Karnataka High Court
Smt Jayalakshmi @ Jaya vs Sri Ujjnimahakaliamman Temple Trust on 24 July, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 973 of 2019
C/W RFA No. 335 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 973 OF 2019 (EJE)
C/W
REGULAR FIRST APPEAL NO. 335 OF 2019 (RES)
IN R.F.A.No.973/2019
BETWEEN:
SMT. THULSI BAI,
W/O LATE MR.MOHAN,
NO.30, SULTANJI GUNTA ROAD,
SRI. BHAKTHA ANJANEYA TEMPLE,
1. BENGALURU - 560 051.
SINCE DECEASED BY LRS
JAYALAKSHMI,
MAJOR,
Digitally signed by
SUMITHRA R D/O LATE MOHAN NAIDU,
Location: HIGH
COURT OF R/AT NO.28, SULTANJI GUNTA ROAD,
KARNATAKA
UJJINIMAHAKALIAMMAN TEMPLE,
BENGALURU - 560 051.
2. LATHA,
MAJOR,
D/O LATE MOHAN NAIDU,
R/AT NO.30, SULTANJI GUNTA ROAD,
SRI. BHAKTHA ANJANEYA TEMPLE,
BENGALURU - 560 051.
SMT. PADMAVATHI,
AGED ABOUT 76 YEARS,
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RFA No. 973 of 2019
C/W RFA No. 335 of 2019
D/O LATE V.M.MUNISWAMY NAIDU,
3. SINCE DECEASED
SRI. M. GOPALAKRISHNA,
AGED ABOUT 41 YEARS,
S/O M.R.MOHAN NAIDU,
4. SRI. M. THYAGARAJ,
AGED ABOUT 38 YEARS,
S/O LATE M.R.MOHAN NAIDU,
ALL ARE RESIDING AT
IN PREMISES NO.30,
SULTANJI GUNTA ROAD,
SRI. BHAKTHA ANJANEYA TEMPLE,
BENGALURU - 560 051.
...APPELLANTS
(BY SRI. S.P.S. KHADRI., ADVOCATE A/W
SRI.MADDURAPPA D., ADVOCATE)
AND:
SRI. BHAKTA ANJENEYA TEMPLE TRUST,
NO.30, SULTANJIGUNTA ROAD,
BENGALURU - 560 051,
REPRESENTED BY ITS
1. MANAGING TRUSTEES AND TRUSTEES
SRI. D. MURALI KRISHNA,
S/O SRI. M. R. DHANAKOTI NAIDU,
NO.45, 5TH CROSS,
NARAYANAPPA BLOCK,
BENGALURU - 560 046.
GENERAL SECRETARY /OFFICER BEARER.
2. SMT. VARA LAKSHMI,
W/O SRI. B. VEERAGHAVALU,
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RFA No. 973 of 2019
C/W RFA No. 335 of 2019
AGED ABOUT 47 YEARS,
R/AT NO.26, DHANAKOTI LANE,
BENGALURU - 560 051.
3. SRI. B. SOMAIAH,
S/O LATE SRI. BAHADUR NAIDU,
AGED ABOUT 58 YERAS,
NO.26, DHANAKOTI LANE,
BENGALURU - 560 051.
BY HIS SUCCESSOR IN OFFICE.
a. SRI. K. VENKATARATHNAM,
S/O K. RAMASWAMY
AGED ABOUT 52 YEARS,
R/AT NO.50/A, NANDA GOKULA LAYOUT,
SHAMPURA VILLAGE,
BENGALURU - 560 045.
4. SRI. D. MURALI KRISHNA,
S/O SRI. M.R.DHANAKOTI NAIDU,
NO.45, 5TH CROSS,
NARAYANAPPA BLOCK,
BENGALURU - 560 046.
5. SRI. G. DEENA DAYAL NAIDU,
S/O LATE SRI. B. GOVINDARAJ,
AGED ABOUT 34 YEARS,
R/AT NO.26, DHANAKOTI LANE,
BENGALURU - 560 051.
6. MASTER. V. SHASHI KIRAN,
S/O B. VEERAGHAVALU,
AGED ABOUT 10 YEARS,
MINOR,
REPRESENTED BY FATHER AND
NATURAL GUARDIAN
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RFA No. 973 of 2019
C/W RFA No. 335 of 2019
SRI. B. VEERAGHAVALU,
R/AT NO.26, DHANKOTI LANE,
BENGALURU - 560 051.
...RESPONDENTS
(BY SRI. RAGHUNATH M.D., ADVOCATE AND
M/S.LEGAL AXIS., ADVOCATES FOR C/R1)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 05.02.2019
PASSED IN O.S.NO.26146/2008 ON THE FILE OF THE XXVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT MAYO HALL
BENGALURU (CCH-20), DECREEING THE SUIT FOR EJECTMENT.
