Karnataka High Court
N Sudhakar vs M/S Hebron Church (R) on 9 January, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
REGULAR FIRST APPEAL No.1543 OF 2003
BETWEEN
1. N.Sudhakar,
Son of Sri. N.Koteswara Rao,
Aged about 46 years,
Residing at 13th Cross,
Near Water Tank,
New Township,
Marathahalli,
Bangalore-560037.
2. C.Suvarnarathnam,
Son of Sri. C.Jeeva Rathnam,
Aged about 65 years,
Residing at No.502,
12th Cross, Glory Nivas,
Vinayakanagar,
Bangalore-560037.
3. G.L.Prasad Rao,
Son of Sri. G.L.Pullaiah,
Aged about 47 years,
Residing at G.B.4.,
Old Township,
H.A.L., Colony,
Bangalore-560017. ...Appellants
(By Sri. H.C.Shivaramu, Advocate)
2
AND
1. M/s. Hebron Church (Regd.),
G.B.J.447/4, near Water Tank,
Marathahalli,
Bangalroe-560037,
A Religious Charitable Trust,
Represented by its Chairman
Sri. G.Issac,
2. G.Issac,
Aged about 52 years,
Chairman,
Hebron Church Trust,
Residing at G.424,
HAL Old Township,
Bangalore-560017.
3. D.Joseph Babu,
Aged about 53 years,
Vice Chairman,
Hebron Church Trust,
Residing at 96/B, 13th Cross,
Rameshnagar,
Bangalore-560037.
(since dead, deleted
vide order dated 28/6/10)
4. K.P.Vasudevan Nair,
Aged about 59 years,
Secretary,
Hebron Church Trust,
Residing at GBJ 49, 2nd Main,
3rd Cross, HAL New Colony,
Marathahalli,
Bangalore-560037.
5. M.Edwin Joseph,
Aged about 51 years,
Treasurer,
3
Hebron Church Trust,
Residing at G-1263, 9th Cross,
HAL New Colony,
Bangalore-560037.
6. D.Andrews,
Aged about 41 years,
Trustee,
Hebron Church Trust,
Residing at 2nd Cross,
Rameshnagar,
Bangalore-560037.
7. R.D.Ravindra,
Aged about 51 years,
Trustee,
Hebron Church Trust,
Residing at Bethania House,
Near Anjaneya Temple,
Marathahalli,
Bangalore-560037.
8. K.Soloman,
Aged about 41 years,
Trustee,
Hebron Church Trust,
Residing at G-980, 4th Cross,
HAL New Colony,
Marathahalli,
Bangalore-560037.
9. Bernard Shaw Joseph,
Aged about 49 years,
Trustee,
Hebron Church Trust,
Residing at No.113,
1st Floor, 1st Main,
6th Cross, Domlur Layout,
Bangalore.
4
10. Victor Wilson Billa,
Aged about 35 years,
Trustee,
Hebron Church Trust,
Residing at No.G-1122,
Central Township,
HAL Quarters,
Marathahalli,
Bangalore-560037.
11. M.Murthy,
Aged about 34 years,
Trustee,
Hebron Church Trust,
Residing at No.G-465,
Old Township,
HAL Quarters,
Bangalore-560017. ....Respondents
(By Sri. Ganapathi Bhat, Advocate for
R1, R4 to R6 & R8(absent), R2-served,
R3-dead & deleted vide order dated 28/6/10,
Sri. Santosh Raj, Advocate for R7, R9 & R10(absent)
Notice to R11 held sufficient vide order dated 5/6/14)
This RFA is filed under Order 41 Rule 1 of CPC against
the judgment and decree dated 27.08.2003 passed in
O.S.No.1368/97 on the file of the XXXI Additional City Civil
Judge, Bangalore, CCH No.14, decreeing the suit for
permanent injunction & declaration.
This RFA having been heard and reserved on
05.12.2017, coming on for pronouncement this day, the
Court pronounced the following :
5
JUDGMENT
This appeal is by the defendants in O.S.No.1368/1997 on the file of 31st Addl. City Civil Judge, Bengaluru. By judgment and decree dated 27.08.2003, the trial court decreed the suit of the respondents and hence this appeal.
