Karnataka High Court
Sri Jagathguru Sri Neelakanta Saranga ... vs S P Velayutham on 22 May, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
M.F.A.No.7038/2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MAY 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
MISCELLANEOUS FIRST APPEAL NO.7038/2021(LAC)
BETWEEN:
SRI JAGATHGURU SRI NEELAKANTA
SARANGA DESI KENDRA MAHASWAMIGALU
RAMALINGESHWARA MATT
PEETADIPATIGALU
HARANAHALLI, HONALLI TALUK
SHIVAMOGGA DISTRICT ...APPELLANT
(BY SRI.A.G.SHIVANNA, SENIOR COUNSEL FOR
SRI.M.N.SRIKANTH, ADVOCATE)
AND:
1. S P VELAYUTHAM
S/O LATE SABHAPATI
AGED ABOUT 64 YEARS
R/AT NO.5, SABARI STREET
MADIPAKKAM
CHENNAI - 600 091
2. YASHVIR GOYEL
S/O LATE G D GOYEL
AGED ABOUT 76 YEARS
R/AT NO.202/41
SANKEY ROAD
SADASHIVA NAGAR
BENGALURU - 560 080
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M.F.A.No.7038/2021
3. SRI SRI SRI RAMALINGESHWARA SWAMY
SARVAADIKARIGALU
SRI SRI SRI SADGURU
RAMALINGESHWARA MAHASWAMIGALU
KANIVE BILACHI
CHENNAGIRI TALUK
4. SRI SHIVAYOGISWARA
SHIVAACHARYA MAHASWAMIGALU
SRI RAMALINGESHWARA MUTT
HARANAHALLI, SHIMOGA TALUK
SRI H R VISHWANATH, SECRETARY
SRI RAMALINGESHWARA MUTT
HARANAHALLI, SHIMOGA TALUK
(DELETED VIDE ORDER DATED 19.07.2019)
5. SRI SHA BRA CHANDRAMOULISWARA
SHIVACHARYA SWAMIGALU
MATADHIPATI
SRI RAMALINGESHWARA MUTT
HARANAHALLI, SHIMOGA DISTRICT
6. SRI G R GURUMUTT, SARVADHIKARI
SRI RAMALINGESHWARA MUTT
HARANAHALLI, SHIMOGA TALUK
7. SRI MADHUMANAND SWAMIJI
KARYADHYAKSHARU
SRI RAMALINGESHWARA MUTT
HARANAHALLI, SHIMOGA TALUK
8. SRI JNANAPRAKASH GOYAL
MR GOYAL ESTATE
NARANG CHAMBERS, N R ROAD
BENGALURU
9. SRI SRI SRI MALLIKARJUNA
SHIVACHARYA MAHASWAMIGALU
MATHADIPATHI AND SARVADHIKARI
OF SRI RAMALINGESHWARA MUTT
HARANAHALLI, HARANAHALLI HOBLI
SHIMOGA TALUK AND DISTRICT
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M.F.A.No.7038/2021
10 . SRI SHA BRA VISHWARADYA
SHIVACHARYA SWAMIGALU
AGED 42 YEARS
MATADHIPATI
OF SRI RAMLINGESHWARA MUTT
HARANAHALLI
SHIMOGA TALUK AND DISTRICT
11 . SPECIAL LAND ACQUISITION OFFICER
KIADB (METRO RAILWAY PROJECT)
NRUPATHUNGA ROAD
BENGALURU
12 . GENERAL MANAGER (LA AND E)
BMRCL SHANTHINAGAR
BENGALURU ...RESPONDENTS
(BY SRI.RAVI B NAIK, SENIOR COUNSEL FOR
SRI.M.J.ALVA, ADVOCATE FOR R1 & R2;
R3 IS SERVED;
SRI.H.H.KALADGI, ADVOCATE FOR R4;
V/O DTD: 28.02.2022 APPEAL STANDS ABATED AGAINST R5;
SRI.J.M.UMESHA MURTHY, ADVOCATE FOR R6;
SRI.H.M.GIRISHA, ADVOCATE FOR R7 & R8;
R9 IS SERVED;
SRI.ARUN A GADAG, ADVOCATE FOR R10;
SRI.P.V.CHANDRASHEKAR, ADVOCATE FOR R11;
SRI.K.KRISHNA, ADVOCATE FOR R12)
THIS MFA IS FILED U/S 54(1) OF LAND ACQUISITION ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
04.09.2021 PASSED IN LAC.NO.51/2014 ON THE FILE OF THE II
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(C.C.H.NO. 17), PARTLY ALLOWING THE REFERENCE PETITION
FILED UNDER SECTION 30 AND 31(2) OF THE LAND ACQUISITION
ACT.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD
AND RESERVED ON 21.04.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, K.S.MUDAGAL J.,
DELIVERED THE FOLLOWING:
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M.F.A.No.7038/2021
JUDGMENT
Challenging the rejection of his claim petition under Sections 30 & 31(2) of Land Acquisition Act 1894 (for short 'the Act') claimant No.4 in LAC No.51/2014 on the file of II Addl. City Civil and Sessions Judge, Bengaluru (CCH No.17) has preferred the above appeal.
2. Appellant was claimant No.4, respondents 1 to 3 were claimants 1 to 3, respondent Nos.4 to 10 were claimant Nos.5 to 12 and respondent Nos.11 and 12 were respondents No.1 and 2 in LAC No.51/2014 before the Reference Court. For the purpose of convenience the parties will be referred to henceforth according to their ranks before the Reference Court.
