IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR SECOND APPEAL NO.940 OF 2011 BETWEEN:
JAYAMMA, AGED 56 YEARS, D/O DAKSHAYANAMMA, W/O NEELAKANT SHASTRY, # 655, 4TH MAIN 19TH CROSS, VIDYARANYAPURAM, MYSORE – 570001. ... APPELLANT (BY SRI V PADMANABHA KEDILAYA, ADVOCATE) AND:
1. K R RANGAIAH, S/O K RANGAIAH, AGED ABOUT 61 YEARS 1238, C AND D BLOCK, III CROSS, GANGA ROAD, KUVEMPUNAGAR, MYSORE – 570001.
2. THE COMMISSIONER, MYSORE URBAN DEVELOPMENT AUTHORITY, MYSORE. ... RESPONDENTS (BY R1 SERVED AND UNREPRESENTED SRI T.P.VIVEKANANDA, ADVOCATE FOR R2) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 06.01.2011 PASSED IN R.A.NO.639/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, MYSORE. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 04.07.2006 PASSED IN O.S.NO.310/2004 ON THE FILE OF THE V ADDL. FIRST CIVIL JUDGE (JR.DN.), MYSORE.
THIS REGULAR SECOND APPEAL COMING FOR FINAL HEARING ON THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and decree dated 06.01.2011 passed in R.A.No.639/2010 by the Presiding Officer, Fast Track Court-II, Mysore, wherein the appeal directed against the judgment and decree dated 04.07.2006 passed in O.S. No.310/2004 by the V Addl. First Civil Judge (Jr.Dn.), Mysore, came to be dismissed. In order to avoid confusion and overlapping, the parties herein are referred in a accordance with their status in the trial court.
2. The suit in O.S.No.310/2004 was filed by the plaintiff for the relief of mandatory injunction against the defendant directing the defendant and his followers to demolish the structure built near the temple on the schedule land for running School and the relief of permanent injunction was sought to restrain the defendant from interfering with the plaintiff’s possession of the schedule land.
3. The claim of the plaintiff is that her parents - Eshwaraiah and Dakshayanamma were Archaks in the temple of Sri Maruleshwara of Malalavadi Village, Mysore Kasaba, Mysore. Said temple is situate in land bearing Survey No.189 to the measuring 2 acres 28 guntas.
4. The parents of the plaintiff were cultivating the land and also performing pooja to the Deity in the said temple.
5. Eshwaraiah, father of the plaintiff had hereditary right of worship and they had filed an application before the Land Tribunal for grant of occupancy rights, which came to be allowed vide orders dated 17.10.1981 and occupancy rights was granted infavour of plaintiffs Mother – Dakshayanamma.
6. The plaintiff further contends that a Will was executed by Dakshayanamma on 04.08.1993 bequeathing the schedule property and also right to worship the Deity, to the plaintiff and her brothers Lokesh and Satish. Dakshayanamma died on 24.01.1998. The rest is interference by the defendant and construction of structure without permission and obstructing the plaintiff.
7. The defendant contested the matter and filed his written statement contending that he is a Trustee of Sri Maruleshwara Trust formed for the purpose of social well being. The Trust was formed for maintenance of the temple and villagers offered their prayers. In the year 1976, the villagers of Kannegowdana Koppalu had formed a Trust called “Kannegowdana Koppalu Sri Maruleshwara Temple Dharmadarshee Trust”, that came into existence under a registered Trust Deed dated 04.10.1976.
8. At that time, the land including the coconut garden around the temple measuring 500’ x 1000’ was granted by the then City Improvement Trust Board (CITB), Mysore, in favour of the Trust, by way of lease for a period of 99 years, as per the order bearing No.TBR.122/73-74 dated 06.03.1977. Thus, the defendant contended that he is not claiming personal interest over the schedule property, on the other hand, he is discharging his duty as a Trustee to maintain and look after the temple in the interest of public and the villagers of Kannegowdana Koppalu. The Mysore Urban Development Authority (MUDA) granted additional land measuring 335’ x 81’, towards western portion of the Trust property upto Adichunchanagiri Road, the necessary Lease Deed was executed and the possession was handed over.
