Partly allowed

State of Karnataka v. Sri Seebi Narasimhaswamy Temple

Karnataka HC7 Jul 2021RFA/568/2012

Case brief

AI extract

What is this about?

High Court allowed civil appeal partly, setting aside ex-parte decree. Court remanded matter for retrial to allow defendants to file written statement and cross-examine plaintiffs, admitting additional documentary evidence relevant to disputed title and prior litigation.

What did the court decide?

Impugned judgment set aside; matter remanded to Trial Court for retrial; defendants allowed to file written statement within four weeks; appellants to pay costs of Rs.30,000 to plaintiffs.

State of Karnataka Vs Sri Seebi Narasimhaswamy Temple — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^th DAY OF JULY, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.F.A.No.568/2012

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BETWEEN :

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STATE OF KARNATAKA REP. BY ITS PRL. SECRETARY DEPARTMENT OF REVENUE M.S.BUILDING, AMBEDKAR VEEDHI BANGALORE-01

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THE DEPUTY COMMISSIONER TUMKUR DISTRICT

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THE ASSISTANT COMMISSIONER TUMKUR SUB-DIVISION, TUMKUR

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THE TAHSILDAR TUMKUR DISTRICT ...APPELLANTS

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(BY SRI ARUNA SHYAM M., AAG., A/W SMT.H.R.ANITHA, HCGP.)

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AND :

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SRI SEEBI NARASIMHASWAMY TEMPLE SEEBI KSHETHRA S.NO.10, CHIKKASEEBI VILLAGE, BELLAVI HOBLI, TUMKUR TALUK & DISTRICT BY ITS HEREDITARY DHARMA KARTHA KARNIKA NALLAPPA

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KARNIKA NALLAPPA S/O LATE T.K.LAKSHMINARASAIAH DANDAPANAIAH HEREDITARY DHARMAKARTHA SEEBI NARASIMHASWAMY TEMPLE R/O S.NO.10, CHIKKASEEBI VILLAGE, BELLAVI HOBLI, TUMKUR TALUK. …RESPONDENTS

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(BY SRI S.S.NAGANAND, SENIOR COUNSEL A/W SRI A.MADHUSUDHANA RAO, ADV. FOR C/R.)

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 17.12.2011 PASSED IN O.S.NO.10/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND CJM, TUMKUR, DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the defendants-State of Karnataka challenging the judgment and decree dated 17.12.2011 passed by the learned Addl. Senior Civil Judge and C.J.M., at Tumkur whereby O.S.No.10/2011 filed by the plaintiffs has been decreed.

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For the sake of convenience the parties are referred to, as per their status before the Trial Court.

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The Plaintiffs instituted the suit seeking for

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declaration that they are the absolute owners in possession of the suit schedule property, to restrain the defendants from interfering with their possession and enjoyment of the suit schedule property and to grant mandatory injunction, to direct the defendant No.4 to mention the name of plaintiff No.1 in the record of rights at column Nos.9 and 12 pertaining to the suit schedule property.

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The suit schedule property is part and parcel of the land bearing Sy.No.10, measuring 20 acres 13 guntas, consisting of Sri Seebi Narasimhaswamy Temple, Gaja Sarovara, Eucalyptus and other trees, situated at Chikka Seebi Village, Bellavi Hobli, Tumkur Taluk and District bounded on East: Lands in Sy.No.14, 15 and 19, West: National High way No.4, North: Sy.No.11, South: Sy.No.9 and National Highway No.4.

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The plaint averments are that the plaintiff

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No.1 is an ancient temple which is managed by plaintiff

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No.2 who is the hereditary Dharmakartha of plaintiff No.1. Plaintiff No.1 temple was constructed in the land measuring about 20 acres 13 guntas in Sy. No.10 of Chikka Seebi village, Bellavi Hobli, Tumkur Taluk and District which was originally acquired by the ancestors of Plaintiff No.2 under the sale deed in the year 1797.

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The said sale deed was executed in favour of Sri.Puttannaiah, the ancestors of plaintiff No.2, by one Sri.Hucche Gowda S/o Chenne Gowda under which half share of the Gowdike lands in Chikka Seebi village was sold by the vendors. The said document was not registered as there was no law prevalent governing the registration of the documents. The ancestors of plaintiff No.2 Sri. Lakshminarasimhaiah, Sri.Puttannaiah and

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Sri. Nallappa constructed the temple in the suit schedule property. Sannad was also issued by His

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Highness the then Maharaja of Mysore Sri. Krishnaraja Wodeyar-III on 15.5.1811 in favour of Sri. Lakshminarasimhaiah, Sri.Puttannaiah and Sri.

