Dismissed

C Mariswamy v. Puttaveeraiah

Karnataka HC2 Aug 2021RSA/908/2012

Case brief

AI extract

What is this about?

Second appeal against dismissal of a suit seeking declaration of customary right to perform rituals at a temple. The High Court dismissed the appeal at the admission stage for failure to frame a substantial question of law, holding that concurrent findings of facts lower down were binding and not perverse.

What did the court decide?

The regular second appeal is dismissed at the stage of admission; incidental applications are also dismissed.

C Mariswamy Vs Puttaveeraiah — 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 2^ND DAY OF AUGUST 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. NO. 908 OF 2012 (DEC/INJ)

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BETWEEN:

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C. MARISWAMY

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S/O LATE CHOWDAIAH AGED ABOUT 43 YEARS

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VEERABHADRAIAH S/O BODADAIAH AGED ABOUT 67 YEARS

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BOTH ARE RESIDENTS OF KADUKOTHANAHALLI VILLAGE C.A.KERE HOBLI MADDUR TALUK MANDYA – 571428.

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... APPELLANTS

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(BY SRI. D.S. HOSMATH, ADVOCATE)

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AND:

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PUTTAVEERAIAH

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S/O. LATE ANNAIAH AGED ABOUT 62 YEARS

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DODDA PUTTAIAH

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S/O. LATE SANNA MARIYAIAH AGED ABOUT 50 YEARS

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C.K. SHIVAPRASAD

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S/O CHIKKANNA AGED ABOUT 50 YEARS

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ALL ARE RESIDENTS OF KADUKOTHANAHALLLI VILLAGE C.A.KERE HOBLI MADDUR TALUK-571428.

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... RESPONDENTS

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(BY SRI.K.ABHINAV ANAND, ADVOCATE FOR R1 TO R3)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.4.2012 PASSED IN R.A.NO.1/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE MADDUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:18.12.2010 PASSED IN O.S.NO.140/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR. DN) & JMFC., MADDUR.

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THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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J U D G M E N T

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This Regular Second Appeal is filed by the plaintiffs challenging the judgment and decree dated 17.04.2012 in R.A.No.1/2011 on the file of the Senior Civil Judge, Maddur, confirming the judgment and decree dated 18.12.2010 passed in O.S.No.140/2008 on the file of the Principal Civil Judge (Jr. Dvn.,) & JMFC at Maddur, dismissing the suit.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

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It is the case of the plaintiffs that there are nine

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temples in the Kadukothanahalli Village, and out of which, Sri Rakasamma and Sri Chowdeshwari Temples are belonging to schedule caste people. It is further stated that the Archakas of the said temples also belong to the schedule caste and the annul festival of Sri Rakasamma commences after 15 days of Ugadi festival and is being celebrated from time immemorial. Though there were three Archakas to perform the annual festival and weekly poojas of the said deity, two Archaks had assigned their work to another Archaka by name Kemparaju. It is further averred in the plaint that the defendants are the Yajamanas of the respective thandas of Kadukothanahalli Village. It is the primary duty of the Heggade i.e., plaintiff No.1 to proclaim and advertise the annual festival of the said deity by means of Tom-

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Tom. It is further stated that plaintiff No.1 has invested

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money at the time of Jatra and as such, it is the case of plaintiffs that plaintiffs and their ancestors have been recognized as Heggade of the deity from time immemorial and the same has been interfered with by the defendants and as such, they filed suit in O.S.No.140/2008 on the file of the trial Court seeking relief of declaration, declaring that the defendants have no right to exclude the plaintiffs and their thanda people from participating in the Annual festival of Sri Rakasamma deity of Kadukothanahalli Village.

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The said suit was resisted by the defendants by filing written statement denying the averments made in the plaint. It is the defence of the defendants that the Yajamanas of Kadukothanahalli Village are managing and performing the annual festival of Sri Rakasamma deity and it is the practice and usage that the yajamanas are empowered to receive and possess the ornaments and valuables offered to the said deity and as such, the defendants contended that plaintiff No.1 is neither a Heggade nor his ancestors were recognized as Heggade of

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the said temple. Accordingly, they sought for dismissal

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of the suit.

