Sri S. Narayanappa Vs Sri.Kamadhenu Seva Samithi

SMT.SARASWATHI D/O LATE S.NARAYANAPPA, W/O LATE G.CHANDRASHEKAR, AGED ABOUT 43 YEARS, R/AT NO.2, 2ND MAIN, BASAVANAGARA (FLOUR MILL), MARATHALLI POST, BENGALURU-560 037.

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SMT.MANGALA GOWRI D/O LATE S.NARAYANAPPA, W/O M.GOPAL, AGED ABOUT 38 YEARS, R/AT NO.130, VADDARA PALYA, UTTHARAHALLI, SUBRAMANYAPURA POST, BENGALURU-560061.

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SMT.PARVATHI.N D/O LATE S.NARAYANAPPA, W/O M.LOKESH, AGED ABOUT 37 YEARS, R/AT NO.94, MAHANTHALINGAPURA, JIGANI HOBLI,

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ANEKAL TALUK, BHANNERGHATTA POST, BENGALURU-560105.

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SMT.JYOTHI.N D/O S.NARAYANAPPA, W/O MOHAN KUMAR.S, AGED ABOUT 36 YEARS, R/AT NO.347, SHIVANAPALYA, KENGERI SATELLITE TOWN, BENGALURU-560 060.

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…APPELLANTS

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(BY SRI.MAHANTESH G., ADVOCATE FOR A(i) TO iii, v, vii and ix, SRI.M.V.MURTHY, ADVOCATE FOR A1(iv, vi and viii)

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AND:

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SRI.KAMADHENU SEVA SAMITHI (REGD) REPTD BY ITS PRESIDENT SRI R KRISHNASWAMY, SON OF LATE RAMA NAIDU, AGED ABOUT 74 YEARS, RESIDING AT NO.915, 4TH MAIN, VIBHUTHIPURA LAYOUT, BASAVANAGARA, MARATHAHALLI POST, BANGALORE-560037

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SRI S SAMPANAGIRAMAIAH SON OF LATE SIDDAPPA, AGED ABOUT 58 YEARS, RESIDING AT KODHIHALLI VILLAGE, ULSOOR POST, BANGALORE-560008

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SMT MUNIVENKATAMMA WIFE OF LATE S RAMAIAH, AGED ABOUT 48 YEARS,

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RESIDING AT NO.2468/A, HAL 3RD STAGE, 2ND CROSS, KONENA AGRAHARA, BANGALORE-560017

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SRI S ANJANAPPA SON OF LATE SIDDAPPA, AGED ABOUT 45 YEARS, RESIDING AT BASAVANAGARA, VIBHUTHIPURA EXTENTION, MARATHAHALLI POST, BANGALORE-560037

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SRI S GOVINDARAJU SON LATE SIDDAPPA AGED ABOUT 43 YEARS, RESIDING AT BASAVANAGAR, VIBHUTHIPURA EXTENSION, MARATHAHALLI POST, BANGALORE-560037

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…RESPONDENTS

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(BY SMT.K.SAROJINI MUTHANNA, ADVOCATE FOR R1, V/O DATED 04.07.2025, APPEAL AGAINST R2 ABATED SRI.D.RAJU, ADVOCATE FOR R3

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V/O DATED 28.08.2018 BRINGING LRS OF DECEASED R4 IS NOT NECESSARY

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V/O DATED 12.01.2015, NOTICE TO R5 IS DISPENSED WITH)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.10.2014 PASSED IN O.S.5666/2008 ON THE FILE OF THE XXXIX-ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR PERMANENT INJUNCTION. DISMISS THE SUIT OF THE PLAINTIFF AND ALLOW THE COUNTER CLAIM OF DEFENDANT NO.1 IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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Defendant No.1 in O.S.No.5666/2008 is before this Court being aggrieved by the Judgment and decree dated 18.10.2014 passed on the file of XXXIX Additional City Civil and Sessions Judge, Bengaluru, by which the trial Court has decreed the suit for permanent injunction restraining the defendants permanently causing interference in the peaceful possession of the plaintiff over the suit schedule properties. Further defendants have been directed to remove the construction existing on `C' Schedule property within 90 days from the date of order.