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Nallappa. In addition to the plaintiff No.1 temple, the ancestors of plaintiff No.2 had constructed other temples also and for the maintenance of these temples certain villages including Chikka Seebi village were given as Inam by the then Maharaja of Mysore as per the sannad. In the Mysore Gazetteer published in the year 1897 there is a reference to plaintiff No.1 temple and also in respect of the annual festival which was conducted in the said temple. The said temple was constructed pursuant to the direction issued by the Lord Narasimha himself who had called upon Sri.Nallappa to construct the temple in his vision/dream. It was further averred that in the record of rights there is a clear mention about the plaintiff No.1 temple and Gaja Sarovara (Temple Pond) located in the suit schedule property. The same is also reflected in

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the index of lands. A Notification was also issued by the Government of Karnataka dated 8.5.1979 calling for objections to declare the structure of the temple as an ancient and protected monument and confirming that the suit schedule property belongs to plaintiff No.1 temple. In addition to the ancient temple and the Gaja Sarovara, there are several eucalyptus and other trees in the suit schedule property. As the said land was not being cultivated, in the record of rights, it was mentioned as kharab land. Since in the record of rights suit schedule property was indicted as sarkari kharab, the same was challenged by respondent No.2 before the appropriate revenue authorities.

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In order to hold Brahmotsava during the

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month of February 2011, the plaintiff No.2 was about to cut and remove the eucalyptus trees. At that time the officials of the defendant No.4 raised objections and interfered with the arrangements and preparations

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made for the Brahmotsava and the Jathra. Alleging interference of the defendants with the smooth

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functioning of the Brahmotsava and the Jathra, the plaintiffs sought for the relief of declaration and injunction.

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Dispensation of statutory notice under

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Section 80(1) of CPC was sought by filing a separate application and the same was allowed.

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No written statement was filed by the

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defendants though put in appearance. The applications filed by some impleading applicants to implead them as party-defendants were rejected after contest.

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The following points were framed by the Trial

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Court for consideration:

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Whether plaintiffs prove that they are the absolute owners in possession of the suit property?

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Whether plaintiffs further prove that the defendants without having any right have interfered in the peaceful possession and enjoyment of the suit property by the plaintiffs?

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Whether plaintiffs further prove that they are entitled for the reliefs as prayed?

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What order?

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Plaintiff No.2 was examined as PW-1 and

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got marked Exs.P1 to P12. Since there was no representation for the defendants, cross-examination was taken as Nil.

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The Trial Court dismissed the suit declaring

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the plaintiffs to be the owners in possession of the suit schedule property restraining the defendants from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property.

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Being aggrieved by the said judgment and

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decree, the defendants have preferred this appeal.

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In the present proceedings, I.A.No.2/2020

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has been filed by the defendants under Order 41 Rule 27 of CPC seeking permission to produce additional documents/evidence.

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Learned Addl. Advocate General appearing for the defendants/appellants argued that no sufficient opportunity was provided to the defendants to file the written statement or to cross examine the plaintiffs. The Trial Court proceeded to pass the judgment and decree in a hasty manner denying reasonable opportunity to the defendants to put forth the defence.

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Learned counsel referring to document Nos.2 and 3 in O.S.No.39/1956 (plaint and judgment and decree copy respectively) filed by

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Sri.T.K.Lakshminarasaiya and others along with

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I.A.No.2/2020 against the Deputy Commissioner,

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Tumkur District and another submitted that the plaintiffs have sought for declaration for management of the Seebi Temple affairs as hereditary Dharmakarthas and not liable to be removed, seeking for cancellation of the order of the Government dated 2.7.1955 and for permanent injunction restraining the defendants therein from interfering in any way with the management of the institution viz., Narasimhaswamy Temple at Seebi, Tumkur, by the plaintiffs.

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It was argued that this material aspect was suppressed by the plaintiffs in the present suit and thereby committed fraud. The suit is hit by the principle of res judicata .

