S. Ramu vs G.S. Honnappa and Others

A.V. Chandrashekara, J.—This appeal is directed against the judgment of dismissal of suit in O.S. No. 1/1999 by the learned Additional District Judge, Shimoga on 17.07.2007. Being aggrieved by the dismissal of the said suit, the lone plaintiff has filed this appeal. Brief facts leading to this case are found in the succeeding paragraphs. The appellant was the defendant No. 19 in the suit filed in O.S. No. 1/1999. Sri D Hanumanthappa, Mariyappa, G.N. Siddappa and G. Nagappa had filed an application u/s 92 of CPC seeking leave to file a scheme suit u/s 92 of CPC. After the grant of leave, petition came to be registered as suit. The appellant was one among the defendants in the said suit. After the death of four plaintiffs, he got himself transposed as a plaintiff and that is how he was the 5th and the last plaintiff in the said suit. The suit came to be filed in respect of a temple property i.e., Nagappa Temple bearing Assessment No. 54 on the file of the City Municipality, Shimoga situated in Nagappa Street, Gandhi Bazaar, II Cross, Shimoga City bounded on the East by vacant space of Thukkojappa and Bharmojappa, West-Municipal Road, South-Newly formed road, North-Nagappana Keri Road. Suit had been filed against 25 persons inclusive of the 5th plaintiff. The reliefs sought in the plaint were as under:

a) To remove the defendants 1 to 14 as trustees.

b) To appoint new trustees for the proper management of the schedule institution.

c) For direction to defendants 1 to 16 to deliver possession of the trust property in their possession and directions to defendants 17 to 25 to hand over possession of any property in their custody.

d) Directions to the defendants 1 to 16 to render proper accounts of the trust property.

e) Settling a scheme for proper administration of the schedule institution.

f) For court cost and such other reliefs that the Hon''ble Court may deem fit to grant in the circumstances of the case.

The gist of the plaint averments would disclose plaintiffs 1 to 4 were persons belonging to Kuruba caste of Hindu religion and that all the members of Kuruba caste and other castes in Shimoga City were the devotees of the temple situated in the suit property. According to them, it is an old temple with sufficient devotees from many communities and as such, it is a public religious institution. Public as well as members from Gutti Family have made donations and offerings to the temple and that rent from the buildings put up adjacent to the temple in the suit property is an additional source to the temple. It is further pleaded that poojas have been performed and the income from the temple is being used for religious purposes. A committee with Sri. S.S. Bharmappa, as the President was looking after the affairs of the temple till 1979 and thereafter, a new Committee is formed by defendants 1 to 14 with 1st defendant as the President and 2nd defendant as Secretary.

In the year 1964, according to the plaintiffs, a dispute arose when defendant Nos. 12, 23 and one Gutti Hadappa started claiming that it was the property of their family A suit filed by them for declaration of their title and permanent injunction in O.S. No. 51/1964 on the file of Additional Munsiff Court, Shimoga, was decreed and the judgment and decree passed in O.S. No. 51/1964 was set aside in appeal in R.A. 170/1968 by dismissing the suit and this was confirmed by the Hon''ble High Court in RSA 284/1972. Among the management committee, defendants 1 to 3, 5, 8 to 12, 15 and 16 are from Gutti family and are claiming that the property is their family property. Defendants 17 to 25 competed with other defendants and have formed their own society claiming the suit property and the temple built thereon are public religious property.

Defendants 2 to 9 filed written statement. They have denied all the material averments found in the plaint. According to them, the question raised in R.A. No. 170/1968 was not decided and that the learned Appellate Judge has not opined as to whether the temple is a private one or a public religious institution. According to them, they have formed a registered Trust on 15.05.1982 and that Committee formed by defendants No. 17 to 25 was a bogus one and that the registration of that committee consisting of defendants 17 to 25 has been cancelled by the Registrar of Societies. It is their case that the members of the Gutti family have put up godowns and have been collecting rents from the tenants. According to them, Sri. Ramu the transposed plaintiff is a close relative of Gutti family and was living with G.N. Honnappa and G.N. Nagarajappa and Sri. Ramu and that he had been entrusted with collection of rents from tenants and he had committed mischief and therefore he had been asked not to collect the rents. It is further averred that thereafter, he started residing separately. It is further pleaded by them that the private Trust formed by them has been managing the suit properties and Temple and hence suit is misconceived. They have prayed for dismissal of the suit.

