mainly depended on the order passed by the survey authorities as per Ex.R.50 and subsequent amendment carried out in the revenue records. That apart, of course the plaintiff has relied on the sale deed at Ex.P.3 to prove that it purchased the land to the extent of 100 acres, but its claim remains inconsistent from time to time. Though the plaintiff relies on the sale deed at Ex.P.3, in the first legal battle initiated on its part through O.S. No.65/1 of 1959-60, the plaintiff mutt did not choose to seek declaration over the entire 100 acres or 100 bigaas, but restricted its claim of title only to the extent of 14 acres 07 guntas. Such attempt of the plaintiff definitely tallies with its earlier application for grant of land as per Ex.D.343. In the said application the plaintiff mutt sought for re-grant of only 14 acres 07 guntas out of the forfeited land. Accordingly, re-grant was made as per Ex.D.344. It shows that the plaintiff rightly sought declaration of title in the earliest suit only to the extent of 14 acres 07 guntas. It further shows that the plaintiff was aware that its ownership right is only restricted to 14 acres 07 guntas. Therefore, absolutely no base can be found on the part of the plaintiff mutt to claim that it was entitled to get additional land of 13 acres 23 guntas, which remained as unsurveyed land adjacent to the land measuring 14 acres 07 guntas in R.Sy. No.192. The bonus addition of 13 acres 23 guntas in favour of the plaintiff mutt by way of proceedings conducted before the survey authorities cannot be considered as lawful confirmation of title of the plaintiff mutt over the said additional land of 13 acres 23 guntas.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Since the title over the 13 acres 23 guntas of land has seriously been disputed, the plaintiff has to prove its lawful title over the said additional land by seeking declaration of title. Therefore, in the absence of lawful proof of its title over the entire suit land, it is hard to believe that the plaintiff is in exclusive possession of the entire extent of land measuring 27 acres 30 guntas. In the circumstances, additional evidence adduced by the defendant by producing the R-series documents pertaining to the survey proceedings would certainly cause impact on the issue and point for consideration framed by the trial court and by this court regarding the possession of the suit property.
54. It is undisputed fact that the defendant mutt has preferred W.P. No.111125/2014 before the Hon'ble High Court challenging the legality of the proceedings held before the survey authorities. As per the observations made by the Hon'ble High Court in RSA No.100446/2015 it is evident that in the said W.P., the Hon'ble High Court insisted the state government to disclose its stand about access land of 13 acres 23 guntas. The Chief Secretary of the revenue department filed an affidavit before the Hon'ble High Court in the W.P. stating that the access land belongs to the government and the land measuring 14 acres 07 guntas of R.Sy. No.192 belongs to the plaintiff mutt.
55. It is not under dispute that as part of proceedings before the Hon'ble High Court in the said W.P. No.111125/2014 a fresh survey was conducted in the disputed land and a survey map came to be prepared. In this regard, the defendant has produced a survey map at Ex.R.53 and got examined in-charge ADLR of Gangavathi as R.W.5 to
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 prove the said document. As per the evidence of R.W.5 he served as survey supervisor in the year 2011-12 at Gangavathi. R.W .5 has further stated in his examination-in-chief that in view of the writ petition pending before the Hon'ble High Court, in the year 2015 a joint survey was conducted by the revenue and survey departments in respect of the land bearing R.Sy. No.192 of Anegundi and in the said survey work officials like DDLR, Survey Supervisor, Surveyor and Tahasildar participated. As per his further evidence, no survey number was allotted at the time of the survey work conducted in the year 2015 since the land area was full of hillock, nadinaala and kharab area. R.W.5 has voluntarily produced a map prepared during the 2015 survey work and the said map is marked at Ex.R.53 and the signature of R.W.5 at Ex.R.53(a). According to R.W.5, the survey map prepared in the year 1930 and the survey map prepared in the year 2015 (Ex.R.53) resemble with each other while the survey map of 1974 does not match with the said survey maps of 1930 and 2015. The learned counsel for the plaintiff mutt has cross-examined R.W.5 at length. In such of his cross- examination, R.W.5 has clearly stated that the map at Ex.R.53 was prepared as per the instruction of the Hon'ble High Court given in 2014 writ petition. Such of his testimony was not denied during the cross-
examination. Therefore, it is believable that the map at Ex.R.53 was prepared by conducting fresh survey of the disputed land to produce before the Hon'ble High Court in W.P.No.111125 of 2014 by the concerned revenue and survey authorities. The document at Ex.R.53, thus, has
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 been proved as genuine on the part of the defendant by examination of R.W.5 who is relevant person to depose evidence in this regard. Moreover, the plaintiff mutt has completely admitted the existence, genuineness and authenticity of the R-series documents. Therefore, there is no hurdle for the Court to rely upon the fresh survey sketch produced at Ex.R.53.
56. A thorough perusal of the survey map at Ex.R.53 would clarify that the land bearing R.Sy. No.192 measures only to the extent of 14 acres 07 guntas and out of total 14 acres 07 guntas, 07 acres 15 guntas has already been submerged in the river and only 06 acres 32 guntas is available as tangible land in R.Sy. No.192. As per the said map, the adjacent uncultivable land shown by yellow colour has not been not mentioned with any survey number (as deposed by R.W.5 in his evidence). A separate 21 guntas of land is marked with orange colour and the said land is shown as situated out side the boundary of the R.Sy. No.192 and it is clearly mentioned that Navavrundavanas are situated within the boundaries of that 21 guntas of land shown by orange colour. Nothing worth was elicited during entire cross-examination of R.W.5 so to discard or disprove the map at Ex.R.53. Moreover, the defendant has also produced another m a p a t E x. R. 3 5 sa id t o h a ve b e e n p r e p a re d b y Ha m p i Development Authority, which resembles and tallies with the map at Ex.R.53 to show that the place of Navavrundavanas is completely at the outside of the boundaries of R.Sy. No. 192. Therefore, the document at Ex.R.53 supports the views of the trial Court that the plaintiff failed to prove the existence of the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Navavrundavanas within the area of 14 acres 07 guntas.
57. In their final attempt of disproving the claim of the plaintiff mutt, the defendant mutt has raised doubt about genuineness of the very sale deed of 2016. In this regard, the defendant has got examined Sub-Registrar as R.W.6 who deposed that she served as the Sub-Registrar of Gangavathi from 07.03.2014 to 29.06.2015 and she issued the documents furnished at Ex.R.36 and R.52 under the RTI Act to the applicant.