IN R.F.A.No.335/2019
BETWEEN:
1. SMT. JAYALAKSHMI @ JAYA,
W/O SRI.RAJU,
MAJOR,
NO.28 (PORTION),
SULTANJI GUNTA ROAD,
BENGALURU - 51.
2. SHREE LAKSHMI,
AGED ABOUT 39 YEARS,
3. VANI SHREE,
AGED ABOUT 33 YEARS,
4. KAMALA VENI,
AGED ABOUT 31 YEARS,
NOS.2 TO 4 ARE
D/O LATE RAJA GOPAL
& SMT.JAYALAKSHMI (DEFT),
RESIDING IN A PORTION OF
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RFA No. 973 of 2019
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HOUSE PROPERTY BEARING NO.28,
SULTANJI GUNTA ROAD,
BENGALURU - 560 051.
...APPELLANTS
(BY SRI. S.P.S. KHADRI., ADVOCATE A/W
SRI.MADDURAPPA D., ADVOCATE)
AND:
SRI. UJJNIMAHAKALIAMMAN TEMPLE TRUST,
NO.26, 27, 28,
SULTANJIGUNTA ROAD,
BENGALURU - 560 051,
REPRESENTED BY ITS TRUSTEES:
1. SRI.A.CHOKKALINA
2. SRI.DEENADAYAL G.,
3. SRI. N.SUBRAMANIAM,
4. SRI.B.VEERAGHAVALU,
5. SRI.K.RAJKUMAR,
6. SRI.T.M.GOVINDARAJ,
7. SRI.K.VISHWANTH,
8. SRI.MURALI KRISHNA D.,
9. SRI.K.MAHENDER KUMAR JAIN
...RESPONDENTS
(BY SRI. RAGHUNATH M.D., ADVOCATE AND
M/S.LEGAL AXIS., ADVOCATES FOR C/R1)
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RFA No. 973 of 2019
C/W RFA No. 335 of 2019
THIS RFA IS FILED UNDER SECTION 96 OF CPC, 1908
AGAINST THE JUDGMENT AND DECREE DATED 09.10.2018
PASSED IN O.S.NO.26259/2008 ON THE FILE OF THE XXVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT MAYO HALL
BENGALURU (CCH-20), DECREEING THE SUIT FOR EJECTMENT.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
These two appeals RFA No.973/2019 and RFA No.335/2019 are filed by the defendants challenging the judgment and decree passed in O.S.No. 26146/2008 dated 05.02.2019 and O.S.No.26259/2008 dated 09.10.2018 passed by the XXVI Addl. City Civil and Sessions Judge at Mayo Hall, Benagluru respectively thereby, the suit filed for ejectment by the plaintiff-temple is decreed directing the defendants No.3 and 4 to vacate and hand over possession of the suit schedule property to the plaintiff. -7-
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2. For the purpose of convenience, ranking of the parties is referred to as per their status before the Trial Court.
3. It is the case of the plaintiff that plaintiff is a temple trust and represented by its trustees. It is stated that the defendants are under permissive possession of the plaintiff - temple. The plaintiff has issued with legal notice dated 09.06.2008 indicating to terminate the tenancy and thereafter filed suit for ejectment.
4. Defendants have entered into appearance and filed written statement contending that they were permitted to use and occupy the suit schedule property on compassionate ground. Further they submitted that the defendants are the legal heirs of the one of the deceased trustees and hence they are having right to continue in their possession of the suit schedule property which is in the temple premises. At another stretch the defendants have stated that they cannot be characterised as permissive possession in the said premises. Further the -8- NC: 2024:KHC:29416 RFA No. 973 of 2019 C/W RFA No. 335 of 2019 defendants are claiming that the father of defendant No.1 namely M.R. Mohan Naidu is one of the trustees and upon his death, the defendants are entitled to succeed their share in the joint property and therefore the defendants are in lawful possession and trusteeship is hereditary, accordingly by death of defendants' father, the defendants have continued in the possession of the suit premises as a trustees. Therefore, prays to dismiss the suit.
5. Upon rival pleadings the trial Court has framed the following issues.
In O.S.No.26146/2008
ISSUES
1) Whether the plaintiff proves that Defendnats are in permissive possession of suit schedule property?
2) Whether suit of the plaintiff is maintainable u/s.49(C) of the Indian Trust Act?
3) Whether defendant proves that they are in possession of suit property as of right?
4) Whether plaintiff is entitled for the relief's sought for?
5) What decree or order?
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NC: 2024:KHC:29416 RFA No. 973 of 2019 C/W RFA No. 335 of 2019 In O.S.No.26259/2008 ISSUES
1) Whether plaintiffs prove that defendant was permitted to occupy the schedule premises?