On the basis of the above pleadings following issues came to be framed:

Whether the plaintiffs prove that the schedule Institution is a public Institution of the Kuruba community and other devotees?

Whether the plaintiffs further prove that the defendant Nos. 1 to 14 are in management of the Institution as its trustees?

Whether the plaintiffs further prove that the defendant Nos. 17 to 25 formed a society on 15.5.1982?

Whether the plaintiffs prove the cause of action for filing the suit?

Whether the plaintiffs are entitled for the reliefs as sought in the prayer column?

To what reliefs the parties are entitled?

On behalf of the plaintiff, 5th plaintiff is examined as PW1 and four more witnesses have been examined and 12 exhibits have been got marked. On behalf of the defendants, defendant No. 2 has been examined as DW2 and in all 20 exhibits have been got marked. After hearing the arguments, learned Judge has answered issue No. 1 in the negative, issue Nos. 2 and 4 have been held in favour of the plaintiff, issue No. 3 and additional issue No. 1 have been held to be not survived for consideration.

Several grounds have been urged in the appeal memo. It is contended that the learned Judge has erred in answering issue No. 1 in the negative by giving a go-bye to the judgment and decree of R.A. No. 170/1968. It is contended that the said judgment is in the nature of res-judicata insofar as the claim of defendants 1 to 16 are concerned. It is contended that the Trial Court has adopted a wrong approach to the real state of affairs and that other issues have not been properly concluded. It is further contended that the Trial Court has not at all considered the oral evidence in right perspective and that it has erred in coming to the conclusion that a scheme suit cannot be continued by a single plaintiff. Having heard the arguments of the learned advocates and perusing the evidence and pleadings, following points arise for our consideration:

Whether the learned Trial Judge is justified in holding that a scheme suit u/s 92 of CPC cannot be prosecuted by a single plaintiff?

Whether the findings in R.A. No. 170/1968 given by the learned appellate Judge are in the nature of res-judicata insofar as it relates to defendants 1 to 16?

Whether any interference is called for by this Court and if so, to what extent?

Reasons

Petition had been filed u/s 92(i) of CPC seeking leave to file a suit in respect of a public religious institution by 4 persons and ultimately leave was granted. As a result of the same, scheme suit was registered u/s 92 of CPC. During the pendency of the suit, all the four plaintiffs died and one of the defendants got transposed as plaintiff. Two persons having interest in the trust or the Advocate General may institute a suit Institution of suit is dependant on the leave to be granted u/s 92(i) of CPC and in this regard atleast two persons having interest must approach the Court. After having obtained the leave, if one of them dies, the suit cannot be dismissed as not maintainable. Court must see as to whether there is any defendant who is in favour of the public trust and if found, Court must transpose such a defendant to be one of the plaintiffs to prosecute the suit.

In the present case, one of the defendants among defendant: Nos. 17 to 26 i.e., D19, chose to get himself transposed. The entire defence of defendants No. 17 to 26 is similar as all of them have contended that it is a public temple and that they have been managing the suit properties and the Temple. Having not made such an attempt the Court cannot, at the end of the trial, say that suit is not maintainable as only plaintiff has survived and he cannot in law prosecute the suit.