3. The brief facts of the case are as follows:
i) Under the notification dated 29.09.2009 respondent No.1 acquired along with several other lands, the land bearing Sy.No.12 of Nagasandra village in all measuring 8 acres 26 guntas for the purpose of Bengaluru Metro Rail Project (for short 'BMRP'). The final notification was issued on 5 M.F.A.No.7038/2021 11.03.2010 showing the name of Pavan Kumar Singhal @ Agarwal the vendor of claimant No.1. The said notification so far it related to claimant No.1 was set aside by the order of this Court in W.P.No.27682/2010 (LA RES) and W.A.No.15215/2011 (LA RES) dated 25.11.2011 on the undertaking of respondent No.2 that fresh preliminary notification will be issued within four weeks showing the name of claimant No.1. Accordingly the amended notification was issued 30.04.2013.
ii) Possession of the land was taken by the first respondent on 25.11.2010 and transferred to BMRP. The first respondent passed the award on 22.04.2014 in respect of the aforesaid land granting compensation of Rs.30,04,74,464/-. Since Claimant Nos.1 to 12 each claimed entitlement to receive the compensation amount, respondent No.1 deposited the said amount before the Reference Court. Then respondent No.1 acting under Section 30 and 31 (2) of the Act, referred the matter to the Reference Court for adjudication of the entitlement of the rival claimants to receive the compensation 6 M.F.A.No.7038/2021 amount. Reference Court registered the same in LAC No.51/2014.
iii) On receipt of the notice from the Reference Court rival claimants appeared before the said Court. On the memo of claimant No.6 dated 19.07.2019 for deletion of his name on the ground that he has no claim in the matter, his name was deleted from the case accordingly. Before the Reference Court claimant Nos.1, 2, 4, 5, 7 and 12 alone filed their claim statements. Claimant Nos.3, 8 to 10 did not file any claim statement.
4. The case of Claimant Nos.1 and 2 is as follows:
i) That the land bearing Sy.No.12 in all measuring 8 acres 26 guntas belonged to one Smt.Goolabai, W/o Madhavdas Desai who acquired the same under the registered sale deed dated 15.02.1922 (Ex.P42). She in turn sold the same to Prabhakar L.Kirloskar under the registered sale deed dated 26.02.1940 (Ex.P2). He sold the same to Badridas Kasturchand Daga and Ramanath Kasturchand Daga under the registered sale deed dated 06.12.1956 (Ex.P3). Badridas 7 M.F.A.No.7038/2021 Kasturchand Daga under the WILL dated 16.09.1962 bequeathed the said property to Chandabai Badridas Kasturchand Daga, Seth Ramanath Kasturchand Daga and Shankarlal Ramnath Daga. Seth Ramanath Kasturchand Daga executed the WILL and appointed his sons Seth Shankarlal Ramanath Daga and Shivalal Ramnath Daga as the executors.
ii) Chandabai Badridas Kasturchand Daga, Seth Shankarlal Ramnath Daga and Shivalal Ramnath Daga sold 4 acres 26 guntas out of 8 acres 26 guntas in Sy.No.12 to Paramanand Sharma under the registered sale deed dated 24.09.1981 (Ex.P43). Paramanand Sharma in turn under the WILL dated 18.03.1993 (Ex.P44) bequeathed the said property to claimant No.2/Yashvir Goel. On the application of claimant No.2/Yashvir Goel the City Civil Judge Bengalure in P & SC No.28/1998 by the order dated 25.10.1999 (Ex.P45) issued the probate of WILL dated 18.03.1993 in favour of claimant No.2.
iii) Chandabai Badridas Kasturchand Daga, Seth Shankarlal Ramnath Daga and Shivalal Ramnath Daga sold remaining 4 acres of land in Sy.No.12 to Pavan Kumar, S/o 8 M.F.A.No.7038/2021 Jagadish Chander Singhal under the registered sale deed dated 12.10.1981 (Ex.P4). Pavan Kumar in turn sold the said 4 acres of land to claimant No.1 under the registered sale deed dated 25.09.2006 (Ex.P1). Claimant Nos.1 and 2 were put in possession of the property sold to them respectively by their vendors. Thus they were the absolute owners of the property purchased by them and are entitled to receive the compensation. The other claimants though have no interest in the property with malafide intention filed several cases unsuccessfully and setting up false claim. Therefore, they requested to reject the claims of the other claimants.
5. The claim of claimant Nos.4, 5, 7, 11 and 12 were almost the same. They claimed that they are the mathadhipati/peethadhipati/sarvadhikari/Secretary of one Ramalingeshwar math of Haranahalli, Shimoga taluk. They contended that the king of Keladi dynasty who was ruling southern Karnataka had endowed several lands in Karnataka for maintenance of Ramalingeshwar math. Similarly the lands bearing Sy.Nos.12 to 15 and 18 of Nagasandra village were 9 M.F.A.No.7038/2021 endowed in favour of the mutt for maintenance of two choultries situated in the same village. As the then heads of the mutt were not able to manage the properties situated in Bengaluru they handed over the management of those lands to the Government under the order No.28/1880-1881 dated 10.09.1880 No.25-55/1911 dated 15.12.1911 with the condition that the Government shall return the lands to the mutt as and when required. In course of time some people illegally got the khatha of the said lands in their names and alienated them to several persons. Such alienations do not bind those claimants.
6. Claimants No.4, 5, 7 11 and 12 claimed that each of them alone are the true mathadhipati/peethadhipati/sarvadhikari/Secretary and the others including claimant No.6, 8 and 9 are the fake mathadhipati/peethadhipati/sarvadhikari/Secretary. Thus they claimed that they are entitled to receive the compensation. In addition to the above, claimant No.4 contended that in O.S.No.227/2012 he is declared to be the 10 M.F.A.No.7038/2021 mathadhipati. Therefore, he alone is entitled to the compensation.