58. R.W.6, in her cross-examination, has admitted that xerox documents which she referred in Ex.R.36 are nothing but the sale deeds produced at Ex.R.37 and R.38. In connection with such evidence of R.W.6 when Ex.R.36 and R.52 are verified, in Ex.R.36 information was supplied to the applicant (plaintiff mutt) from the office of Senior Sub- Registrar, Gangavathi by R.W.6 regarding registration of the sale deed in respect of R.Sy. No. 239 of Anegundi. It is shown in the document at Ex.R.36 that two registered documents (copies of sale deeds produced at Ex.R.37 and Ex.R.38 as admitted by R.W.6 in her cross-examination) the sale deed in respect of R.Sy. No. 239 of Anegundi village measuring 100 acres was registered in the office of the Senior Sub-Registrar, Gangavathi, in volume No.1, register No.3, page Nos. 2 and 3 dated 19 th of ardibahisht 1325 fasli. But after verification of the documents in the office, R.W.6 found that the sale deed in respect of R.Sy. No. 239 measuring 100 acres of Anegundi village was not registered in the said volume No.1, register No.3 page No.2 and 3 dated 19th of ardibahisht 1325 fasli. Thus, as per the evidence of R.W.6, who furnished Ex.R.36 under the RTI Act to
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 the defendant mutt, the contents of sale deed of 1916 regarding its registration details differ from the office records of the Sub-Registrar office, Gangavathi. According to R.W.6 the said sale deed was not registered in the shown volume number and register number of the Sub-Registrar office, Gangavathi as shown in the sale deed. In her cross- examination, R.W.6 has admitted that the sale deed produced at Ex.R.37/R.38 was registered at camp office of Anegundi. But in further cross-examination, R.W.6 was clearly suggested by the learned counsel for the plaintiff mutt that immovable properties of Anegundi samsthan were registered in the Sub-Registrar office of Gangavathi during the year 1916. Anyhow, evidence of R.W.6 raises doubt regarding genuineness of contents of the sale deed of 1916 in respect of its registration details. The learned counsel for the defendants has vehemently argued that the sale deed itself is created one and the registration details of the said sale deed of 1916 are not tallying with the office records of the Sub-Registrar, Gangavathi. On the contrary, nothing worth has been elicited in the cross-examination of R.W.6 to deny her version.
59. In addition to his argument regarding genuineness of the sale deed of 1916, the learned counsel for the defendant has highlighted the evidence of R.W.8 and the documents produced at Ex.R.34 and R.47. R.W.8, in his examination-in-chief, has stated that he worked as Tahasildar of Gangavathi in the year 2014-15 and he supplied the documents at Ex.R.34 and R.47 to the applicant under the RTI Act. His is further evidence that he furnished the documents at Ex.R.34 and R.47 on the basis of the information available from the documents of the office. As per the contents
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 of the document at Ex.R.34 survey work of Anegundi village was first time conducted under 1888 scheme and original tippani was prepared in the year 1926 (1335 fasli) and original survey map was prepared in the year 1930. On the basis of such information furnished through Ex.R.34, the learned counsel for the defendant has urged that survey numbers were first time allotted in the year 1926 to the lands of Anegundi village but not prior to that. Thus the defendant mutt has raised doubt about genuineness of the sale deed at Ex.P-3 in confrontation with the d o c u me n t a t E x . R. 3 4 . I n t h e s a le d e e d o f 1 9 1 6 , l a n d i s mentioned with survey number 192, but as per Ex.R-34 the survey tippani was first time prepared in the year 1926 to the lands of Anegundi village and prior to that the lands were recognized with maaji and killa numbers. Therefore, the counsel has argued that prior to 1926, there was no occasion for the alleged vendor and the plaintiff mutt to mention survey number in the sale deed of 1916. Thus the defendant mutt has doubted the genuineness of the sale deed.
60. While submitting his oral argument, the learned counsel for the plaintiff mutt has relied on two decisions reported in 2017 SCC online HYD - 366 (Mrs. M. Pratima Reddy V/s. NICCO UCO Alliance Credit Ltd., Kolkatta) and 2003 (8) SCC 745 (Narbada Devi Gupta V/s. Birendra Kumar Jaiswal and another), in which the Hon'ble Apex Court has held that, mere production and marking of a document as exhibit is not enough to prove the contents of the said document. Execution of the document has to be proved by admissible evidence. Though the learned
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 counsel relied the said two decisions after conclusion of his oral argument, subsequently the same counsel has filed detailed written argument and clearly admitted the existence, genuineness/authenticity of the R-series documents. Moreover, as discussed supra, the defendant got examined all the related witness as R.W.1 to R.W.3, who obtained the R-series documents under RTI Act and the officials who supplied the said documents in their official capacity as R.W.4 to R.W.5 and R.W.8. In the circumstances, the documents produced at Ex.R.1 to R.54 were not merely produced and marked as exhibits, but the contents of the said documents have also been proved with the evidence of R.W.1 to R.W.8.
61. The learned counsel has relied on another decision reported in 1998 (3) SCC 331 (Tirumala Tirupati Devasthanams V/s. K.M. Krishnaiah), in which the Hon'ble Apex Court has held as under:
(A):- Evidence Act - Section 13 - Judgment not inter partes admissible in evidence under Section 13 as Evidence of assertion of a right to property in dispute -
judgment rendered in an earlier suit declaring title of the present appellant in a land - Held, admissible and could be relied upon by appellant in the subsequent suit filed by respondent for grant of permanent injunction against the appellant in respect of the same land, even though respondent was not a party to the earlier suit.
62. The learned counsel for the plaintiff, relying on the said decision, submitted that in view of declaration of title in the earlier suit bearing O.S.No.65/1 of 1959-60, there is no need for the plaintiff to again seek declaration in the present suit over the suit property. Of course, the plaintiff herein
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 does not need to seek declaration of title in respect of the subject matter of the previous suit in the present suit or in subsequent suits against the defendant, but the suit property in the earlier suit is shown as 14 acres 07 guntas, whereas the present suit the extent of land of the suit property is shown as 27 acres 30 guntas. Therefore, there was no declaration of title in the earlier suit to the extent of additional 13 acres 23 guntas of land.
63. Similarly, the learned counsel for the plaintiff has argued that the matter regarding proceedings held before the survey authorities has already been decided and confirmed by the KAR and the Hon'ble High Court in WP (Ex.R.37). Though the defendant herein was not party to the said proceedings before the KAR and the Hon'ble High Court in WP, the defendant having common cause with the Vyasaraj mutt, who was party to those proceedings, would be estoped from re-agitating the said matter in the present suit. Constructive resjudicata bars the defendant to dispute the proceedings held before the revenue authorities in corrections of land records pertaining to R.Sy. No.192. In support of his arguments, the learned counsel has relied on following decisions;
1) 1999 (5) SCC 590 (Hope Plantations Ltd V/s. Taluk Land Board Peermade & another)
2) 2005(1) SCC 787 (Bhanu Kumar Jain V/s.
Archana Kumar & another)
3) 1976 (4) SCC 66 (Y.B. Patil and others V/s. Y.L. Patil)
4) 2016 (14) SCC 49 (Satyendra Kumar & others V/s. Raj Nath Dubey & others)
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64. In the relied decisions supra, the Hon'ble Apex Court discussed about constructive resjudicata and held that it is not permissible for parties to raise an issue inter se where such issue already decided in an earlier proceedings under the same statute even if resjudicata in the strict sense not applicable, its principle would be applicable. Thus, the learned counsel for the plaintiff has argued that though the present defendant was not party to the proceedings before the KAT and Hon'ble High Court in WP (Ex.R.37), the decisions in the said proceedings would operate as constructive resjudicata against the present defendant. In reply, the learned counsel for the defendant has highlighted the observations of the Hon'ble High Court in para No.17 of its judgment on RSA No.100446/2015, wherein the Hon'ble High Court has observed merely because the order dated 07.09.1974 passed by SLR became the subject matter of order by the KAT and even this Court (High Court), it does not prevent the trial Court or the FAC to allow such additional evidence and allow it to be proved in accordance with law and then consider and weigh such evidence and then decide the issues in accordance with law. Such observation of the Hon'ble High Court instructs this Court to consider the additional evidence and to give findings about the impact of the additional evidence. As such, since the defendant was not party to the proceedings before the KAT and the Hon'ble High Court in WP, the decisions made there do not operate as constructive resjudicata against the defendant. The counsel has further submitted that at no point of time defendant mutt had common cause with the Vyasaraj mutt, who was party to the said proceedings. In addition, the counsel for defendant has
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 relied on a decision reported in AIR 1983 SC 684 (State of Bihar V/s. Radha Krishna Singh), wherein the Hon'ble Apex Court has held that judgment in personam not inter parties are not at all admissible in evidence and on a parity of aforesaid reasoning, the recitals in a judgment like findings given in appreciation of evidence made or arguments or genealogies referred to the judgment would be wholly inadmissible in a case where neither the plaintiff nor the defendant were parties.