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The trial Court considering the pleadings on

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record has formulated the following issues.

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Whether the plaintiffs prove that plaintiff No.1 is the HEGGADE of the Sri.Rakasamma deity having the customary right to perform annual pooja of the deity?

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Whether the plaintiffs prove that they only have the exclusive customary right to perform the pooja of the deity in exclusion to others?

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Whether the plaintiffs prove that defendants are claiming that they have the right of pooja of the deity?

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Whether the plaintiffs are entitled for the relief sought for?

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What order or decree?

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Plaintiff No.1 was examined as P.W1 and the

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plaintiffs have examined two more witnesses as PWs2 and 3 and marked three documents as per Exs.P1 to P3.

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Defendant No.2 was examined as DW1 and examined three more witnesses as DWs2 to 4. They have not produced any document.

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The trial Court after considering the materials on record by its judgment and decree dated 18.12.2010 dismissed the suit and being aggrieved by the same, plaintiffs have preferred R.A.No.1/2011 on the file of the First Appellate Court and the same was resisted by the defendants. The First Appellate Court, after reappreciating the material on record, by its judgment and decree dated 17.04.2012, dismissed the appeal and as such, confirmed the judgment and decree passed by the trial Court and being aggrieved by the same, plaintiff have preferred this Regular Second Appeal.

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I have heard the learned counsel appearing for the parties.

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Sri D.S. Hosmath, learned counsel appearing for the appellants contended that both the Courts below have misread the documents produced by the parties

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and it is also admitted by the DW1 in the crossexamination that the ancestors of PW1 i.e., plaintiff No.1 was recognized as a Heggade of the said temple and this aspect of the matter was not considered by the both Courts below.

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Per contra , learned counsel appearing for respondents sought to justify the impugned judgment and decree passed by the Courts below.

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Having heard the learned counsel appearing for the parties, I have perused the findings recorded by the Courts below. It is the contention of plaintiffs that the plaintiff No.1 has to be considered as a Heggade of the temple in question. In this regard, plaintiffs have examined two witnesses as P.Ws2 and 3, who have supported the case of plaintiffs. However, in the crossexamination, the P.W.1 admits as follows;

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“ CªÀgÀªÀgÀ PÉÃjUÉ ¸ÀA§AzsÀ¥ÀlÖAvÉ zÉÆqÀØAiÀÄdªÀiÁ£ÀgÀÄ vÉUÉzÀÄPÉÆ¼ÀÄîªÀ wÃªÀiÁð£ÀªÉÃ CAwªÀÄzÁVgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. £ÀªÀÄä Hj£À°è zÉÆqÀØ AiÀÄdªÀiÁ£ÀjzÁÝgÉAzÀgÉ ¸Àj. Further the

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PW.1 admits that £Á£ÀÄ AiÀiÁªÀ vÉAqÉAiÀÄ AiÀÄdªÀiÁ£À£ÀÆ DVgÀÄªÀÅ¢®è J£ÀÄßªÀÅzÀÄ ¸Àj. ªÀÄÆgÀÄ PÉÃjUÀ¼À ¥ÉÊQ ¥Àæw PÉÃjAiÀÄ°èAiÀÄÆ gÁPÀ¸ÀªÀÄä zÉÃ«AiÀÄ ¥ÀÆeÉ ªÀiÁqÀÄªÀ CZÀðPÀjzÁÝgÉAzÀgÉ ¸Àj. CªÀgÀªÀgÀ PÉÃjUÉ ¸ÀA§AzsÀ¥ÀlÖ ¥ÀÆeÉAiÀÄ£ÀÄß D PÉÃjAiÀÄ CZÀðPÀgÉÃ £ÉgÀªÉÃj¸ÀÄvÁÛgÉAzÀgÉ ¸Àj. gÁPÀ¸ÀªÀÄä zÉÃ«AiÀÄ ¥ÀÆeÉAiÀÄ£ÀÄß £Á£ÀÄ 2005jA¢ÃZÉUÉ £ÀqÉ¸ÀÄwÛzÉÝÃ£É. CzÀQÌAvÀ ¥ÀÆªÀðzÀ°è £ÀªÀÄä ¥ÀÆªÀðdgÀÄ £ÀqÉ¸ÀÄwÛzÀÝgÀÄ, £Á£ÁUÀ° CxÀªÁ 2005QÌAvÀ ¥ÀÆªÀðzÀ°è £ÀªÀÄä ¥ÀÆªÀðdgÁUÀ° zÉÃªÀ¸ÁÜ£ÀzÀ ¥ÀÆeÉUÉ ¸ÀA§AzsÀ¥ÀlÖAvÉ ºÀtzÀ §UÉÎ zÉÃªÀ¸ÁÜ£ÀPÉÌ §AzÀ §mÉÖ ªÀqÀªÉ AiÀiÁªÀÅzÉÃ ¥ÀzÁxÀðUÀ¼À §UÉÎ zÁR¯Áw EnÖ®è JAzÀgÉ ¸Àj.”