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Subject matter of the suit is:

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SCHEDULE -A

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All that part and parcel of property bearing Sy.No.165, situated at Vibhuthipura Village, K.R.Puram Hobli, Bangalore East Taluk measuring East to West 100 feet and North to South 100 feet with five shops and two temples thereon and being bounded on the

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East by: Property of Srinivas

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West by: Government Road

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North by: 20 Feet Road

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South by: 20 Feet Road

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SCHEDULE -B

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All that piece and parcel of property bearing Sy.Nos.163/4A, 163/4B and 163/4B2 situated at Vibhuthipura Village, K.R.Puram Hobli, Bangalore East Taluk measuring East to West 20 feet and North to South 40 feet with one borewell and tank thereon and being bounded on the

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East by: Road

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West by: Anjanappa's site

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North by: Tata Company Land

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South by: Road

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SCHEDULE -C

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All that part and parcel of the trespassed portion of the property to an extent of East to West 10 feet and North to South 30 feet, in the western side on Schedule A, property of Sy.No.165, situated at Vibhuthipura Village, K.R.Puram Hobli, Bangalore East Taluk behind the shop No.4 and 5 semi constructed area bounded on the

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East by: Rest of the portion of the Schedule A property

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West by: Shop No.4 and 5

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North by: Rest of the portion of the Schedule A property

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South by: Shop No.3 allotted to Sri.Ramu and

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rest of the portion of the Schedule A property

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The above suit is filed by the plaintiff-Kamadhenu

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Seva Samithi against the defendants contending interalia , that

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it is a society registered under the Karnataka Societies Registration Act, 1960. That the defendants are the children of one late Siddappa, who was the absolute owner of the property measuring 2 acres 16 guntas of land in Sy.No.165 situated at Vibhuthipura Village, K.R.Puram Hobli, Bangalore East Taluk, as

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well as land bearing Sy.No.163/4A, measuring 2 acres situated at Vibhuthipura Village, K.R.Puram Hobli, Bangalore East Taluk. He having purchased the same, out of his own self earnings. That in the year 1984, the elders of Vibhuthipura layout, which is presently called as Basavanagar, for the purpose of propagating and conducting religious and cultural functions, for the benefit of public at large, decided to form a Samithi. Late Siddappa, being a respectable person of the area during the relevant period and being the owner of the land, gifted a site measuring East to West 100 feet, North to South 100 feet for the purpose of constructing the temple which portion of the property forms part of land in Sy.No.165 described in the suit schedule A property. That for the purpose of supplying drinking water to general public of the said locality said late Siddappa had also installed a borewell and constructed a water tank. He gifted another site measuring East to West 20 feet North to South 40 feet in Sy.No.163/4A, which is also described in the schedule to the plaint. Late Siddappa himself was the president of the plaintiff- Samithi during his lifetime. As per his desire and the desire of the public at large, temples by name Mahaganapathi and Mahanandi were constructed on the

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schedule A property. As the income from the water supply was falling short for the maintenance of said temples, it was decided to construct a shopping complex at the available vacant space on the schedule A property. Accordingly, five shops were constructed, out of which four shops were measuring 1 square each and one shop is measuring 2 squares. That during his lifetime, he had bequeathed the suit properties acquired by him for the benefit of the temples in terms of the Will dated 20.02.2003. Late Siddappa passed away on 26.01.2005.

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That defendant No.1 had filed a suit in O.S.No.6669/2000 before the City Civil Court, Bengaluru against late Siddappa, seeking partition and separate possession of family properties. By Judgment and Decree dated 22.09.2007, the said suit came to be dismissed, holding that

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the properties in the said suit were not the joint family properties. Thus, from the year 1984 till the date of filing of suit, the plaintiff- Samithi has been in possession and enjoyment of the suit properties without any hindrance from anyone whomsoever. However, during the month of August 2008, defendants insisted plaintiff-Samithi to vacate and hand

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over the suit properties to them as they claimed to have succeeded to the same upon the demise of said Siddappa constraining the plaintiff-Samithi to file the suit.

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Defendant No.1 appeared and filed written statement alleging suppression of material facts also denying plaintiff's claim of it being in possession of the suit properties. He has pleaded ignorance about forming of plaintiff-Samithi. Defendant No.1 contended that he is in possession of the suit property for more than 30 years and plaintiff has never been in possession of the suit properties at any point of time.

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4.1 It is further contended that he being in possession of the suit properties and has been recognized as a khathedar by the then H.A.Sanitary Board in respect of larger area measuring 100 feet x 180 feet which includes the suit properties. Consequent upon the property coming within the jurisdiction of CMC K.R.Puram, his name has been registered in the revenue records and he has been paying the property taxes to the Government.