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In the earlier suit, O.S.No.39/1956, the Trial Court rejecting the relief of permanent injunction sought for restraining the defendants from interfering

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with the plaintiffs management of the institution, partly decreed the suit.

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Nextly, it was argued that the suit schedule property is a protected monument under the Karnataka Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961 (‘Act 1961’ for short). The Deputy Commissioner as the ‘Authority’ acting under the Act, 1961 was a necessary and proper party to adjudicate upon the lis between the parties effectively, as such the suit is bad for non joinder of parties. It was further submitted that in O.S.No.39/1956 the plaintiff No.2 herein was impleaded as the L.R of the deceased plaintiff therein Sri. T.K.Lakshminarasaiah. Despite the same, the same was suppressed by the plaintiffs.

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It was further argued that Notification dated 30.4.2003 has been issued by the Government of Karnataka exercising the powers under Section 23 of the Karnataka Hindu Religious and Charitable

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Endowments Act, 1997 (‘Act,1997’ for short) and the Karnataka Hindu Religious Institutions and Charitable Endowments Rules, 2002 was upheld by the Writ Court in W.P.No.31937/2003 and connected matters but got reversed before the writ appellate court. The same is pending consideration before the Hon'ble Apex Court. By virtue of the interim order passed by the Hon'ble Apex Court, the said Act of 1997 is in operation. Inviting the attention of this Court to Section 59 of the said Act, 1997, learned counsel argued that the Trial Court ought not to have decided the question affecting the plaintiff No.1 temple until the notice has been issued on the Deputy Commissioner and Asst. Commissioner having jurisdiction. It was submitted that as per Section 68 of the Act, 1997, the jurisdiction of the Civil Court is excluded to decide or to deal with any question coming under the purview of the Act, 1997.

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20. Learned Senior counsel Sri.S.S.Nanganand

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appearing for the plaintiffs submitted that the plaintiff No.1 temple was formed by the ancestors of the plaintiff No.2. Lands measuring 20 acres 13 guntas in Sy.No.10

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of Chikka Seebi Village, Bellavi Hobli, Tumkur Taluk and District was purchased by the ancestors of plaintiff No.2 in the year 1797 by a sale deed executed by Sri.Hucche Gowda, Sri.Basave Gowda, Sri.Bommana Gowda and Sri.Korada Bommanna Gowda. Subsequent

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to the purchase of land, the ancestors of defendant No.2 had constructed the temple in the suit schedule property by installing various deities and arranged for the regular worship by endowing the suit schedule property to the deity Sri. Seebi Narasimhaswamy besides building a pond now called Gaja Pushkarani. His Highness Sri.Krishnaraja Bhadur III was pleased to give three villages by name Chikkaseebi, Sorekunte and Jodidevarahalli by issuing a Sannad dated 15.5.1811 wherein it was reiterated that plaintiff No.1 temple, lake

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in Sorekunte village and a tank in Chikkasebi village were built by the ancestors of plaintiff No.2. The Gazetteer of India, Mysore State, Tumkur District published in the year 1969 reiterated that plaintiff No.1 temple was built by the ancestors of plaintiff No.2. Government of Karnataka has issued a Notification dated 8.5.1979 calling for the objections of the plaintiff No.2 through the Tahsildar, Tumkur Taluk against the Notification of Sri.Narasimha Swamy Temple under the Act, 1961 wherein it is stated that plaintiff No.2 is the owner of the suit schedule property as per the Sannad issued by the then Maharaja of Mysore His Highness Sri. Krishnaraja Wodeyar Bahadur-III. The plaintiffs had challenged the Constitutional validity of the Act 1997 which came to be dismissed by a common order dated 9.9.2005 by the learned Single Judge and on further appeal, the entire Act has been struck down. The State Government has challenged the said order which is pending consideration as such the provisions

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of the Act 1997 are not applicable to the facts of the present case.

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In O.S.No.39/1956 the declaratory relief of

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worshipping the deity was claimed whereas in the present suit a large relief of declaration of title has been sought for. Hence, the principles of res judicata are not applicable and the said suit is no way relevant for adjudicating the rights of the parties in the present case. Hence, there is suppression of material facts.

