Dismissed

Bikya Kharvi v. Govinda Rao Kanoji

Karnataka HC2 Feb 2024WP/38206/2017

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking to quash an order granting a temporary injunction in an inheritance suit concerning the administration of a temple in Udupi district, finding the trial court did not err in interim proceedings.

What did the court decide?

Writ petition dismissing the petition and upholding the trial court's interim order restraining the respondent from interfering in the temple administration.

Bikya Kharvi Vs Govinda Rao Kanoji — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:4564 WP No. 38206 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 38206 OF 2017 (GM-CPC)

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BETWEEN:

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BIKYA KHARVI S/O LATE SUBBE KHARVI R/AT LIGHTHOUSE

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GANGOLLI VILLAGE KUNDAPURA TALUK UDUPI DISTRICT-576 201

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BENEFIT OF SENIOR CITIZEN NOT CLAIMED

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…PETITIONER

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(BY SRI. NEERAJA KARANTH FOR SRI. SHRIHARI K .,ADVOCATES)

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AND:

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Digitally signed by PAVITHRA N Location: high court of karnataka

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GOVINDA RAO KANOJI S/O LATE THIMMAPPA THANDELA AGED ABOUT 63 YEARS

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DHAMODHARA KANOJI S/O LATE THIMMAPPA THANDELA AGED ABOUT 59 YEARS

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NAGESH KANOJI S/O LATE THIMMAPPA THANDELA AGED ABOUT 56 YEARS

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VIMALA W/O MOHAN KANOJI AGED ABOUT 64 YEARS

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PRAKASH S/O MOHAN KANOJI

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AGED ABOUT 44 YEARS

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HARISH S/O MOHAN KANOJI

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AGED ABOUT 41 YEARS

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2 - NC: 2024:KHC:4564 WP No. 38206 of 2017

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VINODA S/O MOHAN KANOJ AGED ABOUT 39 YEARS

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SANTHOSH S/O MOHAN KANOJI AGED ABOUT 32 YEARS

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R1 TO R8- ALL ARE R/AT:

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SRI MAHANKALI AMMANAVARA DEVASTHANA KANOJI MATA,GANGOLLI VILLAGE AND POST KUNDAPURA TALUK - 576 201

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DIWAKAR KARVI AGED ABOUT 43 YEARS R/AT KARVIKERI, GANGOLLI GRAMA KUNDAPURA TALUK, UDUPI DISTRICT - 576 201

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ANNAPPAYYA KHARVI S/O LATE KOGGA KHARVI AGED ABOUT 65 YEARS R/AT KARVIKERI, GANGOLI VILLAGE KUNDAPURA TALUK, UDUPI DISTRICT - 576 201

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NAGARAJ KHARVI S/O LATE KRISHNA KHARVI AGED ABOUT 45 YEARS R/AT KARVIKERI, GANGOLLI GRAMA KUNDAPURA TALUK, UDUPI DISTRICT - 576 201

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GANAPATHI PATIL S/O LATE HOLLAPPA PATIL AGED ABOUT 65 YEARS R/AT HOLLAPPA PATIL R/AT KANCHAGODU VILLAGE KUNDAPURA TALUK, UDUPI DISTRICT - 576 201

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SHEENA PATIL AGED ABOUT 65 YEARS R/AT DAKU HITTALU, GANGOLLI VILLAGE

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3 - NC: 2024:KHC:4564 WP No. 38206 of 2017

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KUNDAPURA TALUK, UDUPI DISTRICT - 576 201

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KRISHNA PATIL S/O LATE CHIKKA PATIL AGED ABOUT 65 YEARS R/AT GUDDE KAARI, GANGOLLI VILLAGE KUNDAPURA TALUK, UDUPI DISTRICT - 576 201

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RAMADASA PATIL S/O LATE KINA PATIL, AGED ABOUT 58 YEARS R/AT MYALARABETTU, GANGOLLI VILLAGE KUNDAPURA TALUK, UDUPI DISTRICT - 576 201

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NAGAPAYYA PATIL S/O LATE RAMA PATIL, AGED ABOUT 55 YEARS R/AT MYALARABETTU, GANGOLLI VILLAGE KUNDAPURA TALUK, UDUPI DISTRICT - 576 201

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RAGHAVENDRA PATIL S/O LATE PANDU PATIL AGED ABOUT 45 YEARS R/AT KARVIKERI, GANGOLLI VILLAGE KUNDAPURA TALUK, UDUPI DISTRICT - 576 201

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Y.SURESH KHARVI S/O YASHWANTH KHARVI AGED ABOUT 45 YEARS R/AT MYALARABETTU, GANGOLLI VILLAGE KUNDAPURA TALUK, UDUPI DISTRICT - 576 201

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…RESPONDENTS

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(BY SRI. YASHWANTH C FOR SRI K G SADASHIVAIAH FOR C/R1- R8.,ADVOCATES

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V/O DATED 31.01.2023 PETITION AGAINST R11 IS ABATED R9-10, 12-18 ARE SERVED AND UNREPRESENTED)

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NC: 2024:KHC:4564 WP No. 38206 of 2017

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THIS WRIT PETITION FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 31.7.2017 IN MISC . APPEAL NO. 4/2017 ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS JUDGE UDUPI (SITTING AT KUNDAPURA) AT ANNEXURE-A TO THE WRIT PETITION AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B-GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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The appellant in Misc.Appeal.No.4 of 2017 on the file of the learned Additional District and Sessions Judge Udupi (sitting at Kundapura), is impugning the order dated 31.07.2017, dismissing the appeal filed by him under Section 104 read with Order XLIII Rule 1(r) of CPC, consequently, confirming the order dated 18.04.2017 passed by the learned Senior Civil Judge, Kundapura on IA.No.II in OS No. 14 of 2017 filed under Order XXXIX Rules 1 and 2 of CPC, granting temporary injunction restraining the defendants from interfering in the administration of the temple, which is the subject matter of the suit.