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4.2 It is further contended that he is the owner of site Nos.72 and 73 measuring 100 feet x 180 feet carved out of land measuring 2 acres in Sy.No.165, which was purchased by the defendant No.1 and his father,

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Siddappa during his lifetime jointly under deed of sale on 20.03.1956. As such, Siddappa could not have executed document conveying any right, title and interest in respect of suit properties in favour of the plaintiff-Samithi.

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4.3 That he had constructed Mahanandhi and Mahaganapathi temples, five shops and three residential buildings and he had let out the same to various tenants.

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4.4 That the Will said to have been made by the defendant's father during the pendency of the partition suit is invalid and nobody acted upon it nor given effect to.

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4.5 That the said Will had come into existence under suspicious circumstances when his father was not in disposition state of mind. That there is no mention in the Will that suit properties should be handed over to public much less to Kamadhenu Seva Samithi. It was only stated that public can utilize only these two temples. No third person, trust, Samithi or plaintiffSamithi is appointed to manage the affairs of the temples and to collect the income derived from the suit properties. There is no direction to this defendant or other children to deliver possession to any public authorities or to samithi except saying that the income derived from the schedule property should be utilized

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for the development and management of temples situated there. Public or the plaintiff-Samithi cannot get any right, title, interest over the same. The plaintiff -Samithi is required to file a suit for declaration and possession. Suit for injunction is not maintainable.

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4.6 That he has been looking after the affairs of the two sites from the beginning including the temples as he is the joint owner of the suit property along with his father and himself. Since there was a difference of opinion between him and his father, he filed a suit for partition in O.S.No.6669/2000, which was dismissed and he has filed regular first appeal in RFA No.30/2008 pending consideration before the High Court.

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4.7 That he is in possession of the suit properties. That on 23.01.2009 office bearers and members of plaintiff-Samithi came near the `A' schedule property along with JCB and police and forcefully demolished five residential buildings situated thereon and removed barbed wire fence around the same illegally and high handed manner. False and frivolous case has been filed against defendant and family members.

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4.8 That the plaintiff-Samithi without any manner of right, title and interest in respect of any portion of suit properties and without being in possession of the same at any point of time are threatening to dispossess the

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defendant on the basis of interim order of injunction. Hence, sought for grant of permanent injunction restraining the plaintiff, its office bearers etc., from interfering with his peaceful possession and enjoyment of the suit properties.

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Defendant No.3, the daughter-in-law of late Siddappa as well as defendant No.5 another son of Siddappa have filed their separate written statement admitting the plaint averments and also admitting the fact of suit properties having been bequeathed by late Siddappa for the purpose of construction of two temples. They have denied the allegation of they interfering in the affairs of the plaintiff-Samithi.

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Trial Court based on the pleadings framed the following issues and additional issues:

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"1. Whether the plaintiff proves that they are in possession and enjoyment of the plaint A and B schedule properties as on the date of suit, as contended?

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Whether the plaintiff proves the defendants have put up illegal construction in a portion of A schedule property, which is nothing but "C" schedule property?

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Whether the plaintiff proves the interference of the defendants over A and B schedule property?

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Whether the plaintiff is entitled for the relief of mandatory injunction as prayed?

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Whether the plaintiff is entitled for the relief of permanent injunction as prayed?

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What order or decree?

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Additional issues:

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Whether the 1^st defendant proves that he is in possession and enjoyment of the suit schedule property as stated in the counter claim?

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Does the 1^st defendant proves the interference of the plaintiff pertaining to schedule properties?

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Is the 1^st defendant entitled for the relief sought in his counter claim?"

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One witness examined on behalf of the plaintiffSamithi as PW1 and exhibited 29 documents marked as

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Exhibits-P1 to P29. Defendant No.1 got himself examined as DW1 and exhibited 77 documents marked as Exhibits D1 to D77. Trial Court answered issue Nos.1 to 5 in the affirmative and Additional issue Nos.1 to 3 in the negative and consequently decreed the suit as noted above. Being aggrieved the present appeal.

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Learned counsel appearing for defendant

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No.1/appellant herein reiterating the grounds urged in the memorandum of appeal submits that the trial Court failed to appreciate the evidence led in by the defendant No.1 establishing his right, title, interest and possession over the suit properties. Despite defendant No.1 establishing his possession,

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the trial Court has proceeded to grant the relief of injunction which is unsustainable. He submits that the plaintiff-Samithi has not derived any right, title and interest over the properties during and after the lifetime of Siddappa in the manner known to law. Therefore their possession cannot be held to be lawful as erroneously concluded by the trial Court. Hence seeks for allowing of the appeal.