7. Though claimant Nos.1, 2, 4, 5, 7, 11 and 12 filed the claim statements, out of them only claimant Nos.1,2,4,5 and 11 adduced evidence and they were examined and got marked the documents in the below mentioned order.
Rank Witness Exhibits
Number
Claimant No.1 PW.1 Ex.P1 to P42
Claimant No.2 P.W.2 Ex.P43 to 47
Claimant No.5 PW.3 Ex.P48 to 55
Claimant No.4 PW.4 Ex.P56 to 61
Claimant No.11 PW.5 Ex. P62 to 66 and 66A
8. Vishwaradhya Swamy is claimant No.12 initially filed an application under order 22 Rule 4 CPC claiming that since claimant No.7 is dead, he shall be brought on record as the legal representative of claimant No.7. But the person calling himself to be claimant No.7 resisted the said application claiming that he is alive and on the basis of fake death 11 M.F.A.No.7038/2021 certificate, the applicant is claiming as Legal Representative. In the enquiry conducted on the said application the said applicant was examined as DW.1 and on his behalf Ex.D1 to D18 were marked.
9. The Reference Court by order dated 02.11.2019 disposed of the said application permitting the said applicant to come on record as claimant No.12 instead of legal representative of claimant No.7. During the enquiry on the main matter, claimant No.12 did not adduce any evidence, but sought to adopt the evidence adduced by him on his application under Order 22 Rule 4 CPC as the evidence on the main matter.
10. Claimant No.6 and 10 withdrew their claims. The reference Court on hearing the parties by the impugned order allowed the claim petitions of claimant Nos.1 and 2 alone and rejected the claim petitions of other claimants. The Reference Court relying on the documents produced by claimant Nos.1 and 2 more particularly Exs.P30 to P32 held that there was already finding of the competent Court that Ramalingeshwar 12 M.F.A.No.7038/2021 mutt does not exist and that claimant Nos.3 to 9, 11 and 12 have failed to prove their claims.
11. Challenging the impugned order claimant No.4 has preferred the above appeal. Claimant Nos.7 and 12 preferred MFA Nos.4436/2021 (LAC) and 5930/2021(LAC). All the three appeals were consolidated and were taken up together. In MFA No.5930/2021 claimant No.12 did not pay the Court fee despite granting several opportunities. Therefore, the said appeal came to be dismissed on 16.02.2023.
12. In MFA No.4436/2021 counsel for claimant No.7 after arguing the matter for some time, sought withdrawal of the said appeal. On the requisition of this Court the Superintendent of Shimoga submitted the report to the effect that claimant No.7 died on 28.09.2014 itself and impersonating him the proceedings before the Reference Court and MFA No.4436/2021 were being conducted. This Court also noticed that charge sheet was filed against the said appellant and his counsel for impersonation, forgery and 13 M.F.A.No.7038/2021 cheating and on taking cognizance matter was pending before the Magistrate's Court in C.C.No.1873/2020.
13. Considering the request for withdrawal of the appeal and seriousness of the matter by order dated 16.02.2023 said appeal was dismissed as withdrawn and the matter was referred to the State Bar council for enquiry. The other claimants viz., 3, 5, 6, 8 to 11 did not prefer any appeal. Thereby, the findings of the reference Court against claimant No.3, 5 to 12 attained finality. Therefore in this appeal what remains for consideration is the claim of claimant No.4 alone.
14. Sri A.G.Shivanna, learned senior counsel appearing for Sri M.N.Srikant, advocate on record for the appellant addressed his arguments. IA No.2/2023 filed by appellant/claimant No.4 under order XLI Rule 27 read with Section 151 CPC to produce 8 documents by way of additional evidence was placed before this Court at that stage. Claimant Nos.1 and 2 filed their counter to the said application and opposed the same.
14M.F.A.No.7038/2021
15. Sri Ravi B.Naik, learned senior counsel for Sri M.J.Alva, Advocate on record for respondent Nos.1 and 2 addressed his arguments. The other respondents did not address their arguments. Despite granting sufficient opportunities reply arguments were not addressed by the counsel for the appellant. Ultimately the matter was reserved for judgment.
16. Sri A.G.Shivanna, learned senior counsel reiterating the grounds of appeal submitted that as claimant No.4 was not a party to O.S.Nos.84/1970 & 5300/1980, the property involved in LAC No.83/2012 was unconnected to the present case, the reference Court was in error in holding that those judgments bind claimant No.4. He further submits that in O.S.No.227/2012 the Court of competent jurisdiction declared claimant No.4 as mathadhipati, peethadhipati, uttaradhikari and Sarvadhikari of Ramalingeshwar mutt. The reference Court committed perversity in rejecting the claim of claimant No.4 over looking such judgment. He further submits that in O.S.No.1923/1975 the I Addl. First Munsiff, 15 M.F.A.No.7038/2021 Bengaluru on full fledged trial held that Ramlingeshwar mutt is in possession of land bearing Sy.No.18. However by inadvertence the said document and the other material documents were not produced before the Reference Court. Therefore, IA No.2/2023 is filed to adduce additional evidence and the documents produced along with IA No.2/2023 are the copies of the public documents and required for complete adjudication of the matter to meet the ends of justice. Therefore he submitted that the same may be allowed and the matter may be remanded to reference Court for fresh consideration on recording such further evidence.