2. By referring to the parties with respect to their positions in the trial court the pleadings in brief are as follows:
The subject matter of the suit is the management of a church called Hebron Church situated at No.G.B.J.447/4, near water Tank, Marathahalli, Bangalore - 37. The 1st plaintiff is a registered charitable trust. The plaintiffs 2 to 8 are its trustees. It was constituted mainly for the purpose of managing the activities of the church and to meet the religious needs of the protestants Christian members of HAL employees residing at HAL township, Bangalore. The HAL management let out lands to various religious institutions in order to meet the religious needs of its employees at its township area and accordingly a piece of land was also 6 allotted to the plaintiffs. The religious activities of the trust was entrusted to one of the trustees Sri. Rathnaiah who was also the founder and author of the trust. He was being paid salary of Rs.800/- initially and it was increased to Rs.1,000/- per month subsequently. On his personal reasons he resigned from the trusteeship and returned to his native place in Andhra Pradesh.
3. When Rathnaiah left for his native place, the 1st defendant approached the Board of Trustees with a request for job of doing holy services at the church. In fact Rathnaiah introduced the 1st defendant to the trust. Therefore the board of trustees appointed the 1st defendant temporarily for a month or two for performing the religious ceremonies or observances. The services of the 1st defendant was not continued as he lacked the pastoral qualities of humility and meekness and that he also did not possess pastoral experience or qualification in theological education. Therefore his services was not continued. After the 1st defendant was discontinued, one P.D. Jesudhas was also an author and founder member of the trust started performing 7 holy services of the church till October, 1996 and then he died on 2.11.1996. Therefore the chairman of the trust started performing the holy services of the church.
4. The 1st defendant, in order to prevent the board of trustees from implementing the objects of the trust resorted to unlawful activities in connivance with the other two defendants. On 14.01.1996, during Sunday holy services the defendants gained entry into the church with hired goondas and forcibly took away offertory money and threatened the congregation with dire consequences. In this regard the Vice Chairman of the trust made a complaint to the police on 15.01.1996. The defendants kept quite for sometime and again on 31.03.1996, the defendants came with goondas, opened the offertory box and carried away the money available in that box. They repeated their unlawful acts on 07.04.1996 also. Therefore the plaintiffs filed a suit for permanent injunction to restrain the defendants or anybody claiming under them from entering into the church premises, for a direction to the defendants to render proper accounts of the money stolen by them by opening the 8 offertory box and for a declaration that the monies collected by the defendants in the name of the church are the funds of the Hebron church and that they do not have right of whatsoever nature to meddle with the trust fund.
5. The defendants denied all the plaint averments and contended that the Hebron Church, Hyderabad is a registered society and was also called THE SOCIETY OF TRUSTEES OF INDIGINEOUS CHURCHES IN INDIA. It was registered under the provisions of Andhra Pradesh State Societies Act and had its registered office at Golconda Cross Road, Hyderabad. The said society opened churches through out India, each society being managed by local managing committee selected from among the active church members. Thus in the year 1965, a first church was opened at Bangalore at No.28, Cubbon Road. Since eviction order was passed by the court against the church, it was shifted to Chinnappa Garden. To cater the religious needs of the local workers residing in the vicinity of HAL and surrounding areas a church at Marathahalli was opened in the year 1974. In the year 1980, the HAL authorities allotted on lease a 9 piece of land measuring 2200 sq.ft. in favour of the church represented by its authorized representative and Pastor Bro. Amirthraj. He died in the year 1985. Thereafter the head office at Hyderabad appointed Bro. E. John Steward to manage the church situated at No.G.B.J.447/4, near Water Tank, Marathahalli. The HAL did not execute the lease deed in favour of the church because the church authorities wanted a land area of 2400 sq.ft. Therefore the defendants contended that the church situated at Chinnappa Garden and Marathahalli are managed and administered under the Rules and Regulations of Societies Act of Andhra Pradesh. The then Pastor Ratnaiah did not resign from the trusteeship. In fact Ratnaiah was posted to the church at Marathahalli from Hyderabad. He worked there till 1985 and thereafter he was transferred to Madanapalli. The 1st defendant Bro. Sudhakar was transferred to Marathahalli Church. This being the background, in the year 1987, one Bro. Joseph P. Kurian and Bro. Ratnaiah unscrupulously registered a private trust as parallel body for administering the church at Marathahalli and created an unpleasant 10 atmosphere. The 1st defendant did not seek a job at the church, rather he was transferred to Marathahalli on 01.05.1995 on a salary of Rs.2,000/- per month. The plaintiffs have no locus standi to question the authority of the 1st defendant. It is also stated that P.D. Jesudhas was not performing the holy services till October, 1996. The plaintiffs are disgruntled elements who started problems from January 1995. For the purpose of maintaining harmony and brotherhood, the managing committee restrained itself from enforcing criminal action against the plaintiffs. The defendants 2 and 3 became the members of the plaintiffs trust without knowing the consequences. When they came to know that the formation of the trust was illegal and that it was against the wishes of the head quarters they resigned to the trusteeship and for this reason the plaintiffs have turned hostile towards them. The defendants have alleged that the plaintiffs indulged in illegal acts to create fear in the minds of the members of the church. They actually carried the offertory box. With the help of the local police the defendants were able to open the 11 box for using the money for administrative expenses. They state that the land was leased to Hebron Worship of House and that they are incharge of the church. The plaintiffs do not have any kind of right and therefore they pray for dismissal of the suit.