9. The learned Judge was accommodated with oral evidence of PW1 – Jayamma - plaintiff and PW2 – Nagarathna with documentary evidence as per Exhibits-P1 to P23, on the side of the plaintiff and on the side of the defendant, the oral evidence of DW1 – Rangaiah defendant, with documentary evidence as per Exhibits-D1 to D15.
10. The suit filed by the plaintiff came to be dismissed by the V Additional First Civil Judge (Jr.Dn.), Mysore, vide judgment and decree dated 04.07.2006. The said judgment and decree was challenged before the Presiding Officer, Fast Track Court-II, Mysore, wherein the appeal was dismissed by judgment and decree dated 06.01.2011 passed in R.A. No.639/2010. The present appeal is preferred by the plaintiff against the said judgment and decree.
11. The present appeal was admitted on 23.07.2013 to examine and adjudicate the matter on the following substantial questions of law:
a. When the trial court while discussing the documents and evidence having accepted that plaintiff’s parents were Archaks and cultivators of land bearing Sy.No.189 of Malalavadi, whether it is justified while answering issues to deny the title and possession of plaintiff’s parents to suit schedule property?
b. Whether the lower appellate court was justified in not going into the discussion on the finding and be contend with the finding without looking into the discussion on the issues before deciding the points for considering in Regular Appeal?
12. This Court framed additional substantial questions of law as under:
i. Whether the suit for mandatory for and permanent injunction is maintainable in respect of temple?
ii. Whether the persons interested in the ownership of the property are entitled for the rights of ownership over the property acquired, the Government for public property till the amount of compensation is disbursed to them?
13. The learned counsel Sri. V.Padmanabha Kedilaya, appearing for the appellant/plaintiff, would submit that the defendant is known for his highhanded operations and has been atrocious against the appellant who is a poor lady depending on the schedule property.
14. Learned counsel based his submission on two limbs. Firstly there was no acquisition of the land in Survey No.189 and secondly, the ownership and possession of the property still lies with the plaintiff.
15. Further, learned counsel would submit that even if the land is acquired, it cannot be taken for granted when the appellant has become the owner of the property being a private individual and the registered Will dated 04.08.1993 was executed by her mother Dakshayanamma in favour of the plaintiff and her siblings.
16. Sri.R.A.Devanand, learned counsel for the defendant/respondent would submit that the suit is against public interest. He would further submit that the personal right or ownership over the schedule property is not claimed by the respondent. On the other hand, no doubt, it was claimed that the parents of the plaintiff and elders were in possession of the land in Survey No.189 of Kannegowdana Koppalu as tenants, later Form No.7 was filed by Eshwaraiah and it was granted to Dakshayanamma by virtue of the death of Eshwaraiah.
17. Learned counsel for the appellant would submit at this stage that, the rival application filed by the defendant came to be rejected by the Land Tribunal. Learned counsel for the respondent would submit that the landed property to the extent of 500’ x 1000’ along with coconut garden was granted by City Improvement Trust Board (CITB) in Survey No.189 to the Trust represented by the defendant. However, not for the defendant personally. It is also contended that additional land measuring 335’ x 81’ was granted by the Mysore Urban Development Authority (MUDA) and Exhibits- D1 to D9 would evidence and support the contention of the defendant that the schedule property or the land in Survey No.189 neither is under tenancy nor belong to the plaintiff.
18. In the overall circumstances of the case, suit is filed by the plaintiff seeking mandatory injunction to demolish the structure (school building) said to have been constructed by the defendant as a Trustee. Further, the relief of permanent injunction is also sought to restrain the defendant from interfering with the possession of the plaintiff.
19. The moot question would be, whether plaintiff is entitled for the absolute ownership and possession over the schedule property and also exercises the rights of ownership and possession over the Temple Deity and right to worship. Further, whether there could be an order of permanent injunction to restrain the defendant or any other person from entering into the Temple.
20. Learned counsel for the appellant would submit that the land, primarily was not acquired.
In the copy of the award marked as Exhibit-P7 dated 26.07.1972, Survey No.189 of Malalawadi Village, is very much found at page No.89 of the paperbook and further submit that the survey number mentioned therein is only a proposal and not acquisition. Regard being had to the fact that Exhibit-P7 is a document filed by the plaintiff and she is estopped from contending contrary to the contents of the documents under the doctrine of estoppel.