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Perusal of the said admission made by P.W.1 would clearly establish the fact that neither the ancestors of the P.W1 nor P.W1 was identified and recognized as Hegade of the temple in question. In this regard, though the learned counsel appearing for the appellants contended that D.W1 has admitted about the fact that plaintiff No.1 has been recognized as Hegade, however, perusal of the findings recorded by the trial Court itself would clearly indicate that the plaintiffs though have pleaded that they are Heggade, however, admits that the defendants being Heggade are making

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preparations to celebrate the annual festival of Sri Rakasamma deity and the plaintiffs have failed to prove the case on merits. In this regard, Ex.P.3 – receipt book

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has been produced before the trial Court. The said Ex.P.3 is of the year 1986 and the said document cannot be a basis to arrive at conclusion that the plaintiffs have to be recognized as Heggade of the temple in question in the absence of cogent evidence to prove the same.

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The trial Court after appreciating the entire materials on record by well reasoned judgment and decree dismissed the suit. I have also carefully considered the findings recorded by the First Appellate Court, wherein the First Appellate Court, after re-appreciating the material on record, has come to the conclusion that though the documents produced by the plaintiffs, particularly Ex.P2 which is the voucher book, is produced, however, no signature is found in Ex.P2 and as such, the First Appellate Court had come to the conclusion that the findings recorded by the trial Court is just and proper. In view of both Courts have arrived

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at a conclusion on the fact that the plaintiffs have not produced any document or any cogent oral evidence to establish their right as Heggade of the said temple and in that view of the matter, I do not find any illegality in the judgment and decree passed by the Courts below.

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The law declared by the Hon'ble Supreme Court in the case of C. DODDANARAYANA REDDY (DEAD) BY LRs AND OTHERS v. C. JAYARAMA REDDY (DEAD) BY LRs AND OTHERS reported in (2020)4 SCC 649 is aptly applicable to the case on hand. It is settled principle of law that even if two inferences are possible in a given set of circumstances, the finding recorded by the lower appellate court is binding on the high Court. It is relevant to deduce the observation made by the Hon'ble Supreme Court in the case of C. DODDNARAYANA REDDY (supra) at paragraphs 25 and 26 of the judgment. The same read thus:

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“ 25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court.

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In the judgment reported as Karnataka Board of Wakf v. Anjuman-E- Ismail Madris-UnNiswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

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“12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

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13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC392), this Court held:

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"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

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14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC166), this Court held :

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"Interference with the concurrent findings of the courts below by the High

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Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

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15. Again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held:

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"The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

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26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors., this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law

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applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:

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“5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence. ”

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In the light of the foregoing reasons and in view of the law laid down by the Hon'ble Supreme Court cited supra, the appeal is liable to be dismissed . The appeal is dismissed at the Admission stage itself as the appellants have not made out a case for framing of substantial question of law, as required under Section 100 of Code of Civil Procedure.

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In view of the dismissal of the appeal, all pending IAs are dismissed.

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Sd/JUDGE

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NBM

C Mariswamy v. Puttaveeraiah

Case brief

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C Mariswamy v. Puttaveeraiah

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