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Per contra, learned counsel appearing for plaintiffSamithi taking this Court through the records more particularly to the deposition of defendant No.1 submits that defendant himself in unequivocal terms admitted that he had no source of independent income and that he was not the owner of the properties as sought to be claimed. She submits that the other defendants who are the respondents 2 to 5 in this appeal are none other than the children of said Siddappa have supported the case of the plaintiff-Samithi, confirming properties having been bequeathed in favour of the Samithi of plaintiff-Samithi by late Siddappa. She submits that the trial Court having gone through the records and oral and documentary evidence led in by the parties has come to just conclusion warranting no interference at the hands of this Court.

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Heard and perused the records.

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The points that arises for consideration is:

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"1. Whether the plaintiff-Samithi has established its lawful possession over the suit properties?

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2. Whether the plaintiff-Samithi has proved interference by the defendants into its lawful possession over the suit properties?

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3. Whether the defendant No.1 has proved that he is in possession and enjoyment of the suit properties, thus entitled for relief of injunction as sought for against the plaintiff?

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4. Whether the trial court is justified in decreeing the suit as prayed for ?"

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Plaintiff-Samithi had claimed that the suit properties are the self acquired properties of late Siddappa. This was disputed by defendant No.1 who had contended that suit properties are the joint family properties and that Siddappa his father and defendant No.1 had purchased it jointly. This dispute raised by the defendant No.1 has been put at rest by Judgment and decree dated 22.09.2007 passed in a suit in O.S.6669/2000 filed by him for partition. The appeal filed by defendant No.1 against the said Judgment and decree in RFA No.30/2008 is stated to have been dismissed on 24.11.2023.

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Thus, in view of the same there is no dispute of the fact that the suit properties originally belonged to late Siddappa.

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There is also no dispute of the fact that the plaintiffSamithi was constituted and registered under the Karnataka Societies Registration Act on 15.10.1984 with its registration No.115/84-85 and said Siddappa was himself the President of plaintiff-Samithi.

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Ex.P6 is irrevocable General Power of Attorney dated 08.09.1987 executed by said Siddappa in favour of one L.Shivalingappa, Secretary of the plaintiff-Samithi whereby he has authorised the said attorney to deal with the properties referred to therein and to utilise the proceeds arising out of the said properties for the benefit of the plaintiff-Samithi.

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Ex.P7 is the affidavit dated 08.09.1987 sworn to by Siddappa in furtherance to the aforesaid power of attorney at Ex.P6. Contents of affidavit at Ex.P7 indicate that though Siddappa had already gifted the suit properties to plaintiffSamithi and had handed over the possession, he could not register deed of gift in view of prohibition contained under Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966.

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The properties described in the said power of attorney as well as the affidavit are the plaint A and B schedule properties.

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It is not the case of the defendant No.1 that the said documents namely power of attorney and affidavit are either fabricated or forged. On the other hand he has contended that the said documents do not create any right, title and interest in favour of the plaintiff-Samithi. The contention is of no avail in view of the registered Will dated 20.02.2003 produced at Ex.P22 executed by Siddappa bequeathing all his properties in favour of his children the defendants herein and Mahaganapathi and Mahanandi Temples.

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Perusal of Ex.P22 the certified copy of the registered Will dated 20.02.2003 executed by Siddappa indicate that the properties described under schedule A of the Will are bequeathed in favour of his son Narayanappa, defendant No.1 herein; properties described in Schedule B in favour of his second son -Sampangiramaiah, defendant No.2 herein; properties described in Schedule C in favour of his third son -

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S.Ramaiah, husband of defendant No.3 herein; properties described in Schedule D in favour of his fourth son -Anjanappa, defendant No.4 herein; properties described in Schedule E in favour of his fifth son -S.Govindaraju, defendant No.5; properties described in Schedule F in favour of his first daughter Ramakka; properties described in Schedule G in favour of his second daughter Muniyamma; properties described in Schedule H in favour of Mahaganapathi Temple and Nandi Temple. The said properties described under Schedule H to the said Will are suit schedule A and B properties.