6. The trial court framed the following issues:
"1. Whether the plaintiffs prove that the first plaintiff is a registered religious charitable trust?
2. Whether the plaintiffs further prove that the board of Trustees of the 1st plaintiff have been administering the affairs of the church activities of Hebron Church, Marathahalli, Bangalore-37?
3. Whether the plaintiffs further prove that the defendants disturbed and intervened with the administration of the activities of the church of the 1st plaintiff-Trust?
4. Whether the defendants prove that Hebron Church at Hyderabad is a registered society, known and called as Society and 12 Trustees of Indigenous Churches in India and that in the year 1974 Marathahalli Extension Church, Bangalore was opened and established under the Hebron Church Act?
5. Whether the defendants further prove that Church of Marathahalli is managed and administered under the Rules and Regulations of Societies Act of Andhra Pradesh by Hebron Church, Hyderabad?
6. Whether the plaintiffs prove that the monies of the offertory box of Hebron Church, Marathahalli Bangalore, offered by congregation at the Holy services of the church and the monies collected in the name of the said church are the funds of the 1st plaintiff trust?
7. Whether the plaintiffs prove that the defendants have no right whatsoever to meddle/deal with the trust fund collected in the offertory box or otherwise, pertaining to the 1st plaintiff trust?13
8. Whether the plaintiffs are entitled for declaration and for perpetual injunction as sought for?
9. Whether the defendants prove that the plaintiffs have no locus-standi to file the suit?
10. To what reliefs or order?"
7. One witness PW-1 adduced evidenced from the plaintiffs side and produced the documents as per Ex.P.1 to P.78. From the defendants' side two witnesses adduced evidence and got marked the documents as per Ex.D.1 to D.140. The trial court after appreciation of evidence decreed the suit.
8. The learned trial judge, has held that existence of plaintiff church including a church at No.28, Cubbon Road is not disputed by the defendants. The learned trial judge held that if the plaintiffs were able to establish that the 1st plaintiff church had been registered under Karnataka Societies Act, the defendants would be out of court. Ex.P.1 is a registered trust deed which shows that the Hebron 14 Church is situated at No.28, Cubbon Road, Bangalore and it was registered under Karnataka Societies Act and for this reason the contention that the defendants have taken that Hebron Church situated at No.28, Cubbon Road was registered under the Andhra Pradesh Societies Act has no force. The plaintiffs have produced certified copy of the registration certificate as per Ex.P.75 to show that Hebron House of Worship at No.28, Cubbon Road, was registered under the provisions of Karnataka Societies Registration Act. But the defendants have produced a registration certificate as per Ex.D.3 issued by the Registrar of Societies of Andhra Pradesh and this certificate does not show that the Hebron church at Cubbon road was registered under the Andhra Pradesh Societies Act. Though Ex.D-3 shows that the society of Trustees of Indigenous Churches in India was registered under Andhra Pradesh Societies Registration Act, it does not show that the church at Cubbon Road, Bangalore was also registered according to provisions of Andhra Pradesh Societies Registration Act and therefore Ex.D.3 has no relevance. The trial court has referred to Ex.D.5, a 15 resolution passed by the Hebron Church, Hyderabad, but in the said document the name of Hebron Church, Cubbon Road, Bangalore is not mentioned although it contains the names of 51 other churches. For this reason the documents produced by the defendant do not prove the stand of the defendants that Hebron Church, Cubbon Road, Bangalore was registered under the provisions of Andhra Pradesh Societies Registration Act. The trial court has also held that DW.1 has admitted the existence of a church at Cubbon Road and has also admitted that he became the trustee of the plaintiff's church when the 2nd defendant Suvarna Rathnam was its Secretary. These admissions of DW-1 prove the existence of the plaintiff's trust also. Referring to the evidence of DW-2 that the plaintiff trust was registered in the year 1987, without the consent of Hyderabad Society, the trial court has come to an opinion that the defendants have no right to deny the existence of the plaintiff's church.