65. Herein, as per the submission of the counsel for the defendant mutt, the judgments passed in KAT or in WP by the Hon'ble High Court are judgments in personam but not in rem. Since the defendant was not party to those proceedings, the findings in those proceedings do not bind on the rights of the defendant and so the defendant mutt cannot be precluded to prove independently its claim. Such argument of the counsel holds water in view of Section 35 of the Specific Relief Act which speaks about effect of declaration as a declaration made under chapter 6 of the Act is binding only on the parties to the suit and persons claiming through them respectively. Therefore, in view of the observations of the Hon'ble High Court in RSA No.100446/2015 and as per the section 35 of the Specific Relief Act coupled with the decision relied by the defendant, it is established that constructive resjudicata is not applicable to the case on hand.
66. Albeit, a serious question over the title of the entire extent of the suit land was raised by the defendant through the written statement pleadings, the plaintiff felt it comfort to proceed with the only relief of bare injunction. No
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 doubt it is true that in a suit for injunction simpliciter, possession is the only decisive factor. The plaintiff rests with the initial burden to prove his la w f u l p o s se s s io n o v e r t h e d isp u t ed p ro p e rt y . No rma lly possession follows title. Herein, the plaintiff's justification of possession is based on his claimed title over the entire extent of suit land. The documents at Ex.R-series by way of additional evidence put forth by the defendant would establish that mere entry of name of the plaintiff mutt into the survey or revenue records does not confer its title over the additional extent of land measuring 13 acres 23 guntas. Similarly, the additional evidence through Ex.R-35 and R-53 (recent survey maps) consolidate the stand of the learned trial Court in holding that all the Navavrundavanas are not within the boundaries of land measuring 14 acres 07 in Rsy. No. 192. Thus, when the title over the entire suit property is under serious dispute on the part of the defendant, a question arises that whether the courts can find out the lawful possession of the suit property without determining the disputed title. In a decision reported in (2008)4 SCC 594 (Anathula Sudhakar Vs. P. Buchi Reddy), the Hon'ble Apex Court has held as under;
A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown.
As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession . But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
67. With regard to case on hand, admittedly the suit property is an open land and the defendant has raised a serious cloud on title of the plaintiff. In the circumstance, in view of the decision referred supra, no court would be in a comfortable position to decide the possession of the plaintiff over the entire extent of the suit land unless the plaintiff proves his title over the entire property. The subject matter in O.S. No. 65/1 of 1959-60 was only to the extent of 14 acres 07 guntas, whereas in the present suit the total extent of suit land is described as 27 acres 30 guntas. As such, the plaintiff mutt certainly can not seek extension of benefit of the decree of the previous suit to the additional extent of land i.e., 13 acres 23 guntas regarding its title. Therefore, the additional evidence presented on the part of the defendant mutt would prove the failure of the plaintiff mutt to prove its lawful and actual possession over the entire 27 acres 30 guntas of land and its exclusive performance of aradhanaas of the Navavrundavanas.
68. The allegation of the plaintiff mutt that the defendant has been interfering with the plaintiff*s possession of the suit property and causing obstruction to the Aradhanaas of three vrundavanas. There is no dispute that the plaintiff and the defendant mutts belong to Madwa sect.
Navavrundavanas are the sanctum to both the mutts and their followers. For the reasons discussed earlier, existence of the Navavrundavanas within the boundaries of
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 14 acres 07 guntas of Rsy. No. 192 has not been established. In the circumstances, the allegation that the defendant mutt and its followers cause obstruction to the Aradhanaas of the plaintiff mutt has not been proved.
69. In view of the impact of the additional evidence put forth by the defendant mutt, this Court holds that the learned trial Court properly answered the issue Nos. 1 to 3. It is further held that in the earlier judgment of the present appeal the points for consideration regarding possession of the entire suit land and the alleged interference of the defendant mutt have wrongly been answered as proved. Resultantly, the suit is liable to be dismissed.
70. That for the reasons discussed supra, the following;
ORDER In view of the directions of the Hon'ble High Court, findings have been given on formulated points a n d t h e p o i n t N o s . 1 a n d 2 a r e a n s w e r e d accordingly.
Office is directed to send the entire records to t he Hon' ble High Cour t re lat ing to RSA No .
100446/2015."
20. As can be seen from the aforesaid findings recorded on points (i) and (ii) formulated by the Apex Court and this Court, the first appellate court came to the conclusion that in the light of the additional evidence on record, the judgment and decree of the trial court was correct and proper and the findings recorded by the first appellate court in its earlier judgment (which is impugned in the
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 present appeal) is incorrect and improper and the suit of the plaintiff
- Mutt was liable to be dismissed.
21. A perusal of the material on record as referred to supra, will indicate that during the pendency of the appeal before the first appellate court, the defendant-Mutt preferred W.P.No.111125/2014 against the respondent-Mutt, State Government and its authorities challenging the survey proceedings and survey orders dated 18.04.1974 and 07.09.1974 passed by the Assistant Superintendent of land records and Superintendent of land records;
as stated supra, the said orders were challenged by Sosale Vyasaraja Mutt and confirmed by the Joint Director of Land records vide order dated 05.11.1976 and the Karnataka Appellate Tribunal in Appeal No.356/1977 dated 18.07.1981 and ultimately, culminated in an order dated 22.11.1989 passed by this Court in W.P.No.18017/1987 which was ultimately dismissed by this Court.
22. During the pendency of the said W.P.No.111125/2014, this Court issued several directions to the State Government vide order dated 08.04.2015 which is as under:
"In the light of the rival contentions urged by Sri. S. Vijayashankar, Learned Senior Counsel along with Sri. Harsh Desai, appearing for respondent No.5 and Sri. C.V.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Nagesh, learned Senior Counsel along with Sri. S.S. Bawakhan, appearing for the petitioner, and in view of the statement made by the State Government in paragraphs 7, 8, 10 and 11 in the Statement of Objections to the effect that, the Deputy Commissioner of Land Records, Gulburga, on the basis of objection wrote letter to the Assistant Superintendent of Land Records, Raichur, to submit a detailed report on the objection raised by Hanumanthachar Sarjoshi, along with relevant survey records. The Superintendent of Land Records, Bellary, communicated by the letter dated 15-10-1973 to the Assistant Superintendent of Land Records, Raichur that the correction of wrong entry in the record of rights is concerned with the revenue authorities and the matter may be referred to the revenue authorities. The Superintendent of Land Records, Bellary, holds that the survey authority has no jurisdiction to correct the entries in the record of rights. The Assistant Superintendent of Land Records, Raichur, by letter dated 28- 10-1973 informed the Deputy Commissioner of Land Records, Gulbarga, that as per the direction of the Superintendent of Land Records, Bellary, he has been directed to refer the matter to the Tahasildar, Gangavathi, for further action.