17. Sri Ravi B.Naik, learned senior counsel for the advocate on record for respondent/claimant Nos.1 and 2 submits that as long back as on 11.04.1974 the I Addl. Civil Judge, Bengaluru dismissed O.S.No.84/1970 filed by the mutt for possession of the properties situated at Bengaluru, Shimoga and Tumkur holding that the said mutt is not in existence and the documents produced by the plaintiff therein were spurious one. The said plaintiff inexhaustibly filed O.S.No.5300/1980 for permanent injunction on the same 16 M.F.A.No.7038/2021 ground and lost that case also. The claim petition of present claimant No.4 made in LAC No.83/2012 in respect of Sy.No.11 on the same grounds was rejected with the same findings. In O.S.No.5333/2013 (Ex.P39 and 41) filed by claimant No.6 H.R.Vishwanath for permanent injunction restraining present respondent Nos.1 and 2 from disbursing the compensation amount to the other defendants therein, he withdrew his claim against present claimant No.1. The evidence on record clearly shows that claimant Nos.3 to 9, 11 and 12 are indulging in vexatious litigations before various forums only to harass claimant Nos.1 and 2 and their predecessors in title. Claimant Nos.1 and 2 were not party to O.S.No.227/2012, therefore the said judgment does not bind claimant Nos.1 and 2. The reference Court on judicious appreciation of evidence on record has rightly rejected the claim petitions of other claimants. IA No.2/2023 does not satisfy any of the requirements of Order XLI Rule 27 of CPC and is an outcome of procrastination to harass claimant Nos.1 and 2. Hence, he seeks dismissal of the appeal and IA No.2/2023 with heavy costs.
17M.F.A.No.7038/2021
18. On careful consideration of submissions of both side and the material on record the questions that arise for consideration are:
i) Whether the impugned judgment and order of the Reference Court allowing the claim petitions of claimant Nos.1 and 2 alone suffer any illegality or perversity ?
ii) Whether IA No.2/2023 for adducing additional evidence deserves to be allowed ?
ANALYSIS Reg. Point Nos. 1 and 2
19. Sy.No.12 measuring 8 acres 26 guntas was one of the lands acquired for the purpose of BMRP. There is no dispute that initially in the preliminary notification dated 29.09.2009 and final notification dated 11.03.2010 the name of claimant No.1 was not shown as the land owner. Ex.P26 and P27 the certified copies of the orders of this Court dated 25.11.2011 in W.P.No.27682/2010 (LA RES) and W.A.No.15215/2011 (LA RES) show that on the concession of the Special Land Acquisition Officer this Court quashed the 18 M.F.A.No.7038/2021 final notification so far as claimant No.1 herein. Then the notification including his name was issued. On passing the award, since several claimants claimed interest in the property and consequently the award amount, the matter was referred to the reference Court under Section 30 and 31(2) of the Act. 20. Claimant Nos.1 and 2 claimed ownership of 4 acres and 4 acres 26 guntas respectively in Sy.No.12. Claimant No.1 as already narrated laid claim to the acquired property on the basis of the sale deed dated 25.09.2006 (Ex.P1). Claimant No.2 laid claim to the property on the basis of the WILL dated 18.03.1993 and the probate order dated 25.10.1999 (Ex.P.45). Both of them traced the source of title of their predecessors to the property under the sale deed dated 01.02.1922 (Ex.P42) executed by one Thiruvengadaswamy Mudaliar for himself and his minor sons in favour of Madhavdas Vithaldas Desai.
21. As against such claim of claimant Nos.1 and 2, claimant Nos.3 to 9, 11 and 12 contended that Sy.No.12 and other lands in Bengaluru were endowed by Keladi Rulers in 19 M.F.A.No.7038/2021 1480 A.D in favour of Ramalingeshwar mutt, Haranahalli, Shimoga Taluk. In turn the mutt had handed over those properties to the Government in 1880 with the condition of returning the same whenever required by the mutt. It was also contended that in course of time several persons illegally changing the khata of the property in their names have sold the same and therefore such sales are illegal and do not bind them. Each of them claimed that they alone were the legally anointed mathadhipati/peethadhipati/sarvadhikari/Secretary and therefore entitled to receive the compensation amount.
22. The burden of proving their respective cases was on claimant No.1,2, 4,5,7,11 and 12. As already pointed out, except claimant Nos.1, 2, 4, 5, 7, 11 and 12 the other claimants did not lead evidence. Except claimant No.4, 7 and 12 other claimants did not file any appeal challenging the Reference Court's order. In view of dismissal of the appeals of claimant No.7 and 12 as aforesaid, the judgment of the reference Court has attained finality against other claimants except of claimant No.4.
20M.F.A.No.7038/2021
23. Under the aforesaid circumstances, only the claims of claimant No.1, 2 and 4 have to be re-appreciated in this appeal. To substantiate their case, claimants/PWs No.1 and 2 deposed before the Court according to their case in their claim petitions and relied on Ex.P1 to P47.