9. The trial court referred to Ex.P.39 and P.40 the resignation letters submitted by the 2nd and the 3rd defendants to come to conclusion that the church which was 16 in existence at Cubbon Road, Bangalore earlier was shifted to Marathahalli. The correspondence that took place on various dates between the plaintiffs' church and HAL Authorities regarding allotment of land for Hebron Church and payment of electricity charges by the plaintiff as evidenced by Exs.P.2, P.5. P.6, P.10, P.10(A), P.11, P.13, P. 14 to P.30 would show that the plaintiff church was registered under the Karnataka Societies registration Act. Further referring to Ex.P.32, a letter written by HAL authorities to Sri. S.J. Amirtraj, the trial court came to conclusion that the existence of church at Marathahalli, Bangalore cannot be disputed.
10. With regard to administration of the church, the trial court has held that because the plaintiff church was registered under Karnataka Societies Registration Act, certainly it should be under the management of the plaintiffs only. Though DW-1 and DW-2 have stated that plaintiffs' church is a bogus church and therefore they resigned their post from the plaintiff church, they worked there in the capacities of trustees and for this reason they cannot 17 approbate and reprobate to contend that the plaintiffs' church is not under the management of the church at Marathahalli. The court has held they are estopped from taking a contrary view. It has held further that the Hyderabad Society has no existence in Karnataka. The defendants are fighting for the cause of Hyderabad Society. It is not the case of the defendants that Hyderabad Society is a necessary party to the suit. There is nothing on record to hold that administration of the plaintiff trust is controlled by Hyderabad Society. No iota of evidence is produced by the defendants to show that DW-2 was appointed by the Hyderabad Society to the plaintiff church and for all these reasons the plaintiffs have established their claim over the church.
11. Assailing the above findings of the trial court, the learned counsel for the appellant argued on lines with the grounds urged in the memorandum of appeal. It is mainly urged that notwithstanding the defence of the defendants/appellants that the Hyderabad Society was managing the church at Marathahalli, it was incumbent on 18 the respondents/plaintiffs to show that they were managing the church and that they came into management in a manner acceptable to law. There is no proof in this regard. The trial court has not noticed that the plaintiffs' trust came into existence only in the year 1987, but the church was established even before 1980. The plaintiffs have not at all produced any evidence as to how the church was being managed before 1987. The church existed even before 1980. Hindustan Aeronautics Limited allotted a plot for the construction of church for the benefit of the employees of HAL who belong to Christian community and at the time of allotment the plaintiff trust was not at all in existence. It was Hyderabad Society which was managing the church at Marathahalli and Bro. Amirtraj was instrumental in getting the plot allotted. He was the representative of Hyderabad Society.
12. It is further urged in the ground of the appeal that the trial court misdirected itself by presuming that the church in dispute was established under the Karnataka Societies Registration Act for the protestant Christians or for 19 the indigenous Christians under the Andhra Pradesh Societies registration Act and then concluded that if the plaintiff were able to establish that the 1st plaintiff trust was established under the Karnataka Societies Registration Act, the defendants would be out of court and that the Hyderabad Society had no existence in Karnataka and therefore it is contended that this approach of the trial court was biased which has run through the course of the impugned judgment. Merely because the trust was created, its trustees could not assume control over the church because the trustees ought to be entrusted with the management of the church by those who were in management earlier and the entire case of the plaintiff would indicate that they arrogated to themselves the power of management. Even Ex.P.1 the trustee does not show that the trust had power to establish a church whereas the objects of the Hyderabad Society in terms of its memorandum of association produced along with registration certificate Ex.D.3 and the Articles of Association Ex.D.4 was to establish indigenous churches in India and 20 other countries. Therefore it was necessary for the plaintiffs to plead and prove that the trustees of the trust were entrusted with management of the trust.
13. It is contended that the trial court has not referred to the documents produced by the defendants, and if it had applied its mind by placing reliance on those documents, it was possible for the trial court to come to a right conclusion that the church was given to Hyderabad Society at the instance of its constituent church Hermon House of Worship, No. 28, Cubbon Road, Bangalore. The impugned judgment shows that it misdirected itself to believe that Hebron House of Worship which is an unauthorized body became the subject church after shifting from 28, Cubbon Road, Bangalore-1 though there is nothing to show that the church at Cubbon Road was itself the Hebron House of Worship. Therefore the impugned judgment suffers from illegality and non application of mind. It requires to be set aside.