In para-10 of the Statement of Objections it is stated that Superintendent of Land Records, Bellary, passed an order directing the correction of survey sketch and also to correct the extent of Sy.No.192 of Anegundi measuring 27 acres 30 guntas instead of 14 acres 07 guntas, though the re-grant was made to an extent of 14 acres 07 guntas in favour of Uttaradi Mutt but without her re-grant order for
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 remaining area which was un-assessed, Government land was included in the land Sy.No.192 measuring 27 acres 30 guntas, by the Superintendent of Land Records, Bellary, without any authority of law, and also stated the said excess land to an extent of 13 acres 23 guntas is an un- assessed Government land. Therefore, the inclusion of excess land of 13 acres 23 guntas in extent of land Sy.No.192 of Anegundi is not correct.
In view of the aforesaid contentions urged and the specific averments made in the statement of Objections by the Government, this Court feels the following clarifications shall be filed by way of affidavit by the competent authority of not less than the rank of Principal Secretary of the Revenue Department for effective adjudication of the matter between the parties:
1. What is the action taken by the State Government to protect the Government Land as stated in the Statement of Objections?
2. What is the action initiated against the Assistant Superintendent of Land Records, Raichur, who determined the extent of land i.e. 27 acres 30 guntas in Sy.No.192 inspite of refrain order/direction issued by the Deputy Commissioner of Land Records, Gulbarga Division, dated 6- 12-1973?
3. What is the basis for the Superintendent of Land Records, Bellary to correct the survey sketch and also to correct the extent of Sy.No.192 measuring 27 acres 30 guntas instead of 14 acres 07 guntas as per regrant order?
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NC: 2024:KHC:25169 RSA No. 100446 of 2015
4. What is the correct topography of the land in question as stated by the Government in the Statement of Objections?
5. Whether the entire extent of land in Sy.No.192 measuring 75 acres situated in Anegundi village was restored to respondent No.5 in view of categorical statement made by Sri. S. Vijayashankar, learned Senior Counsel appearing for respondent No.5 that the entire 75 acres of forfeited land was restored to the respondent No.5?
6. What is the extent in the original survey sketch at the time of vesting the land in the Government?
7. What is the land existed in Sy.No.192 of Anegundi village as on the date of filing if the present writ petition?
8. What is the definite stand of the State Government in the present writ petition with regard to whether the land in question belongs to State Government or not, in view of the inconsistent stand taken in the earlier proceedings and in the present writ petition?
23. In pursuance of the aforesaid directions, the Principal Secretary of the State Government filed an affidavit dated 27.06.2015 which reads as under:
"I Dr. B. Basavaraaju S/o Late Basavaiah presently working as Principal Secretary to Government, Revenue Department do here by state on oath regarding the clarification sought by the Hon'ble High Court of Karnataka
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 at Dharwad Bench in Writ petition No.111125/2014 as follows:- as per the information furnished by Deputy Commissioner, Koppal & the same has been verified with reference to records.
1. Since 1959 there has been a litigation between Uttaradimutt and Vyasaraymutt with regard to land Sy.No.192 of Anegundi village situated in Navabrundavan Gaddi, and the litigation are still pending. Both parties claiming their rights over the said property, as such after the final disposal of all the litigations pending in different courts, the state government will take necessary steps to protect its property.
2. After going through the entire records it is seen that the predecessors of the office of Deputy Commissioner of Land Records, Gulbarga have not taken any action against the Assistant Superintendent of Land Records Raichur who determined the extent of the land i.e. 27 acres 30 guntas in Sy.No.192 in spite of refrain order/direction, issued by the Deputy Commissioner of Land Records Gulbarga division dated:06-12-1973.
3. Perusal of the records shows that Superintendent of Land Records Bellary has visited the spot and prepared the sketch on 29-04-1974. In the said sketch, excess land (unsurveyed land) which has been shown by red line which was intended to be included in Sy.No.192 of Anegundi village, the said survey sketch and the letter of Joint Director of Land Records Gulbarga dated 28-06-1974 are the basis to correct survey sketch and also to correct the extent of the Sy.No.192 measuring 27 acres 30 guntas instead of 14 acres 7 guntas.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015
4. Recently, on 16-05-2015 the entire Brundavana Gaddi was surveyed by surveyors, survey supervisors in the presence of ADLR, DDLR, AC-Koppal and Tahsildar- Gangavathi and prepared the sketch to know the exact topography of the land in question and the sketch is enclosed herewith.
5. The entire extent of land Sy.No.192 of Anegundi village was forfeited to the government of Sansthan of Anegundi for non payment of the land revenue. Thereafter on the application of pontiff of Uttardimutt, the then government, i.e. Anegundi Sansthan, on the basis of the report of the patwari re- granted the land measuring 14 acres 7 guntas only in favour of Respondent No.5 as per the re-grant order.
6. At the time of vesting the land in the government as per the original pakka book the extent of the land was 14 acres 7 guntas.
7. As on the date of filing of the present writ petition, 27 acres 30 guntas existed in Sy.No.192 of Anegundi village as per the map of the SSLR Bellary.
8. The definite stand of the state government in the present writ petition is that land Sy.No.192 measuring 14 acres 7 guntas is belongs to Uttaradimutt, the remaining area in the said Brundavan Gaddi is belongs to the state government.
Place:Bengaluru Sd/-
Date:27-06-2015 Dr. B. Basavaraaju, I.A.S
Principal Secretary to Government
Revenue Department"
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RSA No. 100446 of 2015
24. In the aforesaid W.P.No.111125/2014, this Court passed an order dated 20.03.2019 directing both the present RSA to be considered along with the said writ petition. Accordingly both the appeal and writ petition were heard together by this Court and W.P.No.111125/2014 is also disposed of by this Court today by a separate order.
25. In the backdrop of the aforesaid facts and circumstances, I will now proceed to answer the substantial questions of law framed by this Court.
26. A perusal of the substantial questions of law framed by this Court referred to supra will indicate that the findings recorded on questions of law (ii), (iii) and (iv) would have a direct and substantial impact / bearing on question of law No.(i) which is generic in nature. Further, questions of law (ii) to (iv) are interlinked and interconnected with each other and it would be just and expedient to take up all the three questions together for consideration and thereafter, deal with question of law No.(i) framed by this Court.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Re-Substantial Question of law Nos.(ii) to (iv):-
27. A perusal of the material on record will indicate that the trial court came to the conclusion that the right to possess and enjoy the suit schedule property by the plaintiff - Mutt was different and distinct from the right to perform poojas, Aaradhanas etc., in the Nava Brindavanas. In this context, it is relevant to state that the trial court considered and appreciated the pleadings and evidence of the parties and upheld the claim of the defendant -
Mutt and came to the conclusion that in the light of the specific contention of the plaintiff - Mutt that its right to perform Aaradhanas, Poojas etc., in the suit schedule property was being interfered with by the defendant-Mutt, a decree for permanent injunction albeit in relation to the suit schedule immovable property cannot be passed in favour of the plaintiff - Mutt since the same would have the effect of preventing the defendant - Mutt from performing poojas, Aaradhanas etc., in the Nava Brindavanas.