24. Ex.P42 is the certified copy of the sale deed dated 01.02.1922. The said document indicates that the lands bearing Sy No.12, 13, 14 and 15 measuring 8 acres 26 guntas, 10 acres 22 guntas, 14 acres 27 guntas and 9 acres 12 guntas respectively in all measuring 43 acres 7 guntas of Nagasandra village were sold by Thiruvengadaswamy S/o V.S.Velu Mudaliar and his two minor sons to Madhavdas Vithaldas Desai for a consideration of Rs.6,000/-. The document further indicates that the said properties were purchased by the paternal grand father of Thiruvengadaswamy in a sale conducted by the Sub-judge Bengaluru in Execution case No.864/1900-01. 21 M.F.A.No.7038/2021
25. Ex.P2 coupled with evidence of PWs.1 and 2 show that Goolab bai W/o Madhavdas Desai through her power of attorney sold the said properties to Prabhakar L.Kirloskar on 26.02.1940 and delivered possession to him. Ex.P3 the sale deed dated 06.12.1956 coupled with the evidence of PWs.1 and 2 show that Prabhakar Kirloskar sold the said properties to Badridas Kasturchand Daga and Ramnath Kasturchand Daga. Their evidence coupled with Ex.P4 and P43 the sale deeds dated 12.10.1981 and 24.09.1981 show that Badridas Kasturchand Daga under the will dated 16.09.1962 had bequeathed the said properties to Chandabai Badridas Kasturchand Daga, Seth Ramanath Kasturchand Daga and Shankarlal Ramanath Daga.
26. Ex.P43 the registered sale deed dated 24.09.1981 shows that Chandbai Badridas Kasturchand Daga, Shankarlal Ramanath Daga and Shivalal Ramanath Daga sold 4 acres 26 guntas out of 8 acres 26 guntas in Sy.No.12 to Paramanand Sharma. The evidence of PWs.1 and 2 coupled with Ex.P44 and 45 show that Paramanad Sharma under the will dated 22 M.F.A.No.7038/2021 18.03.1993 bequeathed the said property to claimant No.2/Yashvir Goel and in that regard in P & Sc No.28/1998 the City Civil Judge Bengaluru issued the probate dated 25.10.1999 as per Ex.P45 in respect of Ex.P44 the will dated 18.03.1993.
27. So far as claimant No.1, Ex.P4 the sale deed dated 12.10.1981 shows that Chandbai Badridas Kasturchand Daga, Shankarlal Ramanath Daga and Shivalal Ramanath Daga sold remaining 4 acres of land in Sy.No.12 to one Pavan Kumar S/o Jagadish chander Singhal. Ex.P1 the registered sale deed dated 12.10.1981 shows that Pavan Kumar in turn sold the said 4 acres of land to claimant No.1. The above documents coupled with the other documents produced by claimant Nos.1 & 2 show that the successive purchasers/legatees were put in possession of the properties acquired by them.
28. In the cross examination of PWs.1 and 2, the aforesaid documents were not disputed. But the contention of claimant No.4 was that the properties belonged to the mutt and the vendors/testator had no right to alienate/bequeath 23 M.F.A.No.7038/2021 those properties. It is material to note that Ex.P42, P2 and P3 were more than 30 years old documents and produced from proper custody. As per Section 90 of the Indian Evidence Act, 1872 there is a presumption with regard to the contents of those documents.
29. Apart from the aforesaid documents the oral evidence of PWs.1 and 2 coupled with Ex.P30, 31 and 32 the judgments dated 11.04.1974, 23.01.2002 and 10.06.2014 in O.S.Nos.84/1970, 5300/1980 and LAC 83/2012 show that in those cases the Courts held that the existence of Ramalingeshwar mutt itself was not proved. It was further held that the claim of Keladi rulers endowing the properties in Bengaluru to Mutt was also not established.
30. O.S.No.84/1970 was filed by the mutt represented by its Sarvadhikari K.M.Shivarudriah against State of Mysore, Commissioner of Survey and settlement, Divisional Commissioner and Deputy Commissioner, Bengaluru and Deputy Commissioner of Shimoga, Commissioner of City Corporation, Bengaluru, Chairman, City Improvement Trust 24 M.F.A.No.7038/2021 Board, Bengaluru and Land Acquisition Officer, CITB for possession on the same ground namely the lands were given to the mutt by Keladi rulers, mutt had handed over the same to the Government on the condition that the same shall be returned to the mutt whenever required etc which was denied by the defendants therein. In the judgment in that suit, the Court held that the plaintiff therein has produced spurious documents to advance his case and made certain sharp observations against the plaintiff therein.
31. O.S.No.84/1970 was dismissed on 11.04.1974. On 19.09.1975 the said Shivarudriah representing Mutt filed another suit in O.S.1923/1975 before I Munsiff, Bengaluru, against the Corporation of city of Bengaluru for permanent injunction in respect of land bearing Sy.No.18 measuring 20 guntas on the ground that the property was conveyed to him by one Gurunanjaswamy of Thippashettymutt. Ex.P31 the certified copy of the judgment in O.S.No.5300/1980 shows that on establishment of City Civil Courts at Bengaluru the said O.S.No.1923/1975 was transferred to City Civil Court and 25 M.F.A.No.7038/2021 renumbered as O.S.NO.5300/1980. Para 3 of the said judgment shows that in that suit on 23.03.1987 the name of K.Shivarudriah was substituted by name T.N.Srikantashastry. Again by order dated 11.06.1998 one Channaveera Shivacharya Swamy came to be added as mathadhipati of the plaintiff mutt. Again on 14.06.2000 on some interim application one Suresh Kallaiah Hiremath was added as the power of attorney holder of Channaveera Shivacharya swamy. While making such additions and substitutions it was alleged in the said suit that K.M.Shivarudriah ceased to be the mathadhipati and Srikantashastry had no authority to represent Mathadhipati. Ex.P31 further shows that the said suit was dismissed with costs making observation that the suit is vexatious one.