21
14. The appellants/defendants have filed two applications as per I.A.No.1/12 and I.A.No.1/15 under Order 41 Rule 27 CPC seeking to produce some documents by way of additional evidence. The respondents /plaintiffs have also filed an application as per I.A.No.2/12 under Order 41 Rule 27 CPC seeking to produce one document by way of additional evidence.
15. The learned counsel for the respondents was absent. There was no argument from the respondents' side.
16. In the light of the arguments advanced by the learned counsel for the appellant and the grounds urged in the memorandum of appeal, the following points arise for consideration.
i. Whether the applications filed by the
appellants and respondents under Order 41
Rule 27 CPC can be allowed?
ii. Whether the trial court has committed an
error by holding that the first plaintiff church managed by other plaintiffs was managing the administration and affairs of the Hebron 22 Church, G.B.J.447/4, near Water Tank, Marathahalli?
iii. Whether the trial court is justified in granting an order of permanent injunction against the defendants?
iv. What order? POINT No.1:
17. The applications filed by the appellants for production of additional evidence are supported by the affidavit of the 3rd appellant. If the affidavits are read, it can be seen that the 3rd appellant has narrated the entire defence once again in an affidavit filed along with I.A.No.1/15 and has also given some details of subsequent events. The affidavits disclose the judgment in a suit O.S.No.10116/1998 filed by the Societies of Trustees of Indigenous in India against the respondents/plaintiffs in this appeal seeking a declaration that church by name Hebron church situated at G.B.J.447/4, Marathahalli belongs to it and for permanent injunction. It is stated that the said suit 23 came to be decreed and that the respondents/plaintiffs who were defendants in that suit preferred an appeal RFA.No.1206/2010 which was also dismissed by this court. The appellants also want to produce copy of the plaint in O.S.6734/2012 filed by the respondents against the Societies of Trustees of Indigenous churches in India and some others. It is stated that the documents that are sought to be produced are very much necessary for the disposal of this appeal as they have bearing on the conduct of the respondents and evidentiary value with regard to the merits of the case. It is stated that these documents are therefore necessary to be taken on record for disposal of the appeal.
18. The application filed by the respondents for production of additional evidence is accompanied by an affidavit of Sri. K.P. Vasudevan Nair, the secretary of the 1st respondent trust. He has stated that the HAL executed a lease agreement in respect of the 1st respondent church and a certified copy of the lease agreement is sought to be produced by way of additional evidence. It is stated that this 24 lease agreement is very much relevant to determine the real controversy between the parties.
19. Order 41 Rule 27 CPC envisages circumstances under which the appellate court can receive additional evidence. The first circumstance is that the court from whose decree the appeal is preferred should have refused to adduce evidence which ought to have been admitted. Secondly the party producing additional evidence, in spite of exercising due diligence was not able to produce evidence or such evidence was not within its knowledge when the suit was pending before the trial court and thirdly that the appellate court should require any document to be produced or any witness to be examined to enable it to pronounce judgment or for substantial cause. If the affidavits filed in support of these three applications are perused, it becomes quite clear that the first two grounds cannot be invoked. It is stated in the affidavits that the documents that are sought to be produced under the applications are relevant and necessary for the disposal of the suit. Therefore it can be said that the third circumstance can be invoked. The 25 appellants want to produce about nine documents under I.A.No.1/15; the main document among them is certified copy of the judgment in O.S.No.10116/1998. This was suit filed by the Society of Trustees of Indigenous churches in India against M/s. Hebron Church i.e., the 1st plaintiff church in this appeal and some others. It was a suit for declaration and permanent injunction. This suit was decreed declaring that the trust deed dated 24.04.1987 was illegal and that the defendants in the said suit were perpetually injuncted from interfering with the management and control of the Hebron Church situated at Marathahalli. The judgment passed in the suit was challenged by the defendants therein by filing RFA.No.1206/2010 before this court and the said appeal was dismissed. Certified copy of the judgment in the appeal is produced along with I.A.No.1/12 for being received as additional evidence. These two documents cannot be disputed by the plaintiffs /respondents who are asserting their claim over the management of the Hebron Church, Marathahalli. In my opinion these two documents are relevant and required for 26 the purpose of disposing this appeal and therefore the application filed by the appellants as per I.A.No.1/12 can be allowed to receive the certified copy of the judgment in RFA.No.1206/2010. So far as I.A.No.1/15 is concerned only one document i.e., copy of judgment in O.S.No.10116/1998 and also copy of the plaint in OS.No.6734/2012 can be received and this application can be partly allowed. The other documents cannot be received.