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Learned counsel further submitted that sufficient opportunity was provided to the defendants

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to file the written statement and to cross examine the plaintiffs. Despite providing sufficient opportunity to the defendants, they have failed to avail the opportunities to file the written statement and to cross examine the plaintiffs. In such circumstances, no fault can be found with the impugned judgment and decree. In the grounds of appeal, the grounds now urged by the

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learned Additional Advocate General are not clear. The

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documents now proposed to be placed on record on which much emphasis is placed by the learned counsel for the plaintiffs have no relevancy for deciding the appeal. Though the appeal was filed in the year 2012, the additional documents are now placed before the court in the year 2020 sans offering tenable explanation. Any of the documents now placed along with I.A.No.2/2020 cannot be looked into at this juncture. Exs.P1 and P2 clearly demonstrate the title of the plaintiffs. The land which is not cultivable if indicated in the revenue record as kharab land, the same would be for the purposes of exempting the owner of that land paying the taxes and not to confer any title on the Government. Against the revenue records showing the schedule property as Government land, litigation is pending before the revenue authorities. Referring to Section 24 of the Mysore Religious & Charitable Institutions Act, 1927, it was submitted that

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the said provision clearly exempts the operation and application of Chapter II and III of the Act. Chapter II says about the control and management of the Muzrai institutions and Chapter III about public, religious and charitable institutions other than Muzrai institutions. i.e., sections therein, shall not apply, which applies to Muzrai institutions and public religious and charitable institutions other than Muzrai institutions.

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On these grounds, learned Senior counsel sought for the dismissal of the appeal confirming the impugned order passed by the Trial Court. Learned Senior counsel submitted that the Trial Judge after appreciating the entire material on record has rightly decreed the suit and the same does not call for any interference.

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We have heard the learned counsel appearing for the parties and perused the material on record.

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The points that arise for our consideration

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are:-

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1) Whether additional documents /evidence produced by the defendants along with I.A.No.2/2020 is liable to be taken on record?

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2) Whether the judgment and decree passed by the Trial Court impugned herein is justifiable?

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Re. Point No.1

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This application - I.A.No.2/2020 has been

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filed by the defendants along with the following

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documents:-

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1) Order of the Deputy Commissioner, Tumkur District, Tumkur dated 24.08.1954;

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2) Copy of the plaint in O.S.No.39/1956;

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3) Order dated 03.08.1959 passed in O.S.No.39/1956;

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4) Record of Rights;

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5) Gazette Notification dated 30.04.2003; 6) Gazette Notification dated 29.09.2012; 7) Copy of the order dated 09.09.2005 passed in W.P.No.43100/2003 and connected matters; Copy of the judgment dated 08.09.2006 passed in W.A.No.3511/2005.

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Objections are filed by the plaintiffs to I.A.No.2/2020 and strongly opposed by the learned Senior counsel inasmuch as taking the additional evidence on record.

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Document No.1 is the order of the Deputy Commissioner, Tumkur District, Tumkur, dated 24.08.1954 regarding taking over the management of the affairs of plaintiff No.1 - Institution. Document No.2 is the plaint copy of O.S.No.39/1956 filed by the original plaintiff – T.K. Lakshminarasaiya and others

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against the Deputy Commissioner, Tumkur District, Tumkur and another seeking for the following reliefs:-

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“The plaintiffs pray for a decree after declaring that the plaintiffs are entitled to manage the Seebi Temple affairs as hereditary Dharmakarthas and not liable to be removed;

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(i) for cancellation of the order of the Government in No.R.8-5200/Muz.83-55-2 Bangalore dated 2^nd July 1955 made known to plaintiffs on 21.10.1955 as illegal and improper;

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(ii) for a permanent injunction restraining the defendants from interfering in any way with the management of the institution viz., Narasimhaswamy Temple at Seebi, Tumkur.

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The plaintiffs also pray that the defendants may be directed to pay plaintiffs their costs of this suit and grant them such relief or reliefs as would appear just and proper to grant in the circumstances of the case.”

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In the said suit, plaintiffs specifically contended that the

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plaintiff No.1 - temple is a Muzrai Institution.