32. ExP32 the judgment in LACNo.83/2012 shows that 3435.26 sq meters of land in Sy.No.11 was acquired under the same notification for the same BMRP. There also claimant No.4 set up claim to the award amount on the same ground of Ramalingeshwar mutt being the owner and he being the 26 M.F.A.No.7038/2021 mathadhipati of the said mutt. In that case also rejecting his claim the Court held claimant No.1 therein M/s.Kennametal India Ltd is entitled to receive the award amount. Though claimant No.4 in his evidence claimed that he has preferred appeal against the judgment in Ex.P32 nothing was produced to establish the same. According to claimant Nos.1 and 2, claimant No.4 has not challenged that by filing any appeal. In the absence of any material to show that the said order in Ex.P32 was challenged, it has to be held that the said judgment has attained finality.
33. So far as Ex.P30 and 31, claimant No.4 did not dispute the genuineness of the said documents. But, it was contended that claimant No.4 was not a party to the said proceedings. Therefore, those judgments do not bind him. At one breath claimant No.4 contends that the judgments in O.S.No.84/1970 and 5300/1980 do not bind him since K.M.Shivarudriah was not Sarvadhikari of the mutt. At another breath he seeks to rely on the purported judgment in O.S.No.1923/1975 dated 29.03.1978 in which the same 27 M.F.A.No.7038/2021 Shivarudriah represented the mutt as Sarvadhikari. That goes to show that claimant No.4 changes his versions from time to time to suit his conveniences. Further the suits in Ex.P30 and 31 were filed by the mutt not in the individual capacity of K.M.Shivarudriah. Claimant No.4 claims through the same mutt. In such event if he wanted to avoid those judgments, he should have filed suits for the declaration that K.M.Shivarudriah had no authority to file the suit on behalf of the mutt and therefore, such judgments were null and void or do not bind the mutt. Neither claimant No.4 nor any rival claimants sought nullification of those judgments. Therefore, unless the judgments under Ex.P30 and 31 are set aside by the competent Court, they bind the mutt through which claimant No.4 sets up his claim.
34. Relying on Ex.P56 and 57 the judgment and decree in O.S.No.227/2012 claimant No.4 contended that in the said suit he was declared to be mathadhipati/Peethadhipati/uttaradhikari/sarvadhikari of Ramalingeshwar mutt, therefore he is entitled to receive the award amount. Claimant No.4 filed the said suit on 28 M.F.A.No.7038/2021 04.01.2012 against State of Karnataka department of Revenue (Muzarai) and the Commissioner, Hindu Religious and Charitable Endowment Commission. Those defendants did not even contest the suit.
35. Ex.P50 the judgment in W.P.No.9307/2005 (GM- R/C) c/w W.P.No.41918/2003 and W.P.No.11653/2005 dated 02.03.2009 shows that claimant No.4 was also a party in those cases and he was aware that there were rival claimants for the post of mathadhipati/peethadhipati/sarvadhikari. The perusal of the said judgment shows that present claimant Nos.5, 7 and Gnaneshwara Swamy also claimed to be the mathadhipati/peethadhipati/sarvadhikari of the said mutt. Similarly Ex.P61 the judgment of this Court WA No.3365/2005 (KLR-RR/SUR) dated 28.01.2008 shows that the said case was filed challenging the judgment in W.P.No.21904/2004 by claimant No.7 claiming to be the mathadhipati of the mutt against the Special Deputy Commissioner, Bengaluru urban Bengaluru, the predecessors in title of claimant Nos.1 and 2 and others. Claimant No.4 was the 20th respondent in that case. Present claimant No.5 was respondent No.11 and 29 M.F.A.No.7038/2021 Channaveera Shivacharya Swamy was respondent No.12 in the said case who set up rival claim for the post of mathadhipati/peethadhipati/sarvadhikari of mutt. In both those judgments the parties were directed to approach the Civil Court to establish their right of mathadhipati/peethadhipati/sarvadhikari.
36. Ex.P50 and 61 show that claimant No.4 was aware as long back as in the year 2004/2005 when the other parties to the aforesaid writ petition/writ appeal were setting up claim for the post of mathadhipati/peethadhipati/sarvadhikari. Despite that claimant No.4 filed O.S.No.227/2012 without making them as parties to the said suit. The perusal of Ex.P56 shows that on behalf of claimant No.4 only four documents were marked. That goes to show that he had suppressed Ex.P30, 31, 50 and 61 and filed that suit without impleading the necessary parties. By that time there was a finding in O.S.No.84/1970 that Ramalingeshwar Mutt does not exist and that was reaffirmed by the judgment in O.S.No.5300/1980. It is apparent that to circumvent the aforesaid earlier judgments and to snatch a judgment behind 30 M.F.A.No.7038/2021 back of the interested persons, O.S.No.227/2012 was filed against unconnected persons suppressing those earlier proceedings and the judgment and decree were obtained. Therefore the reference Court rightly accepted the contention of claimant Nos.1 and 2 that the said judgment does not bind them.
37. The perusal of the records show that claimant No.4 and other swamijis indulged in innumerable litigations invincibly before various Courts including this Court. To avoid long narration, only the suits and writ petitions arising out of civil suit, the judgments of which were marked in this case are set out in the table below:
Disposal Suit No. Prayer Between Result Ex.Nos.