20. In the same way the application filed by the respondent can be allowed because what is required to be examined is whether they gained control over the management of the church and if according to the respondents the lease agreement dated 30.08.2012 is helpful, there is nothing wrong in receiving this document to examine whether this document really helps the respondent establish their case. Therefore the respondents' application as per I.A.No.2/12 can be allowed.
21. According to Order 41 Rule 28 CPC once the appellate court allows the application under Order 41 Rule 27 27 CPC, it can receive the additional evidence or it may require the court from whose decree the appeal is preferred or any other subordinate court to take such evidence and send it. Here since these documents produced by the appellant cannot be disputed by the respondents, the said documents can be examined while answering Point No.2 without there being need to record oral evidence of witnesses on these two documents. In so far as the lease deed produced by the respondents are concerned, it can be said that whether the lease deed has got any bearing on the merits of the appeal can be examined by directly considering that document which has come into existence subsequent to filing of the suit. Therefore with these discussions, the point No.1 is answered in affirmative.
POINT Nos. 2 & 3:
22. The findings of the trial court are narrated above.
The respondents who are the plaintiffs in the suit and since they assert that they had control over management of the Hebron Church, Marathahalli, it was for the plaintiff to 28 establish that aspect. It must also prove that the management of the said church was entrusted to it and that the church was constituted mainly for the purpose of managing the church and other like purposes. Ex.P.1 is the trust deed. Perusal of the objects mentioned in the trust deed shows that the said trust was constituted for propagating the gospel of the Lord Jesus Christ in all walks of life for the betterment and guidance of humanity and such other religious and benevolent purposes. It does not disclose that it was mainly constituted for the purpose of managing the Hebron Church at Marathahalli. Ex.P.2 is a letter written by HAL to the Secretary of Hebron Church on 11.07.1996. It only shows that the HAL furnished a copy of the letter dated 26.03.1980 in relation to allotment of land to Hebron Church. This letter shows that the allotment was made in the year 1980. Ex.P.10(a) evidences payment of electricity charges. Ex.P.3, P.4, P.5, P.6 are also letters in connection with allotment of land for religious institutions. Ex.P.3 bears the date 6.3.1980. Ex.P.7 is a Minutes book or resolution register maintained by the 1st plaintiff trust. 29 Ex.P.8 is the pass book of the Hebron Church. Ex.P.9 is charge taking over register. Ex.P.11, P.14, P.16, P.17, P.19, P.20, P.22, P.23, P.26, P.28, P.29 are invoices. Ex.P.12, P.15, P.18, P.21, P.24, P.27, P.30, P.31 are receipts. Ex.P.33 to P.38 are balance sheets. Ex.P.42 is a payment voucher dated 02.07.1995 issued by Hermon (House of Worship) probably in connection with payment of salary to Pastor. Ex.P.46 is a letter dated 03.10.1986 from which it can be seen that the HAL decided in the year 79/80 itself to lease a piece of land for establishment of a church at Marathahalli. Ex.P.60 is the payment of license fee. Ex.P.61 is another letter dated 02.02.1967 written by the Secretary of the Hebron Church to the chief manager HAL. Exs.P.62 to P.66 are copies of complaints made to Vimanapura Police Station against the appellants defendants. Ex.P.67 is a photograph. Ex.P.68 is another complaint dated 17.11.1999. Exs.P.69 and P.70 are two receipts. Ex.P.71 is a payment voucher. Ex.P.73 is a letter written to the Assistant Commissioner of Police by the Societies of Trustees of Indigenous churches in India. Ex.P.74 is a letter written to Registrar, Societies 30 mentioning the names of the board of management of the Hermon House of Worship. Ex.P.75 is the certified copy of the registration in relation to Hermon House of Worship. Ex.P.76 is a letter written by one Bhaktasingh. Ex.P.77 is certified copy of order passed on some I.As. by the Chief Judge of City Civil Court, Hyderabad. Ex.P.78 is also a certified copy of the order passed by the Chief Judge, City Civil Court, Hyderabad.