27.1 In Narasinga's case and Ishan Chander Roy's case supra, the Calcutta High Court held that the right of worshipping of an idol was different from a right / interest in immovable property;
in this context, it is relevant to state that right of ownership would
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 not include the right to perform religious rituals and right of worship on the religious structures established/ situated on the land in question; the Right of Shebaitship, Right of Mahanta, Right of holding a religious office, Right to hold office of priest are propriety rights/ incorporeal rights in distinction to rights over an immovable property.
27.2 It follows there from that merely because the plaintiff -
Mutt was in lawful possession and enjoyment of the suit schedule property, it does not ipso facto lead to the conclusion that the plaintiff - Mutt alone has an absolute / indefeasible / exclusive right to perform poojas, Aradhanas etc., or that the defendant -
Mutt would not be entitled to perform the said poojas, Aaradhanas in the Nava Brindavanas. In fact, the material on record, in particular the plaint averments themselves disclose that apart from the plaintiff-mutt and its predecessors, peethadhipathis, etc., defendant-mutt as well as its predecessors, peethadhipathis, etc., were also performing poojas, Aaradhanas in the Nava Brindavanas. It is also necessary to state that though the trial court recorded specific and categorical findings in this regard and the said findings not having been set aside, the first appellate court clearly committed an error in setting aside the judgment and
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 decree of the trial court without appreciating that a decree for permanent injunction over the suit schedule property which would have the consequence / effect of preventing the performance of poojas, Aaradhanas by the defendant - Mutt as upheld by the trial court could not have been passed against them and in favour of the plaintiff - Mutt. In other words, in the light of the undisputed fact that the findings recorded by the trial court upholding the claim of the defendant - Mutt to perform poojas, Aaradhanas in the Nava Brindanvanas having not been set aside, the question of passing a decree for permanent injunction which would result in preventing / obstructing the defendant-Mutt from performance of poojas, Aaradhanas etc., is clearly impermissible in law and consequently, the said finding recorded by the first appellate court deserves to be set aside.
27.3 The question of exclusivity of performance in pooja or rituals truly depends on the quantity and quality of evidence led by the parties. The matter pertaining to religious rights is truly the one which falls within the realm of expert evidence; in order to prove exclusivity, the plaintiff Mutt ought to have addressed the issue about as to how they claim exclusivity/ superiority over other Mutts for performing these rituals over the Nava Brindavanas; except for
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 making a bald statement that they have a right over the five Brindavanas nothing is adduced either by way of an expert evidence or historic evidence/ scriptures to demonstrate the exclusivity over the right of worship. In these circumstances it is difficult to accept that the Plaintiff Mutt had an exclusive right and therefore, the judgment and decree of the Trial Court was sound and reasonable in the facts and circumstances of the case; this was also in the face of a pleading made by the plaintiff Mutt itself wherein it is stated that their rights are restricted to only five Brindavanas out of the nine Brindavanas and consequently, the first appellate court clearly erred in passing a decree for permanent injunction restraining the defendant-Mutt from performing Poojas, Aaradhanas, etc., in the Navabrindavanas.
27.4 A perusal of the material on record clearly establishes that while the plaintiff-Mutt had not adduced legal or acceptable evidence to indicate exclusivity in performance of Poojas, Aaradhanas etc., in the Navabrindavanas, the oral and documentary evidence adduced by the defendant-Mutt in the first instance as well as before the first appellate court by way of additional evidence and the findings recorded by the first appellate court was a pointer to the fact that the defendant-Mutt was also
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 performing Poojas, Aradhanas etc., in the Navabrindavanas for decades and consequently, the plaintiff-Mutt would not be entitled to a decree for permanent injunction restraining the defendant-
Mutt from continuing to perform Poojas, Aradhanas etc., in the Navabrindavanas.
27.5 A perusal of the impugned judgment and decree will also indicate that in the light of the specific / categorical findings recorded by the trial court upholding the right of the defendant -
Mutt to perform Aaradhanas, poojas in the Nava Brindavanas, without setting aside the said findings, the first appellate court proceeds on the erroneous premise that the suit was one for permanent injunction simpliciter and not for declaration of rights of poojas and Aaradhanas etc., and the same was beyond the scope of the suit and the appeal; in this context, the first appellate court failed to appreciate that a decree for injunction in favour of the plaintiff - Mutt which would result in and have the effect of restraining the defendant-Mutt in the performance of poojas, Aaradhanas etc., could not have been passed, more so, without setting aside the findings recorded by the trial court in favour of the defendant - Mutt. Under these circumstances, I am of the considered opinion that the first appellate court clearly fell in error
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 in decreeing the suit for permanent injunction in favour of the plaintiff - Mutt and against the defendant - Mutt.
27.6 The material on record discloses that the plaintiff -
Mutt placed reliance upon the judgment and decree dated 30.03.1968 passed in the earlier round of litigation in O.S.No.65/1 of 1959-60 in order to contend that the said judgment and decree was passed in favour of the plaintiff - Mutt against the defendant -
Mutt and the same has attained finality and become conclusive and binding upon the defendant - Mutt whose defence was barred by the principles of res judicata. It is a matter of record that the said suit was instituted by the plaintiff-Mutt against Sri.Raghavendra Swamy Mutt (Defendant herein) and Sosale Vyasaraja Mutt. In this regard, a perusal of the said judgment and decree will clearly indicate that though the title and possession of the plaintiff - Mutt has been upheld in the said suit by the trial court and confirmed by the first appellate court in R.A.No.46/1968 dated 02.02.1972 in respect of 14 acres 7 guntas, no finding has been recorded by either the trial court or the first appellate court to the effect that the plaintiff-Mutt alone had / has exclusive / absolute right to perform the poojas, Aaradhanas etc., in the Nava Brindavanas; on the other hand, the first appellate court came to
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 the conclusion that the Nava Brindavana Gaddi was in joint possession and enjoyment of the three Mutts viz., Sri.Uttaradhi Mutt (plaintiff herein), Sri.Raghavendra Swamy Mutt (defendant herein) and Sri.Sosale Vyasaraja Mutt and that all the three Mutts were performing Aaradhanas and Poojas in the Nava Brindavanas. It is therefore clear that no reliance can be placed by the plaintiff - Mutt on the aforesaid judgments and decrees to contend that it alone had exclusive / absolute right to perform poojas, Aaradhanas, in the Nava Brindavanas for the purpose of passing a decree for permanent injunction in its favour against the defendant.
27.7 The cumulative effect of the judgments and decrees passed in O.S.No.65/1 of 1959-60, R.A.No.46/1968, Order of this Court in W.P.No.18107/1987, the judgment and decree passed in O.S.74/2010 out of which the present appeal arises, additional evidence recorded by first appellate court pursuant to orders of the Apex Court and this Court as well as the findings recorded on pursuant thereto in R.A.No.123/2014 dated 23.04.2021 lead to the unmistakable / inescapable conclusion that the plaintiff - Mutt did not have exclusive / absolute right to perform the poojas, Aaradhanas in the Nava Brindavanas and consequently, a decree
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 for permanent injunction in relation to the suit schedule property which would have the effect of preventing the performance of Aaradhanas and poojas by the defendant - Mutt is clearly impermissible in law and on this ground also, the impugned judgment and decree passed by the first appellate court deserves to be set aside.