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Document No.3 is the judgment and decree dated 03.08.1959 passed in O.S.No.39/1956 wherein the permanent injunction sought by the plaintiffs therein restraining the defendants from interfering with the plaintiffs’ management of the temple/institution was rejected. It was categorically observed that it is not possible to grant plaintiffs a declaration to the effect that they cannot at all be removed from the hereditary Dharmakarthas to manage the plaintiff No.1 - temple. Because in cases where there has been gross mismanagement, it has already been noticed that after formal inquiry, if it is proved that there is gross mismanagement, then the plaintiffs are liable to be deprived of the possession and management of the temple under Sections 17 and 18 of the Mysore Religious and Charitable Institutions Act, 1927. Thus, the suit was decreed in part holding that the order of the Government dated 02.07.1955 is not legal and

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proper, that the plaintiffs are entitled to take over the possession of the temple and manage the same. The said judgment has reached finality. It is significant to note that during the pendency of the said suit proceedings, the original plaintiff - T.K. Lakshminarasaiya died and his legal representatives were brought on record. Plaintiff No.2 herein was arrayed as plaintiff No.1(a). Though the learned Senior counsel argued that this judgment and decree passed in O.S.No.39/1956 has no bearing to the facts of the present case, we are not inclined to accept the same for the reason that the very same temple was the subject matter of the suit wherein the plaintiffs contended that it is Muzrai institution and sought for the declaration to manage the temple office as hereditary Dharmakarthas and not liable to be removed. It is seen from the plaint at document No.1 that there is no whisper regarding the title to the suit property as now claimed by the plaintiffs.

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Similarly, document No.4 - record of rights

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which discloses the suit property as Sarkari Karab also requires to be proved in accordance with law.

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Under the scheme of the Code of Civil Procedure no doubt the parties are required to address their evidence before the Trial Court but in certain exceptional circumstances additional evidence can be adduced before the appellate Court, as provided under order 41 rule 27 of the code which reads thus:

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“ 27. Production of additional

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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—

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(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

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(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence,

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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

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(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.

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(2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission.

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In Union of India Vs. Ibrahim Uddin and

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another reported in (2012)8 SCC 148 , this Court has held as under:

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“ 49. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be

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adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced……”

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Now on the anvil of what has been stated above, the documents now proposed to be produced would be relevant for pronouncing the judgment or for the substantial cause having regard to the peculiar nature of the case where large extent of lands are involved against which the appellant-State Government is claiming its rights on the basis of certain material

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documents which is alleged to be suppressed by the plaintiffs resulting in the impugned judgment and decree passed by the Trial Court.

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The vital aspects of filing of the earlier suit in O.S.No.39/1956 being suppressed by the plaintiffs which have now been placed by way of the additional evidence certainly has relevancy to adjudicate the dispute between the parties. Hence, additional documents requires to be considered subject to providing an opportunity to the other side.

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The matter necessarily requires a full –

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fledged trial and cannot be adjudicated in this appeal without providing an opportunity to the plaintiffs to meet the contention of the appellants raised in I.A.No.2/2021. We are conscious that no order of remand could be passed routinely. But the peculiar facts and circumstances of the case herein, certainly warrants remand for the discussions made infra.

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35. In the case of Corporation of Madras and

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another vs. M. Parthasarathy and others reported in (2018) 9 SCC 445 , the Hon’be Apex Court has held that once additional evidence is permitted at appellate stage, other side must be given opportunity to lead rebuttal evidence to counter additional evidence. Appellate courts have two options viz., (i) to take recourse remanding entire matter under Order 41 Rule 23-A for retrial, or (ii) to make limited remand under Order 41 Rule 25 by retaining main appeal with itself so that parties can lead evidence on particular issues in light of additional evidence and then to decide main appeal on merits.

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36. The former option would be appropriate in

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the present case since no written statement is filed by the defendants. The matter requires a re-trial permitting the defendants to file the written statement. It is well settled that even in the circumstances where the written

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statement is not filed, the Court should proceed cautiously and exercise its discretion in just manner even in absence of written statement. On the failure of filing of the written statement, passing of uncontested judgment merely based on the affidavit evidence filed by the plaintiffs without recording proper reasons would result in miscarriage of justice.

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In the case of C.N. Ramappa Gowda vs.