23. Appellants/Defendants have produced number of documents out of which the relevant documents are Exs.D.13, D.14, D.15, D.16, D.17, D.17(A), 17 (B), D.20, D. 21, D.40. Ex.D.13 shows that the HAL wrote a letter to one Amirtraj on 14.03.1976 stating that the Senior Administrative Manager wanted to meet him on 6.3.1976 to discuss the matters relating to religious institutions, temples or churches existing in the HAL estate. Ex.D.14 is a letter dated 24.03.1976 written to J. Amirtraj by the Administrative Manager of the HAL stating that the rent payable in respect of the land occupied by Hermon house of worship was Rs.24.30 per sq. mtr. for built up area and 31 Rs.195.70 per sq.mtr. for non-built up area. Ex.D.15 is also a letter dated 23.06.1980 written by the Administrative Manager of HAL to the Hebron Church in connection with allotment of land to the said church with some conditions. Ex.D.16 is a letter written by Bro. G.D. Venkataratnam of the Hebron Church, Golconda Cross Road, Hyderabad to Amirtraj. Ex.D.17 is a letter written by the Prl. Trustee namely Bhakatsingh of the Societies of Trustees of Indigenous Churches in India to the Administrative Manager of HAL stating that the governing body of the Societies of Trustees of Indigenous churches in India resolved to empower Amirtraj to execute a lease deed in connection with allotment of 990 sq. mtrs of land to the Hebron Church, Bangalore. Ex.D.17(A) dated 23.04.1980 is a resolution empowering Amirtraj to execute lease deed. Ex.D.17(B) is a certificate in connection with registration of the Societies of Trustees of Indigenous Churches in India. Ex.D.20 is a letter written by Amirtraj on 30.05.1980 to the Administrative Manager of HAL requesting him to allot some extra area for the purpose of activities of the church. 32 Ex.D.21 is a letter dated 24.10.1980 written by the Administrative Manager of HAL to Hermon House of Worship, No.28, Cubbon Road, Bangalore represented by Amirtraj enclosing therewith draft of the lease deed for approval. Ex.D.21(A) is a draft of the lease deed. Ex.D.40 is a letter by L. Sudhakar i.e., the 1st defendant to the Senior Administrative Manager on 31.07.1995 stating that on 01.5.1995 he was transferred to the church at Marathahalli and that the earlier Pastor namely Ratnaiah was transferred to Madanapalli. In the same letter the 1st defendant informed the Senior Administrative Manager that he took over the responsibility of the church on 02.06.1995.
24. Therefore on examining the documents produced by the plaintiffs/respondents and the defendants/appellants, it can be very well said that the 1st plaintiff trust came into existence only in the year 1987. But the church at Marathahalli, as disclosed by the documents produced by the defendants was in existence since the year 1980. If according to the plaintiffs, the trust was constituted for the purpose of managing the Hebron Church at 33 Marathahalli, the trust deed should have disclosed that the trust was constituted mainly for that purpose. The plaintiff should have also produced proof that when actually they took over the management of the church from the managing body that was there before the constitution of the trust. Such kind of evidence has not been produced by the plaintiffs. In fact some of the documents produced by the plaintiffs are prior to registration of the trust. Those documents only show that even before constitution of the trust, the church was under the control of the Hyderabad Society. In fact many of the documents as referred to above show that the Hyderabad Society or Societies of Trustees of Indigenous Churches in India was the one which corresponded with HAL for getting a piece of land allotted for the establishment of the church. One Bro. Amirtraj was the one who was authorized by the said Society for executing the lease deed. This document is not disputed by the plaintiffs. Just because the trust came into existence in the year 1987 and that there are some documents to show that it had made some payments, it cannot be said that it had gained 34 control over the management of the church. Perusal of the answers given by PW-1 in the cross examination shows that he has given some evasive answers to some of the important questions. In fact he admits the suggestion that it was Amirtraj who addressed a letter as per Ex.P.31 to HAL on 04.11.1974 for seeking permission to put up a temporary structure. He may have denied further suggestion that the Societies of Trustees of Indigenous Churches in India executed general power of attorney in favour of Amirtraj to correspondence with HAL, but this denial has no effect since the documents produced by the defendants show very much that Amirtraj had been authorized by the Societies of Trustees of Indigenous Churches in India, Hyderabad. The evidence of PW-1 is no use at all for establishing the plaintiff's case.