27.8 The plaintiff - Mutt has contended that in the light of the judgment passed in O.S.No.65/1 of 1959-60, which was confirmed in R.A.No.46/1968, the defence / claim of the defendant
- Mutt is barred by res judicata. As stated supra, the right of the defendant - Mutt to perform poojas, Aaradhanas etc., in the Nava Brindavanas and the issue/question as to whether the plaintiff -
Mutt had exclusive right to the same was neither heard nor finally decided by the trial court or the first appellate court in the said suit and appeal. On the other hand, the said issue / question regarding the right to perform poojas, Aaradhanas etc., was adverted to by the appellate court, which recorded a finding that the defendant -
Mutt and Sosale Vyasaraja Mutt were performing poojas, Aaradhanas etc., in the Nava Brindavanas; at any rate, the said issue / question regarding performance of poojas, Aaradhanas etc., in the Nava Brindavanas having not been finally decided in
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 the said litigations, the judgments and decrees passed in the same cannot be treated as operating as res judicata for the purpose of the present appeal and as such, this contention urged on behalf of the plaintiff - Mutt cannot be accepted.
27.9 The plaintiff - Mutt also contends that by virtue of the earlier litigations between itself and Sosale Vyasaraja Mutt commencing before the Survey authorities and culminating before this Court in W.P.No.18107/1987 dated 22.11.1989, the claim of the plaintiff - Mutt deserves to be upheld and the claim of the defendant - Mutt was liable to be rejected. The said contention is devoid of merit and cannot be accepted for more than one reason;
firstly, the defendant - Mutt was not a party to the said proceedings / orders and consequently, it cannot be said that the same were either binding upon the defendant or operates as res judicata against the defendant - Mutt; secondly, the issue / question involved in the said proceedings were in relation to a dispute regarding conducting of survey and fixing the measurement of Sy.No.192 as 27 acres 30 guntas as contented by the plaintiff-Mutt or whether the land measured only 14 acres 7 guntas as contended by Sosale Vyasaraja Mutt and issue / question regarding exclusivity in the right of performance of
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 poojas, Aaradhanas by the plaintiff-Mutt was not decided, much less finally decided by either the survey authorities or the Karnataka Appellate Tribunal or by this Court; thirdly, this Court expressly / specifically declared and clarified that the findings recorded by the authorities and this Court in its order dated 22.11.1989 passed in W.P.No.18017/1987 c/w W.P.No.2329/1982 should not be construed as affecting the religious rights claimed by either of the Mutts in the Nava Brindavanas.
27.10 Under these circumstances, it is clear that the said orders passed by the survey authorities, KAT and this Court are neither binding upon the defendant-Mutt nor operates as res judicata for the purpose of upholding the alleged exclusive and absolute right of the plaintiff - Mutt to perform Aaradhanas, Poojas in the Nava Brindavanas so as to prevent or restrain the defendant
- Mutt from performing the same and consequently, no reliance can be placed upon the said litigation and the orders passed in the same for the purpose of rejecting the claim of the defendant - Mutt and on this score also, I am of the view that the impugned judgment and decree passed by the first appellate court deserves to be set aside.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 27.11 The plaintiff - Mutt also contends that in addition to the aforesaid earlier litigations, there was one more suit in O.S.No.130/1978 filed by Uttaradhi Mutt against Sosale Vyasaraja Mutt which was decreed in favour of Uttaradhi Mutt vide judgment and decree dated 03.03.1989 and confirmed by the first appellate court in R.A.No.4/1990 as well as by this Court in R.S.A.No.14/1992 dated 09.04.1992 and the Apex Court in SLP No.15005/1992 dated 15.10.1993.
27.12 As stated earlier, the defendant - Mutt was not a party to the said proceedings and consequently, the same was not binding upon the defendant - Mutt nor would it operate as res judicata against the defendant - Mutt in relation to the suit schedule property. In this context, plaintiff - Mutt places reliance upon the Explanation(iv) to Section 11 CPC in order to contend that if the issue in the earlier suit / proceedings relates to a public right, the same would operate as res judicata insofar as non-
parties also. The said contention also cannot be accepted inasmuch as the right to perform poojas, Aaradhanas in the Nava Brindavanans are completely different, distinct, independent, separate and mutually exclusive from the right of title and possession over the suit schedule property claimed by the plaintiff
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NC: 2024:KHC:25169 RSA No. 100446 of 2015
- Mutt and so long as the right of the defendant - Mutt to perform poojas, Aaradhanas vis-a-viz, the claim to exclusive right to perform poojas, Aaradhanas was not decided or adjudicated upon and instead kept open in the earlier litigations / proceedings, any judgments, decrees, orders etc., to which either the defendant -
Mutt was a party or Sosale Vyasaraja Mutt was a party, cannot be construed or treated as either binding upon them or operate as res judicata for the purpose of the present appeal and consequently, even this contention of the plaintiff - Mutt cannot be accepted.
27.13 The aforesaid findings recorded by me in relation to the right to perform poojas, Aaradhanas etc., by the defendant -
Mutt not being decided in the earlier proceedings referred to supra is equally applicable to the order passed by this Court in M.S.A.No.70/1965 arising out of the aforesaid O.S.No.65/1 of 1959-60 and as such, no reliance can be placed upon the said order by the plaintiff - Mutt in support of its claim.
27.14 Learned Senior counsel for the plaintiff - Mutt placed reliance upon the judgment of the Apex Court in the case of Tirumala Tirupathi Devasthanams vs. K.M.Krishnaiah - (1998) 3 SCC 331, in order to contend that under Section 13 of the Evidence Act, even a judgment nor inter-parties is admissible in
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 evidence of assertion of a right to property in dispute and the earlier proceedings and orders passed in favour of the plaintiff -
Mutt against Sosale Vyasaraja Mutt was admissible and could be relied upon by the plaintiff - Mutt against the defendant - Mutt in relation to the very same suit schedule property. The relevant portion of the said judgment is as under:-
7. In view of the above contentions, the following three points arise for consideration:
(1) Whether the judgment in OS No. 51 of 1937 of the Sub-
Court, Chittoor dated 15-6-1942 declaring the title of the TTD, was admissible and could be relied upon by the TTD as evidence in the present case, even though the present plaintiff was not a party to OS No. 51 of 1937? (2) Whether it was open to the second appellate court to reappreciate the evidence and hold that the oral evidence adduced by the parties was not acceptable and that in view of the recitals in Ex. B-6 delivery receipt dated 12-1- 1946, the title of the TTD was to be deemed "extinguished", and whether this could be done when there was no such issue raised in the courts below? (3) Whether, in case we should hold on Point 2 that the second appellate court could not hold that the TTD's title stood extinguished, the decree for possession based on possessory title as granted by the second appellate court, could be sustained?
Point 1
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8. It was argued by the learned counsel for the plaintiff- respondent that the earlier judgment in OS No. 51 of 1937 dated 15-6-1942 was rendered in favour of the TTD against Hathiramji Mutt, that the plaintiff was not a party to that suit and hence any finding as to TTD's title given therein is not admissible as evidence against the present plaintiff in this suit.