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C.C. Chandregowda reported in (2012) 5 SCC 265 , the

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following core questions fell into consideration of the Hon'ble Apex Court:

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i) Whether the High Court exceeded its jurisdiction by directing the trial court for retrial of the suit and permitting the defendants to file the written statement and documents without assigning any justifiable and legally sustainable reason particularly when the respondent – defendants were admittedly served with the summons

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and were also duly represented by their advocate in the trial court? ii) Whether the defendants who had chosen not to file written statement in spite of several opportunities granted by the trial court, could be granted fresh opportunity by the High Court to file written statement and order for retrial resulting into delay and prejudice to the plaintiff from enjoying the fruits of the decree in his favour? iii) Whether the trial court before whom the defendants failed to file written statement in spite of repeated opportunities could straightaway pass a decree in favour of the plaintiff without entering into the merits of the plaintiff’s case and without directing the plaintiff to lead evidence in support of his case and appreciating any evidence or in spite of the absence of written statement, the trial court ought to try the suit critically appreciating the merits of the plaintiff’s case directing the plaintiff to adduce evidence in support of his

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own case examining the weight of evidence led by the plaintiff?

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The aforesaid questions are answered

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confirming the order of the High Court impugned therein, whereby the judgment and decree of the Trial Court was set aside remanding the matter to the Trial Court for a de novo trial after permitting the respondent-defendant therein, to file the written statement. Relevant paras are extracted hereunder:

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“ 26. It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the Court can conveniently pass a judgement and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the Court to record an ex-parte judgement without directing the

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plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex-parte judgement although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceeding which hardly promotes the cause of speedy trial.

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27. However, if the Court is clearly of the view that the plaintiff’s case even without any evidence is prima facie unimpeachable and the defendant’s approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court who is seized of the trial of the suit.

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29. It is a well-acknowledged legal dictum that assertion is no proof and hence, the burden lay on the plaintiff to prove that the property had not been partitioned in the

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past even if there was no written statement to the contrary or any evidence of rebuttal. The trial court in our view clearly adopted an erroneous approach by inferring that merely because there was no evidence of denial or rebuttal, the plaintiff’s case could be held to have been proved. The trial court, therefore, while accepting the plea of the plaintiffappellant ought to have recorded reasons even if it were based on ex-parte evidence that the plaintiff had succeeded in proving the jointness of the suit property on the basis of which a decree of partition could be passed in his favour.”

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This dictum would be squarely applicable to the facts of the present case.

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Re. Point No.2

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In order to answer this point, it is necessary to scan through the order sheet of the Trial Court. The order sheet of the Trial Court discloses that the plaint was presented on 17.01.2011. Case was taken up on board on 18.01.2011. I.A.No.2 for dispensing the

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service of statutory notice under Section 80(2) of CPC was allowed on 19.01.2011. Notice to defendant No.1 was issued on 20.01.2011. On 27.01.2011, learned counsel appearing for the plaintiffs has filed a memo for having taken suit summons to defendants through hand summons. It is recorded that “ defendants called out, absent. RPK returns SS to defendant No.1 with a shara that it is served. D1 to D4 called out absent, placed ex-parte. To hear call on 28.01.2011 ”. On 28.01.2011, the Government Pleader has filed a memo of appearance and I.A.No.6 was filed under Order 9 Rule 7 of CPC. It has been recorded that “RPK submits to allow. Hence I.A.No.6 allowed. Order placing D1 to D4 ex-parte is set aside.” On the same day, some devotees of the temple filed I.A.No.7 under Order 1 Rule 10(2) of CPC and thereafter the matter was directed to be listed on 01.02.2011 to enable the learned counsel for the plaintiffs to file objections to I.A.No.7. Objections were filed to I.A.No.7 on 01.02.2011. The matter was again

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called on 04.02.2011, 05.02.2011 and 10.02.2011.

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I.A.No.8 was filed under Order 1 Rule 10(2) of CPC on 04.02.2011. The orders were passed on 14.02.2011 rejecting I.A.Nos.7 and 8 filed by the applicants under Order 1 Rule 10(2) of CPC. On 18.02.2011, injunction order was passed by the Trial Court restraining the defendant Nos.1 to 4 from interfering with the Jatra till it is concluded however, clarifying that the order shall not authorize the plaintiffs to remove any trees in the suit property. The matter was again listed on 10.03.2011, 21.03.2011, 15.04.2011 and 10.06.2011. On 10.06.2011, written statement and objections of defendants taken as not filed and the matter was directed to be listed on 04.08.2011. On 22.09.2011, the learned counsel for the plaintiffs has filed I.A.No.9 under Order 7 Rule 14 r/w Section 151 of CPC along with list of documents and the same was allowed. Chief examination by way of affidavits of plaintiff No.2 was

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taken on record and the cross-examination as nil. The

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judgment impugned has been passed on 17.12.2011.