2) Whether plaintiffs prove that by issuing notice on 09.06.2008 they have revoked the permission?
3) Whether the defendant proves that they have been in possession of premises as rightful owners?
4) Whether the Plaintiffs are entitled for damages at the rate of Rs.100/- per day?
5) Whether the Plaintiffs are entitled for relief's sought for?
6) What order or decree?
6. In O.S.No.26146/2008 one of the trustees of the plaintiff was examined as PW-1 and got marked fourteen documents as Exs.P.1 to P.14. On behalf of the defendants, defendant No.3 was examined as DW-1 and produced 19 documents from Exs.D.1 to D.19.
7. In O.S.No.26259/2008 one of the trustees of the plaintiff was examined as PW-1 and got marked seven documents as Exs.P.1 to P.7. On behalf of the defendants, defendant No.1 was examined as DW-1 and produced six documents from Exs.D.1 to D.6.
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8. Learned counsel for the appellants in RFA No.973/2019 submitted that the defendants being legal heirs of one of the trustees are in possession and it is their property. Therefore, denied that the defendants are under permissive possession. Further raised grounds that the property is not properly valued and the number of properties are mentioned in the schedule, therefore, the property is shown as in vague. Therefore, it is the main contention of the defendants that they are legal heirs of one of the trustees and are in possession as trustees and not as tenants or in permissive possession. Therefore, prays to allow the appeals by setting aside the judgment and decree passed by the trial Court.
9. On the other hand, learned counsel for respondents submitted that in the written statement defendants have admitted that they have occupied the premises of the temple on permission. Therefore, there is admission as they are under permissive possession and thereafter the plaintiff has terminated tenancy as per
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NC: 2024:KHC:29416 RFA No. 973 of 2019 C/W RFA No. 335 of 2019 Section 106 the Transfer of Property Act, 1882 and it is rightly considered by the trial Court. Therefore, prays to dismiss these appeals.
10. Upon hearing the arguments of the learned counsel appearing for the parties the point that arises for my consideration is:
1. "Whether, under the facts and circumstances of the case, the finding of the trial Court holding that the defendants are under permissive possession and tenancy is validly terminated?
2. Whether judgment and decree requires interference by this Court?"
11. Plaintiff No.4 is examined as PW-1. In the evidence it is stated that the plaintiff is a temple and it is a registered trust and has produced a certified copy of the trust deed. Exs. P.2 and P.3 are the khata extract and tax paid receipts. These documents show the name of the temple trust as owner of the property temple trust. Ex.P.6 is the certified copy of the legal notice issued by the plaintiff. For which defendants have given reply in Ex.P.7, stating that they are in permissive occupation of the
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NC: 2024:KHC:29416 RFA No. 973 of 2019 C/W RFA No. 335 of 2019 property of the temple trust, by contending that they are legal heirs of the one of the trustees. Therefore, the plaintiff has proved that the temple is a registered trust and is the owner of the suit schedule premises.
12. The written statement filed by the defendants that defendants have admitted that they are under permissive occupation of the suit schedule premises. It is the case of the defendants that one Bahaddur Naidu was a trustee and defendant No.1 is a grand daughter-in-law of the said Bahaddur Naidu and inherited to the trusteeship and by virtue of that the defendants are in possession. But, to this effect the defendants have not produced any documents/evidence to show that the said Bahaddur Naidu was a trustee and the possession of the defendants is by virtue of the trusteeship. Whereas, in the written statement itself the defendants have admitted that they are under permissive possession of the suit schedule premises.
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13. Therefore, the trial Court is correct in holding that the defendants are under permissive possession and as stated in the legal notice the defendants tenancy is terminated validly. Therefore, when the defendants were admitted that they are under the permissive possession of the suit schedule property, the plaintiff has right to get possession back from the defendants. Hence, there is no need to make any interference in the judgment and decree passed by the trial Court. Hence, I answer point No.1 in the affirmative and point No.2 in the negative.
14. Accordingly, I pass the following:
ORDER
(i) Appeals in RFA No.973/2019 and RFA No.335/2019 are dismissed.
(ii) Judgment and decree passed in O.S.No.
26146/2008 dated 05.02.2019 and
O.S.No.26259/2008 dated 09.10.2018 passed by the XXVI Addl. City Civil and Sessions Judge at Mayo Hall, Benagluru are hereby confirmed.
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(iii) No order as to costs.
(iv) Draw decree accordingly.
(v) Nine months time is granted to defendants to vacate and hand over possession of the suit schedule property to the plaintiffs.
Sd/-
(HANCHATE SANJEEVKUMAR) JUDGE BVK List No.: 1 Sl No.: 29