25. It is the clear case of the defendants that after order was passed to evict the Hebron church situated at Cubbon Road, it moved to Chinnappa Garden and even when the Hebron Church was situated at Cubbon Road, there was already a church in existence at Marathahalli. One 35 document produced by the defendants as per Ex.D.21 shows that S.J.Amirtraj was in-charge of Hermon Church, No.28 Cubbon Road, and it was to him that HAL addressed a letter for approval of lease in connection with allotment of land in the HAL premises for establishment of a church. It is mainly contended by the respondents that Hermon Church and Hebron church are two different establishments, but this cannot be accepted because the Societies of Trustees of Indigenous Churches in India had established churches at different places with different names and one such church was the Hermon Church. The learned trial judge has observed that in Ex.D.5 the list of churches established by the Hyderabad Society, the church at No.28, Cubbon Road is not mentioned and therefore he has doubted the case of the defendants. This inference cannot be drawn because there are some other documents which are referred to above to evidence that the Hyderabad Society or Societies of Trustees of Indigenous Churches in India authorized Amirtraj who was in-charge of the church at Cubbon Road to correspond with HAL.
36
26. If the entire cross examination of DW.1 is perused, the inference that can be drawn is that the plaintiff has questioned him more about his claiming reservation even after his conversion to Christianity than what he has actually spoken about the defendants' case. The cross examination of DW.2 reveals that one Bhakatasingh was the one who got the Societies of Trustees of Indigenous Churches in India registered under the provisions of Andhra Pradesh Societies Resignation Act. A suggestion is given to him that the Marathahalli church is under the control of the plaintiff, but he has given answer voluntarily that the church was under the control of the plaintiff presently that means at that relevant time. This admission does not help plaintiff in any way to infer that the plaintiff trust was under the control of the church at Marathahalli even before the constitution of the trust.
27. On re-appreciation of the evidence the inferences that can be drawn are that the church at Marathahalli came into existence probably in the year 1980. The documents produced by the defendants establish that it was Amirtraj, 37 who was in-charge of the church at Cubbon Road, corresponded with HAL for getting a piece of land allotted. There is no evidence to show that after constitution of the 1st plaintiff trust, it took over the management of the Marathahalli church. Going by the answer given by DW.2 in the cross examination, if the plaintiff trust was managing the church at Marathahalli, it cannot be said that it took over the management of the church in a manner known to law. It was for the plaintiff to have pleaded and proved as to when and how they took over the management of the trust. In the absence of proof of this nature, it cannot be said that it was a lawful management of the Marathahalli church. The learned trial judge has not discussed the evidence at length. He has totally ignored the effect of documents produced by the plaintiffs themselves. He has relied on some of the documents produced by the defendants to decree the suit. Findings of the trial court cannot be accepted as they suffer from total non-application of mind.
28. Even from the additional evidence produced by the appellants it can be seen that the Societies of Trustees of 38 Indigenous Churches in India filed a suit O.S.No.10116/1998 against the present plaintiffs and obtained decree that the trust deed dated 24.04.1987 i.e, Ex.P.1 is illegal and that the trust and its trustees were injuncted from interfering with the management of the Marathahalli church. This judgment was challenged in the appeal RFA.No.1206/2010. The said appeal was dismissed. Another document i.e,. copy of the plaint in O.S.No.6734/2012 shows that M/s. Hebron Church, Marathahalli represented by K. Solomon, D. Andrews, P Varaprasad, and M. Murthy filed a suit seeking a declaration that the judgment in O.S.No.10116/1998 was not binding on it. I do not think that the said suit has any relevance in the background of the fact that the plaintiff respondents have failed to prove as to when actually they took over management of the trust. The additional document produced by the respondents i.e., the lease deed has no relevance as it bears a date 30.08.2012. Basically the respondents brought a suit for permanent injunction and therefore they should have proved that on the day when they 39 filed the suit, they were lawfully managing the church at Marathahalli. As it can be seen that there is no such proof, this lease deed dated 30.08.2012 is of no use at all. It can also be stated that in the facts and circumstances pleaded by the plaintiff / respondents, they should have filed a suit for declaration with regard to control over the management of the church. The declarations that they have sought have least consequence. Therefore with this discussion I come to conclusion that the judgment of the trial court is to be set aside. Hence the following :
ORDER i. Appeal is allowed with costs.
ii. Judgment and decree dated 27.08.2003 passed in O.S.No.1368/1997 on the file of XXXI Addl. City Civil Judge, Bengaluru is set aside. iii. Suit is dismissed.
Sd/-
JUDGE sd