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Heard Sri. Neeraja Karanth, learned counsel for the petitioner and Sri Yashwanth C, learned counsel for respondent Nos.1 to 8. Perused the materials on record.

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NC: 2024:KHC:4564 WP No. 38206 of 2017

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Learned counsel for the petitioner submitted that the respondents as plaintiffs filed suit OS No.14 of 2017 seeking permanent injunction restraining the defendants from interfering in the administration of the temple in question. IA No.II was filed under Order XXXIX Rules 1 and 2 of CPC, seeking temporary injunction. The said application was allowed by the Trial Court and the same was confirmed in MA No.4 of 2017. Being aggrieved by the same, defendant No.4 is before this Court.

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Learned counsel submitted that the plaintiffs are claiming to be the hereditary trustees of the temple in question and claim exclusive right to manage the affairs of the temple. Alleging that the defendants are interfering with their rights, the suit was filed and also impugned order was obtained. On the other hand, it is the specific contention of the defendants that the temple in question is a family temple of the members of Kharvi Community. The predecessor in title of the plaintiffs had purchased the moolageni right over the land, on which the temple is situated, way back in 1917. The members of Kharvi Community were permitted to worship the deity and perform pooja. The plaintiffs started to interfere with such pooja and

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6 - NC: 2024:KHC:4564 WP No. 38206 of 2017

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worship and also in the administration of the temple. Defendant No.4 filed the written statement and also claimed counter claim for declaration about his right over the temple. Without taking into consideration any of these facts, the Trial court proceeded to allow the application, which is impugned by defendant No.4.

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Learned counsel also submitted that defendant No.2 had filed OS No. 223 of 1997 seeking declaration and permanent injunction in respect of very same temple. The said suit came to be decreed, against which, RA No.77 of 2006 was filed and the same was allowed. It is stated that the second appeal is pending against the said judgment. Since there is serious controversy about the right of the plaintiffs to manage and worship the deity, the Trial Court and the First Appellate Court committed an error in passing the impugned orders. Hence, he prays for setting aside the same by allowing the petition.

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Per contra, learned counsel for the respondents -

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plaintiffs opposing the petition submitted that, the suit OS No.223 of 1997 filed by defendant No.2 was already dismissed

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NC: 2024:KHC:4564 WP No. 38206 of 2017

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by the judgment passed in RA No.77 of 2006. The Court has already recorded a finding regarding the right of the plaintiffs. The present suit is only for perpetual injunction. Since the defendants were interfering in the administration of the temple, the suit was filed and IA No.II filed seeking the temporary injunction. The impugned order passed by the Trial Court makes it very clear that the defendants are restrained from interfering in the administration of the temple in question. It has made very clear that the defendants can very well visit the temple, perform pooja as a devotee. Therefore, there is no reason to interfere with the impugned order and prays for dismissal of the petition.

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Existence of temple in question is not in dispute. It

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is also not in dispute that the predecessor in title of the plaintiffs purchased the said moolageni right over the land in question and they were in possession of the same. It is the specific contention of the plaintiffs that they are the hereditary trustees in respect of the temple and they are having right to perform pooja and administer the temple. Whereas, it is the contention of the defendants that they being the members of

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NC: 2024:KHC:4564 WP No. 38206 of 2017

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Kharvi Community are entitled to perform pooja and administrate the temple, as it is their family deity.

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It is not in dispute that defendant No.2 had filed OS No.223 of 1997 seeking declaration and permanent injunction in respect of very same temple. Even though the suit was decreed by the Trial Court, the First Appellate Court allowed RA No.77 of 2006. It is stated that the said judgment is challenged in the second appeal, which is pending for consideration. In the meantime, the plaintiffs filed the present suit for perpetual injunction against the defendants to restrain from interfering in the day-to-day administration of the temple. Considering all these facts, the Trial Court passed impugned order allowing IA No.II restraining the defendants from interfering with the administration of the temple.

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It is pertinent to note that the Trial Court made it very clear that the impugned order will not come in the way of defendants visiting the temple and perform pooja to the deity, as they being the members of Kharvi Community. By passing the said order, the Trial Court has taken care of the right of the defendants as claimed by them to a certain extent. Right to

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9 - NC: 2024:KHC:4564 WP No. 38206 of 2017

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administer the temple will have to be considered by the Trial court in the light of rival contentions. It is stated that the petitioner being defendant No.4 filed a counter claim seeking declaration of his right to administer the temple. Under such circumstances, administration of temple is a disputed question of fact and the same is to be decided by the Trial Court after full-fledged trial. In the meantime, some arrangements will have to be made to run the temple. In view of these facts and circumstances, I am of the opinion that the Trial Court has rightly passed the impugned order taking care of the right of the defendants to perform pooja in the temple, till disposal of the suit which was confirmed by the Appellate Court. I do not find any illegality and perversity in the said order.

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Hence, writ petition is dismissed.

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Sd/JUDGE

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SPV

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List No.: 1 Sl No.: 7

Bikya Kharvi v. Govinda Rao Kanoji

Case brief

What is this about?

What did the court decide?

Bikya Kharvi v. Govinda Rao Kanoji

Case brief

What is this about?

What did the court decide?

What the court decided

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