Date
O.S.3873/2010
Prl. City Civil
Mutt reptd. by Dismissed
and Sessions P33 &
Possession Claimant No.7 Vs. 23.01.2023 as
Judge, P34
State withdrawn
Bangalore
O.S.26342/2010
Injunction Goyal Estate
Prl. City Civil Dismissed
against (Claimant No.10)
and Sessions 28.05.2013 as P35
disbursement of Vs. Pawankumar
Judge, withdrawn
compensation and others
Bangalore
Mutt reptd. By
O.S.26194/2009
Claimant No.5 Dismissed
City Civil Court, Declaration and
Vs. 11.09.2013 as P36
Bangalore injunction
Paramananda withdrawn
Sharma
31
M.F.A.No.7038/2021
Mutt reptd. By
O.S.6181/2012 Dismissed
Declaration and Claimant No.4 Vs. P37 &
City Civil Judge, 31.01.2014 as not
injunction State P38
Bangalore pressed
Got Deleted
O.S.5333/2013
Claimant
Prl. City Civil 24.01.2014/
Injunction for Mutt reptd. By No.1 and P39,
and Sessions 01.02.2014
disbursement of Claimant No.6 Vs. gave up P40 &
Judge, DNP on
compensation State claim P41
Bangalore 24.03.2015
against his
4 Acres
Sri.Channaveera
Shivacharya
Swamigalu Vs.
O.S.559/2001 Devaraj @
Prl. Civil Judge, Declaration and Shivayogi Devaru @ P48 &
21.04.2007 Dismissed
(Jr.Dn), possession Shivayogeshwara P49
Shivamogga Shivacharya
Mahaswamigalu
(claimant No.5)
Ramalingeswara
Mandatory
Educational and
injunction
Charitable Trust
directing Decreed in
(R)(claimant No.6
O.S.11122/1995 defendant and terms of
was plaintiff No.4) P51,
City Civil Judge, agents to Suit filed on the
Vs. P52 &
Mayo Hall Unit, disclaim Katha 17.11.1995 compromise
Chandramouleswara P53
Bangalore in No.59 petition on
Shivacharya
Malleshwaram 18.11.1995
Swamigalu
in name of
(claimant No.7)
Plaintiff No.6
H.Channappa &
others Vs.
O.S.17/1996 Sri.Shivalinga
Declaration and
Prl. Civil Judge Shivacharya Swamy P54 &
Permanent 19.06.2008 Dismissed
(Sr.Dn.) CJM, & others P55
injunction
Shivamogga Claimant Nos.5 &
6/defendant Nos.3
&6
Declaration that Sri.Sri.Neelakanta
O.S.227/2012 plaintiff is Saranga Desikendra
V Addl. City Civil Matadhipathi, Mahaswamigalu Decreed
P56 &
and Sessions Peetadhipathi, Ramalingeswara 27.06.2015 Without
P57
Judge, Uttaradhikari Mutt (Claimant costs
Bangalore and No.4) Vs.
Sarvadhikari of State of Karnataka,
32
M.F.A.No.7038/2021
Ramalingeswara Dept. of Revenue
Mutt (Muzarai)
Mallikarjuna
Shivacharya
Mahaswamygalu
(Claimant
Permanent No.11/plaintiff)
Injunction and Vs.
O.S.811/2009
declaration that Chandramouleswara
City Civil Judge, Pending P62
the plaintiff is Shivacharya
Shivamogga
duly appointed Swamigalu
Matadhipathi (Claimant
No.7/D.1) and Ors
Claimant No.4/D5,
Claimant
No.12/D10
Chandramouleswara
Shivacharya
Writ of
Swamigalu
Mandamus
(Claimant No.7)
directing Sub-
W.P.18384/2009 Advocate is
Registrar not to 22.07.2009 Disposed D15
(GM-CPC) Claimant No.6
register lands
Vs.
bearing
Vendors of
Sy.Nos.6 to 13
Claimants Nos.1 & 2
38. The evidence on record shows that apart from the above mentioned cases since 1970 several persons claiming to be mathadhipati/peethadhipati/sarvadhikari/Secretary/GPA of Ramalingeshwar mutt have created labyrinth of litigations against the Government and the purchasers in suits, writ petitions, writ appeals etc. The contention regarding existence of Ramalingeshwar mutt and endowment of the property to the said mutt by Keladi Rulers was sealed by the 33 M.F.A.No.7038/2021 judgment in O.S.No.84/1970 as long back as 11.04.1974.
That was reaffirmed in O.S.No.5300/1980. Despite that K.M.Shivarudriah and his clones went on filing not only the above suits but several other cases before Civil Courts and Revenue Courts at several places and before this Court suppressing some material facts and many times without impleading necessary parties.
39. What is shocking is in O.S.No.11122/1995 (Ex.P51 to 53) present claimant No.6 was plaintiff No.4 and suit was filed against present claimant No.7, showing as if they have conflicting interest. But, claimant No.6 files MFA No.4436/2021 as his advocate which not only shows collusion between the parties but also highly unethical professional conduct. It is also to be noted that such litigations started after the rise of the value of land on urbanization. The records further show that right from 1970 whenever there used to be acquisition of the land by the Government/statutory body some cloned mathadhipati/peethadhipati/sarvadhikari used to pop up with a suit or other proceeding, suppressing the 34 M.F.A.No.7038/2021 earlier proceedings before the other Courts/authorities. That creates a doubt that in the guise of rival mathadhipati/peethadhipati/sarvadhikari they are operating the real estate syndicate against the purchasers and the Government to make unlawful gain. Such conduct is not only the harassment to the adversary, but also the sheer abuse of process of the Court and diversion of resources of the Court, State and the opposite party. It is noticeable that O.S.No.5300/1980 (O.S.No.1923/1975) was dragged for about 27 years. Noting the same the Court dismissed the said suit with costs. The Reference Court appreciating all material on record judiciously has allowed only the claim petition of claimant Nos.1 and 2.
40. IA No.2/2023 for production additional evidence has to be examined in the above context. Under the said application claimant No.4 seeks to produce 8 documents. Serial Nos.1 to 5 amongst them are the copies of civil lists allegedly maintained by the Government. Sl.No.6 is the copy of gazette notification, Sl.No.7 is the copy of joint inspection 35 M.F.A.No.7038/2021 report and Sl.No.8 is purportedly certified copy of the judgment in O.S.No.1923/1975. The application was seriously contested by claimant Nos.1 and 2.