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The aforesaid would indicate that the matter

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was disposed of, by the Trial Court, in a hurried manner. Even Notice under Section 80 of CPC was dispensed with without valid reasons. No doubt, there is some callousness on the part of the defendants in not filing the written statement on the dates fixed, atleast some reasonable opportunity would have been provided to cross-examine the plaintiffs, having regard to the nature of the suit and the public interest involved. The Trial Court even accepting the plea of the plaintiffs is required to give adequate reasons though based on ex parte evidence which is apparently lacking herein . The approach of the Trial Court is wholly erroneous, merely because there is no rebuttal evidence, plea of the plaintiffs cannot be blindly accepted. The impugned judgment and decree suffers from infirmity and is

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against the fundamental principles of natural justice,

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the same is not sustainable in the eye of law.

¶190

Learned Senior counsel appearing for the plaintiffs supporting the impugned judgment and decree has referred to host of cases in support of his arguments. But in our considered view, the same would not come to the assistance of the plaintiffs to justify the impugned judgment and decree. Though arguments are advanced on the points of non-applicability of Act, 1997 by the learned Senior counsel, it has been fairly submitted that by virtue of the interim order passed by the Hon’ble Apex Court, the provisions of the said Act are now applicable to the religious institutions coming within the purview of the said Act. Hence, without going into the merits or demerits of the arguments advanced by the learned counsel for the parties on merits, to balance the scale of equity, we consider it appropriate to remand the matter along with I.A.No.2/2020 to the Trial Court with liberty to the defendants to file the written

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statement within a period of four weeks from the date of receipt of the certified copy of the order. We are conscious that the plaintiffs are put to face re-trial for no fault on their part. In order to balance the scales of equity and fair play, we consider it just and proper to remand the matter by awarding a sum of Rs.30,000/by way of token costs to the plaintiffs payable by the appellants. Hence, the cost amount of Rs.30,000/- shall be recovered equally from the defendant Nos.2 to 4 either from their salary or as arrears of land revenue from them.

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Before parting, we would like to observe that

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the Government Officers and the Government Pleader

¶195

representing the Government are discharging the functions of the Government which involves the larger interest of the public. Fairness, discipline, dedication, sincerity and integrity are the hallmark qualities for a Government Officer/Government Advocate. Government Advocate being the Law Officer of the Court has to

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assist the Court for the effective adjudication of the dispute. Safeguarding the rights and interest of the Government is sine quo non for the Government Officers. Having regard to the nature of the litigation, the defendants ought to have been more cautious in defending the matter. There is default on the part of the defendants in not defending the matter by filing the written statement and cross-examining the plaintiffs. For the default committed by the defendants, the public interest at large should not suffer. Hence, the costs shall be recovered from defendant Nos.2 to 4, the officers during the relevant period. State Government has to take appropriate action against such erring officers.

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Hence, the following:

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ORDER

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i) The appeal stands allowed in part.

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ii) The impugned judgment and decree dated

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17.12.2011 passed by the learned Addl. Senior Civil Judge and C.J.M., at Tumkur stands set aside.

¶204

iii) The matter is remanded to the Trial Court along with I.A.No.2/2020 reserving liberty to the defendants to file the written statement within a period of four weeks from the date of receipt of the certified copy of the order.

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iv) All the rights and contentions of the parties are left open.

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v) The Trial Court shall re-consider the matter in accordance with law and shall dispose of the same in an expedite manner.

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vi) Since, the parties are represented though their learned counsel, the parties are directed to appear before the Trial Court on 9.8.2021 without waiting for any notice and shall take further orders.

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vii) The appellants shall pay costs of Rs.30,000/- to the plaintiffs/respondents within four weeks from today recoverable

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from defendant Nos.2 to 4 from their salary or as arrears of land revenue from them.

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Sd/JUDGE

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Sd/JUDGE

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DVR/PMR

State of Karnataka v. Sri Seebi Narasimhaswamy Temple

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Sri Seebi Narasimhaswamy Temple

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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