22. Further, the claim of the plaintiff is the Will said to have been executed by Dakshayanamma in favour of the plaintiff and her brothers. It appears the said testator was granted several other lands also in other Survey numbers, such as, in Survey No.182 to the extent of 4 acres 11 guntas, and other lands in addition to the present schedule property in Survey No.189 measuring 2 acres 28 guntas.
23. Learned counsel for the appellant would vehemently submit that the schedule land is very costly and valuable and the same is in the heart of the City and the Trust people including the defendant is trying to knock off the land.
24. In this connection, it is necessary to observe that the land after the enforcement of the Land Reforms Act, came to be vested and thereafter, tenants were allowed to file Form No.7 for grant of occupancy right. It is, in this connection, the mother of the plaintiff – Dakshayanamma was granted occupancy rights considering her husband’s Eshwaraiah’s tenancy and thereafter, succession by Dakshayanamma.
25. In this connection, it cannot be brushed aside that land was granted for occupancy rights by the Land Tribunal and later it was acquired by the Government like any other property, as per Notification bearing No.LAC 4 to 366/70-71 dated 26.07.1972 and marked as Exhibit-P7. The claim of the learned counsel for the appellant is that the land is under the ownership and possession of the plaintiff as a legatee.
26. Learned counsel relied upon the decision of the Hon’ble Supreme Court in Hafazat Hussain vs. Abdul Majeed and others reported in (2001) 7 SCC 189.
27. The claim of the defendant that he is a Trustee and the Trust is registered, and the schedule was granted on 06.03.1977. Learned counsel for the appellant would submit that the defendant’s application that was rejected by the Land Tribunal concludes that he has no right over the land in question.
28. Having submitted, the plaintiff has unequivocally gone on record by submitting that the application filed by Rangegowda and another were dismissed by the Land Reforms Appellate Authority, Mysore vide orders bearing No.LRF.MYS.Appeal.117/1987 dated 08.03.1988. Thus, it is admitted by the plaintiff that for the schedule property, the application of other claimants were rejected.
29. Learned counsel would make further submission that the land that was granted to the defendant is not in Survey No.189. It is necessary to place on record that the plaintiff at one stretch has gone on record by claiming that the acquisition proceedings are not complete and the amount is not disbursed and hence ownership continued with the plaintiff.
30. The said analogy of the plaintiff is totally against the established provisions of the law and it cannot be accepted. The acquisition of the land is beyond reasonable doubt and she cannot go on claiming charge over the schedule property in the form of ownership and possession in respect of the land that was acquired and allotted in furtherance of its object of acquisition.
31. The defendant, as stated above, is not claiming personal interest over the property or possession, Land was granted in two phases. First one by the City Improvement Trust Board to the extent of 500’ x 1000’ with Temple and the coconut garden attached to it.
32. During the second phase, the defendant was granted land by Mysore Urban Development Authority to the extent of 335’ x 8f1’, which is confirmed as per Exhibit-D10. The Mysore Urban Development Authority, as per Exhibit- D10, has confirmed the grant of total 82000 sq.ft. of land for improvement of temple and construction of kalyana mantapa, on a lease for a period of 99 years, on a rental of Rs.50/-.
33. Thus, the plaintiff appears to have made up her mind to make benefit out of the costly land which did not belong to her, as it is acquired and granted to a Trust, represented by the defendant. In the circumstances, the grounds that are urged for ownership, apart from being not maintainable in law, expresses the intention of the plaintiff to claim the schedule property definitely not for good reasons.
34. Regard being had to the fact, that the scope of Land Reforms Act in the case is, the land was under tenancy, however, it was granted to Dakshayanamma W/o Eshwaraiah and the mother of the appellant and land also was acquired by the Government for public purposes and that has been fulfilled.
35. Though the Court is not happy over the conduct of the learned counsel representing the appellant, considering the age and the profession, he is properly advised and the matter is dropped at this stage.
36. The learned Trial Judge in O.S. No.310/2004 and the learned appellate Judge in R.A. No.639/2010 for their sound and justifiable reasons have passed a right and meaningful order, which do not call for interference. I do not find any illegality or infirmity or irregularity in both the judgments. The substantial questions of law and the additional questions of law framed in this appeal are answered accordingly.
38. For the foregoing reasons, the present appeal deserves to be dismissed with costs throughout. Accordingly, it is dismissed with costs throughout.
Sd/- JUDGE SJ