41. The production of additional evidence is neither a matter of right nor a matter of course. Order XLI Rule 27 CPC which deals with the production of additional evidence reads as follows:
"27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--
(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or 36 M.F.A.No.7038/2021
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the court shall record the reason for its admission."
42. The reading of the above provisions makes it clear that additional evidence can be permitted only where the trial Court refused to receive such evidence or despite due diligence the applicant had no knowledge of such evidence or could not produce the same or the same is the requirement of Court to decide the matter. It is not the case of the applicant that the trial Court had rejected such evidence. It is not even his case that he was unaware of existence of such evidence. He only says that on account of inadvertence he did not produce the same and he was not able to secure the copies inspite of his best efforts. Both such contentions cannot go together. Either there should be inadvertence on his part in 37 M.F.A.No.7038/2021 producing the evidence or he should be unable to secure the said documents despite due diligence.
43. Under Order XLI Rule 27 of CPC inadvertence of the party is not a ground to receive the additional evidence.
That contemplates non-production despite due diligence. In the case on hand since 1970 the
mathadhipati/peethadhipati/sarvadhikari/Secretary/GPA of the mutt are claiming that property was endowed to mutt in the early part of 15th century. In fact in O.S.No.84/1970 the documents produced as the Government orders were disbelieved on the ground that they were spurious documents and the person who purportedly issued such Government orders was not in the service of the State. In O.S.No.5300/1980 on examining the civil lists they were rejected. Therefore it cannot be said that claimant No.4 was unaware of such documents or he could not produce the same despite due diligence.
44. So far as the contention that in spite of best efforts, he could not secure the certified copies, in the affidavit 38 M.F.A.No.7038/2021 he does not state when he had applied, why the same were not issued to him. Nothing is produced to show that he had applied for those copies when the matter was pending before the Reference Court. Even in this appeal the present application was filed belatedly. Except the document at Sl.No.8, the other documents produced do not show when the copies were applied, when they were ready and when claimant No.4 appeared to collect the same. Those documents do not even indicate that they were the copies of the originals and they were certified after comparing the same with the originals. Not even the separate list/index of each document is produced along with the application mentioning the particulars of each document and their page initiation. Apart from that how each document is relevant for adjudication of this matter is not stated.
45. So far as the alleged judgment dated 29.03.1978 in O.S.No.1923/1975, it was contended that in that suit accepting the existence of Ramalingeshwar mutt decree for permanent injunction was granted. As already noticed, Ex.P31 the judgment in O.S.No.5300/1980 was not disputed. 39 M.F.A.No.7038/2021 The comparative reading of Ex.P31 and the alleged judgment in O.S.No.1923/1975 produced as additional evidence show that both suits were instituted on 19.09.1975 before the I Munsiff, Bengaluru and the evidence commenced on 13.03.1978. The plaintiff in both suits was Ramalingeshwar mutt and the defendant was Corporation of City of Bengaluru. The subject matter of both the suits were the same.
46. The first question is how the same suit could be simultaneously adjudicated before two Courts viz., one in O.S.No.1923/1975 and the same one by way of transfer to the City Civil Court in O.S.No.5300/1980. Secondly, as per the said judgment, O.S.No.1923/1975 was decreed on 29.03.1978. That means the judgment was delivered within 16 days of commencement of the evidence. The said judgment produced as additional evidence does not contain the list of witnesses and exhibits. On the last page of the document which purportedly certifies the comparison and verification of the copy with the original does not bear the seal of the Court which purportedly issued the document. The above facts indicate that either the document purportedly the 40 M.F.A.No.7038/2021 judgment in O.S.No.1923/1975 dated 29.03.1978 is forged one or the plaintiffs played fraud on the Courts by proceeding before two Courts despite transfer of the matter. Since the matter is serious one an enquiry needs to be conducted in that regard. Further as claimant Nos.1 and 2 were not parties to the alleged proceedings in the purported judgment dated 29.03.1978 in O.S.No.1923/1975 that has no relevance for the present proceedings. As rightly pointed out by learned counsel for claimant No.1 and 2 the application is nothing but an extended arm of procrastination of the proceedings.
For the aforesaid reasons, the appeal and IA No.2/2023 deserve no merit and liable to be dismissed with heavy costs. Hence the following:
ORDER The appeal and IA No.2/2023 are hereby dismissed with costs of Rs.5,00,000/-.
Out of the said costs, Rs.50,000/- each shall be paid to claimant Nos.1 and 2 and remaining Rs.4,00,000/- shall be paid to the Karnataka State Legal Services authority.41
M.F.A.No.7038/2021
The said costs shall be deposited before this Court within four weeks from the date of this order failing which claimant Nos.1 and 2 and the Member Secretary, KSLSA are entitled to recover the same as arrears of Land Revenue.
Registrar (Judicial) is hereby requested to place the matter before Hon'ble The Chief Justice for necessary orders to hold an enquiry regarding genuineness of the copy of the judgment in O.S.NO.1923/1975 dated 29.03.1978 passed by the I Additional I Munsiff, Bengaluru city which is produced as additional evidence. If the document is found genuine, to hold an enquiry as to how the parties conducted two suits in respect of same subject matter before the I Addl. I Munsiff, Bengaluru and XXVII Addl. City Civil Judge, Bengaluru as per Ex.P31 and take necessary action against the concerned.
Pending IAs stood disposed of.
Sd/-
JUDGE Sd/-
JUDGE AKC