9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishnarao Kango v. Narayan Devji Kango [AIR 1954 SC 379 : 57 Bom LR 678] speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter parties is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K. Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram [AIR 1954 SC 606] held that a previous judgment not inter partes, was admissible in evidence under Section 13 of the Evidence Act as a "transaction" in which a right to property was "asserted" and "recognised". In fact, much earlier, Lord Lindley held in the Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani [ILR (1902) 29 Cal 190 (PC)] (ILR at p. 198) that a previous judgment, not inter partes was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 declared entitled to retain them. The criticism of the judgment in Dinomoni v. Brojo Mohini [ILR (1902) 29 Cal 190 (PC)] and Ram Ranjan Chakerbati v. Ram Narain Singh [ILR (1895) 22 Cal 533 : 22 IA 60 (PC)] by Sir John Woodroffe in his Commentary on the Evidence Act (1931, p. 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram Sundar Mal [AIR 1934 PC 157 : 61 IA 286] .
10. For the aforesaid reasons, we reject the contention of the learned counsel for the respondent-plaintiff and hold that the TTD could rely on the judgment in OS No. 51 of 1937 as evidence to prove its title in regard to the suit property, even though the present plaintiff was not a party to that suit. Point 1 is held accordingly against the respondent.
27.15 Per contra, the learned Senior counsel for the appellant / defendant - Mutt placed reliance upon a Three Judge Bench Judgment of the Apex Court in the case of State of Bihar vs. Radha Krishna Singh and others - AIR 1983 SC 684., wherein it is held as under:-
123. Taking the first head, it is well settled that judgments of courts are admissible in evidence under the provisions of Sections 40, 41 and 42 of the Evidence Act. Section 43, which is extracted below, clearly provides that those judgments which do not fall within the four corners of Sections 40 to 42 are inadmissible
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 unless the existence of such judgment, order or decree is itself a fact in issue or a relevant fact under some other provisions of the Evidence Act:
"43. Judgments, etc., other than those mentioned in Sections 40 to 42, when relevant.--Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act."
124. Some courts have used Section 13 to prove the admissibility of a judgment as coming under the provisions of Section 43, referred to above. We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the court to call into aid other general provisions in order to make a particular document admissible. In other words, if a judgment is not admissible as not falling within the ambit of Sections 40 to 42, it must fulfil the conditions of Section 43 otherwise it cannot be relevant under Section 13 of the Evidence Act. The words "other provisions of this Act" cannot cover Section 13 because this section does not deal with judgments at all.
126. It is now settled law that judgments not inter partes are inadmissible in evidence barring exceptional cases which we shall point out hereafter. In John Cokrane v. Hurrosoondurri Debia [(1854-57) 6 MIA 494 :
4 WR PC 103] Lord Justice Bruce while dealing with the question of admissibility of a judgment observed as follows:
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 "With regard to the judgment of the Supreme Court, it is plain, that considering the parties to the suit in which that judgment was given, it is not evidence in the present case,.... We must recollect, however, not only that that suit had a different object from the present, independently of the difference of parties, but that the evidence here is beyond, and is different from, that which was before the Supreme Court upon the occasion of delivering that judgment."
27.16 The judgment of the Apex Court in TTD's case supra, is clearly distinguishable on facts inasmuch as the issue / question as regards the exclusive / absolute right of the plaintiff -
Mutt to perform poojas, Aaradhanas in the Nava Brindavanas was neither adjudicated nor declared in its favour in the earlier proceedings between the plaintiff - Mutt and Sosale Vyasaraja Mutt; on the other hand, the said issue / question was expressly / left open by this Court in W.P.No.18107/1987 referred to supra; it follows therefrom that the said order / judgments passed in litigations between the plaintiff - Mutt and Sosale Vyasaraja Mutt cannot be construed or treated as a judgment in rem as contemplated under Section 41 or Section 13 of the Evidence Act and the judgment of the Apex Court in TTD's case supra, would not be applicable to the facts of the instant case; on the other hand, the ratio of the judgment of the Apex Court in Radha Krishna Singh's case supra, would apply to the facts of the present case
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 and consequently, even this contention urged on behalf of the plaintiff - Mutt cannot be accepted.
27.17 A perusal of the material on record will indicate that according to the plaintiff - Mutt, it is the owner of the entire island purchased from one Sri.Peshkar Krishna Rao which was originally 100 acres and due to aluvion and deluvion, the extent of land comprised of in the island keeps fluctuating and changing and the total extent of the entire island was about 27 acres 30 guntas as per the survey conducted in 1973-74 in this regard, was upheld by this Court. It was also contended that the title and possession of the plaintiff - Mutt to the entire extent of the island which was visible in an extent of 27 acres 30 guntas in 1974 vested with the plaintiff's -
Mutt and the question / issue as to whether the Nava Brindavanas are situated within 14 acres 7 guntas or outside 14 acres 7 guntas is neither relevant nor material for adjudication of the present appeal. It was also contended that the Nava Brindavanas are situated within 14 acres 7 guntas, which fact was upheld by this Court in W.P.No.18017/1987 and the first appellate court was not fully justified in passing the impugned judgment and decree allowing the appeal filed by the plaintiff - Mutt.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 27.18 Per contra, the defendant - Mutt contends that though the plaintiff - Mutt claimed to have purchased the entire extent of land measuring 100 acres vide sale deed dated 23.03.1916, the entire extent stood forfeited and vested in the Nizam Government, subsequent to which, the Uttaradhi Mutt filed an application marked as Ex.D343 (English Translation D343a) seeking restoration / re-grant only to an extent of 14 acres 7 guntas for the purpose of ingress and egress to the Nava Brindavanas. It was also contended that in pursuance of the same, only 14 acres 7 guntas was restored / re-granted in favour of the plaintiff - Mutt for the purpose of ingress and egress and performance of poojas, Aaradhanas in the Nava Brindavanas. It was contended that these two documents establish that extent of land re-granted / restored in favour of the plaintiff - Mutt was only 14 acres 7 guntas and the Nava Brindavanans are situated outside the said extent of 14 acres 7 guntas and the plaintiff - Mutt could not claim any right beyond the said extent of 14 acres 7 guntas and consequently, the present suit for permanent injunction in relation to a larger extent of 27 acres 30 guntas was liable to be dismissed.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 27.19 On the other hand, this contention of the defendant -
Mutt is refuted by the plaintiff - Mutt who contends that the said question / issue regarding forfeiture and re-grant and the extent forfeiture, re-grant etc., has already been adjudicated in favour of plaintiff - Mutt in the earlier round of litigation not only between the plaintiff - Mutt and Sosale Vyasaraja Mutt but also in O.S.No.65/1 of 1959-60 and it was impermissible to reopen the same in the present appeal.
27.20 Before adverting to the rival contentions in this regard, it would be necessary to notice that during the pendency of the appeal before the first appellate court, the defendant - Mutt preferred W.P.No.111125/2014 challenging the orders of the Assistant Superintendent of Land Records dated 18.04.1974 and Superintendent of Land Records dated 07.09.1974 and for declaration that Sy.No.192 was limited only to 14 acres 7 guntas.