Admittedly, the Court of Civil Judge in R.A. 170/68 has specifically held that temple is not the private property of Gutti family but a public temple and that public at large were offering the prayers. The role of a Court dealing with a suit u/s 92 of CPC is definitely different from that of dealing with ordinary suit of Civil in nature as the principal Court of Original Civil Jurisdiction in the District will be dealing with the property of a public trust. If really the suit was not maintainable, according to the learned judge, he should have dismissed the same, after the present appellant became the lone plaintiff. But having allowed the suit to proceed and allowed the parties to lead evidence, it cannot be held that suit is not maintainable. It is to be seen that PW-2 has supported the case of his plaintiff that it is a public temple. Hence we are of the opinion that the learned judge is not justified in holding that lone plaintiff cannot prosecute the present scheme suit. Hence we answer point No. 1 in the negative.

Point No. 2

The learned judge has virtually ignored the findings in RA 170/68. The learned appellate judge has clearly held that the temple is not the private property of Gutti family. It is further held that the Town Municipality had exempted tax as it is a property belonging to endowments and charitable institution. Such a clear finding is found in the last lines of the page 11 and early part of page 12 of the judgment in RA 170/68. It was the case of the contesting defendants in O.S. 51/64 that the property was a public temple. But on the strength of the impugned judgment in O.S. 1/99, the respondents 1 to 15 contend that the suit property is their family property. In fact the RSA filed against the judgment in RA 170/68 came to be dismissed and hence the finding in RA 170/68 has become final. Thus the findings on issue No. 4 in O.S. 51/64 reversed in R.A. No. 170/68 is to the effect that the suit property is a temple property. Thus the finding in R.A. No. 170/68 is a clear res-judicata so far as the stand of the respondents 1 to 15 herein.

The learned counsel for the contesting respondents has argued that the question of res-judicata is not raised before the Trial Court and therefore, the same cannot be urged before this Court. We are unable to accept the said contention for the simple reason that sufficient documentary evidence has been placed on record in regard to the finding given in R.A. No. 170/1968 by the Addl. Civil Judge, Shimoga and the confirmation thereof by the Hon''ble High Court of Karnataka in RSA No. 284/1972. The certified copies of the judgments in R.A. No. 170/1968 and RSA No. 284/1972 are forthcoming vide Exs. P1 and P2. The respondents in R.A. No. 170/1968 that means the plaintiffs in O.S. No. 51/1964 which was pending on the file of the Court of Munsiff, Shimoga viz., Nagappa, S/o, Guthi Siddappa and Nagaraja S/o. Guthi Honnappa are defendants in O.S. No. 1/1999. The claim made by the plaintiffs in O.S. No. 51/1964 was that the property and the Temple was the property of Gutti family and that it was not the public property. Same contention is taken up by them in the written statement filed in O.S. No. 1/99 also. Therefore, the issue involved in both the cases art. identical and that earlier categorical finding has been given by the learned Addl. Civil Judge in R.A. No. 170/1968 stating that the property belonged to the Temple while answering point No. 3 formulated in the appeal. Thus the principles of res-judicata u/s 11 of CPC are aptly applicable to the facts of the case. Hence we answer point No. 2 in the affirmative.

Point No. 3

In view of our finding that the suit being a scheme suit could be continued by the lone plaintiff u/s 92 of CPC in the present case and in view of our findings that defendants 17 to 25 are also in favour of treating the suit property as a temple property, the trial Court needs to frame proper scheme u/s. 92 of CPC. Anyhow nothing comes in the way of the Court to give opportunity to the defendants or anybody among them to get transposed as plaintiff or plaintiffs also. Hence, the suit is to be remitted to the trial Court for framing necessary scheme for effective management of the temple and its properties mentioned in the suit schedule of O.S. No. 1/99. Accordingly, absolute interference is called for and needs to be remanded.

ORDER

Appeal is allowed.

The mater is remitted to the trial Court for framing suitable scheme for effective management of the Nagappa Temple and suit properties as per u/s 92 of CPC.

In the light of the facts and circumstances of the case, we pass no order as to costs.

The parties shall appeal before the Court on 3rd February 2014 without further notice and the suit be disposed off as expeditiously as possible within an outer time limit of nine(9) months thereafter, without fail.

Registry is directed to send the records to the trial court with a copy of the judgment at the earliest.