The said writ petition has been opposed by the plaintiff -Mutt (respondent No.5 in the said writ petition), who contended that the orders impugned therein were not only confirmed by the Joint Director of land records on 05.11.1976 and the KAT, Bangalore, on 18.07.1981 but also by this Court in W.P.No.18017/1987. In this context, it is significant to note that the State
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Government(respondents 1 to 4 in the said W.P.No.111125/2014) has filed its statement of objections fully supporting the claim of the defendant-Mutt and disputing/denying the claim of the plaintiff-Mutt;
in addition thereto, in the said W.P.No.111125/2014, this Court vide order dated 08.04.2015 issued directions to the State Government to furnish clarifications, pursuant to which, the Principal Secretary filed an Affidavit dated 27.06.2015 fully supporting the claim of the defendant-Mutt and disputing/denying the claim of the plaintiff-Mutt.
It is also significant to note that pursuant to the orders of this Court and the Apex Court referred to supra, the first appellate court recorded the evidence of the parties and submitted its findings vide order dated 23.04.2021 upholding the claim of the defendant - Mutt and rejecting the claim of the plaintiff - Mutt. It is therefore clear that there is serious cloud/doubt regarding the issue/question relating to the title, possession, measurements, extent, location, boundaries etc., of land in Sy.No.192 claimed by the plaintiff-Mutt as 27 Acres 30 Guntas and also the question/issue as to whether the Navabrindavanas are situated within 14 Acres 7 Guntas as claimed by the plaintiff-Mutt or outside 14 Acres 7 Guntas as contended by the defendant-Mutt and these issues/questions are beyond the scope of adjudication of the present suit which is one
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 for bare/permanent injunction simpliciter and not one for declaration and/or comprehensive relief's.
27.21 In my considered opinion, the aforesaid subsequent events viz., W.P.No.111125/2014 preferred by the defendant -
Mutt, the directions issued by this Court in the said writ petition to the State Government, the Affidavit filed by the Principal Secretary supporting the claim of the defendant - Mutt and denying the claim of the plaintiff - Mutt and the findings recorded on the additional evidence by the first appellate court vide order dated 23.04.2021 and other material on record would have a direct and substantial impact and bearing upon the question/issue regarding the measurements, extent, location, boundaries of land in Sy.No.192; in fact, during the course of hearing, both sides jointly submitted that the extent of land comprised of in the island as on date which was visible is only about 20-21 acres and the Nava Brindavanas are situated only in an extent of about 20 guntas. Further, by order dated 03.07.2024, the aforesaid W.P.No.111125/2014 has been disposed of by this Court as hereunder:
ORDER
(i) Petition is hereby disposed of.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015
(ii) The respondents 1 to 4-State and the concerned officials of the Survey Department and Revenue department shall co-ordinate with one another and conduct a joint survey in conjunction with each other of land bearing Sy.No.192 of Anegundi village, Gangavathi taluk, Koppal District, after duly notifying the petitioner, the 5th respondent as well as all other interested persons / stake holders and in the presence of all the parties and obtain/procure a report, pursuant to which, the concerned respondents shall proceed to effect changes in the survey records and revenue records in relation to the subject property bearing Sy.No.192 of Anegundi village including its measurements, extent, location, boundaries etc., after providing sufficient and reasonable opportunity to all parties and in accordance with law.
(iii) All rival contentions between the parties are kept open and no opinion is expressed on the same.
27.22 The cumulative effect of the aforesaid facts and circumstances and the aforesaid earlier proceedings, judgments, decrees, orders etc., as well the subsequent events referred to supra is sufficient to come to the conclusion no decree for permanent injunction can be passed in favour of the plaintiff-Mutt which would restrain the defendant-Mutt from performing Poojas,
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Aradhanas in the Navabrindavanas and on this ground also, the suit of the plaintiff-Mutt is liable to be dismissed.
27.23 A perusal of the material on record will also indicate that in the present suit for bare / permanent injunction simpliciter, the question / issue regarding the exact extent of land in Sy.No.192, forfeiture, restitution/ restoration etc., was incapable of being decided or adjudicated upon by either the trial court or the first appellate court; coupled with this, several subsequent events, proceedings, orders have occurred / transpired during the pendency of the present appeal referred to supra; as stated earlier, in the light of the findings recorded by me hereinbefore that the title and possession of the plaintiff - Mutt over the suit schedule property is completely and totally different and distinct from the right of the defendant - Mutt to perform poojas, Aaradhanas in the Nava Brindavanas vis-a-vis the exclusive right of such performance claimed by the plaintiff - Mutt as well as the aforesaid subsequent events, proceedings, orders etc., and also the nature and scope of the present suit for bare / permanent injunction simpliciter, I am of the considered opinion that the question of adjudication upon the extent of land in Sy.No.192, forfeiture, restitution / restoration etc., would necessarily have to be left / kept open to be decided in a
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 comprehensive suit filed by any of the parties, particularly when W.P.No.111125/2014 has been disposed of directing conducting of fresh / new survey of land bearing Sy.No.192 of Anegundi village.
Under these circumstances, I am of the considered opinion that the contention of the plaintiff - Mutt that it was entitled to a decree for permanent injunction as upheld by the first appellate court cannot be accepted and for the foregoing reason also, the impugned judgment and decree passed by the first appellate court deserves to be set aside.
27.24 The aforesaid facts and circumstances are sufficient to come to the conclusion that the first appellate court clearly erred in setting aside the judgment and decree by the trial court by partly allowing the appeal and by partly decreeing the suit of the plaintiff -
Mutt warranting interference by this Court in the present Second Appeal which deserves to be allowed, especially in the light of the various subsequent events referred to supra which have transpired / occurred during the pendency of the present appeal and in particular, the findings recorded by the first appellate court on the additional evidence vide order dated 23.04.2021, as a result of which, the impugned judgment and decree passed by the first appellate court deserves to be set aside.
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 Accordingly, substantial questions of law (ii) to (iv) formulated by this Court are answered in favour of the appellant - Mutt and against the respondent - Mutt.
Re-Substantial question of law No.(i):-
28. While dealing with substantial questions of law (ii) to
(iv), I have already come to the conclusion that the first appellate court committed a grave and serious error of law in recording findings based on no evidence and irrelevant considerations by ignoring relevant evidence and by recording findings contrary to law and in the light of the material on record obtaining in the instant case, comprising of subsequent events, proceedings, orders etc., the impugned judgment and decree passed by the first appellate court deserves to be set aside. Under these circumstances, I am of the view that the first appellate court has recorded findings based on surmises and conjectures without taking into consideration relevant material warranting interference in the present appeal.
28.1 Insofar as the various other judgments relied upon by both sides are concerned, the said judgments were rendered in the factual matrix obtaining in the said cases and consequently,
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NC: 2024:KHC:25169 RSA No. 100446 of 2015 the same are not applicable to the facts of the present case and as such, the same are not dealt with in detail in the present judgment.
Accordingly, substantial question of law (i) is also answered in favour of the appellant and against the respondent.
29. In the result, I pass the following:-
ORDER
(i) RSA No.100446/2015 is hereby allowed.
(ii) The impugned judgment and decree dated 22.04.2015 passed in R.A.No.123/2014 by the First Appellate Court is hereby set aside.
(iii) The judgment and decree dated 18.06.2011 passed in O.S.No.74/2010 by the trial court is hereby restored.
(iv) The said suit in O.S.no.74/2010 filed by the respondent
- plaintiff Mutt against the defendant-Mutt stands dismissed.
Sd/-
JUDGE Srl.