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Unnumbered Paragraph 5 of page No.3 and

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unnumbered paragraph 1 of page No.4 of the said Will read as under:

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"Whereas I have given a site in Sy.No.165, situated at Vibhuthipura Village, K.R.Puram Hobli, Bangalore East Taluk, measuring East to West: 100 ft and North to South 100 ft, to the Mahaganapathi Temple, and Nandi Temple, and temples are existing and Five Shops have been constructed on the site and the same shall be utilized by the General Public and the income of the shops and other buildings shall utilized for the development and maintenance of the temples, neither my sons, daughters nor my grand sons have no right, title, interest over the said property and yielding income in future.

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"And another property bearing Sy.No.163/4A, situated at Vibhuthipura Village, K.R.Puram Hobli, Bangalore East Taluk

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measuring East to West 20 feet, North to South 40 feet., in which I dug the Borewell and constructed a water tank for the purpose of supplying water to Basavanagara and income from the Borewell, shall be used by Mahaganapathi Temple and Nandi Temple for development and maintenance of temples, neither my sons nor my grandsons have no right, title, interest over the said property and yielding income in future."

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Defendant No.1 has not disputed execution of the aforesaid Will Ex.P22 by his father. However he has taken up the contention of said Will having come into existence under suspicious circumstances, was therefore unenforceable. It is also contended that said Will does not indicate that suit properties to be handed over to the public much less plaintiffSamithi. He has also questioned the right of Siddappa in executing the said Will contending that since the suit properties are the joint family properties, Siddappa could not have executed the Will bequeathing suit properties in favour of the Temples. Defendant No.1 had set up a plea by amending the written statement contending that he along with his father purchased the suit properties in terms of the deed of sale dated 20.03.1956 and as such his father was not the sole owner, as such his father could not have executed said Will.

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It is settled position of law that a Will duly executed and registered carries with it presumption of its validity. The burden is on the person who disputes due execution and registration of the same. Defendant No.1 has not discharged this burden.

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The other contention of defendant No.1 being purchaser of suit properties along with Siddappa has been negated by the trial Court based on dismissal of suit filed by defendant No.1 in O.S.6669/2000 as already noted above. Thus, as rightly observed and concluded by the trial Court, defendant No.1 has failed to prove the suit properties being the joint family properties.

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Respondents-defendants 2 to 5 have indeed supported the case of the plaintiff-Samithi confirming and affirming the transaction that had transpired during the lifetime of Siddappa and he bequeathing the suit properties in favour of Temples and plaintiff-Samithi being in possession and control of the suit properties.

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Since the suit properties being absolute self acquired properties of late Siddappa having been proved and established and execution of the registered Will at Ex.P22 by Siddappa having been admitted by the defendant No.1 in view of the clauses contained in the Will extracted hereinabove, suit properties have become the properties of the temples. Thus, by virtue of the Will coming into effect after the demise of late Siddappa on 26.01.2005 the temples/deities have become absolute owners of the suit properties.

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The only other contention vehemently urged and canvassed by defendant No.1 is that plaintiff-Samithi has nothing to do with the affairs of the temples and as such cannot claim to be in possession of the suit properties. As already noted plaintiff-Samithi was incorporated and registered under the provisions of Karnataka Societies Registration Act on 15.10.1984 of which admittedly late Siddappa was the President. By virtue of the Irrevocable power of attorney dated 08.09.1987 produced at Ex.P6 and the affidavit produced at Ex.P7 the possession of the suit properties had already been delivered to the plaintiff-Samithi. The Will at Ex.P22 referred to

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above read in the light of the transaction as indicated in Ex.P6 and P7, only inference that can be drawn is that Siddappa was intending and was desirous of conveying the suit properties for the benefit of the temples and for the benefit of public at large. The temples constructed on schedule A property, their maintenance and management was to be looked after by plaintiff-Samithi of which Siddappa himself was the President during his life time. Express exclusion of his children namely defendants to derive any benefit from and out of the proceeds of Schedule A and B properties provided under the Will as extracted hereinabove would only indicate that Siddappa had already entrusted the said responsibility of management and maintenance to the plaintiff-Samithi.

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Defendant No.1 is the only son amongst four other children of late Siddappa who is disputing the conveyance/bequeath made by Siddappa in favour of the temples to be managed and maintained by the plaintiff - Samithi. Defendants 3 and 5 have filed written statement expressly affirming the case of the plaintiff-Samithi and the desire of Siddappa.

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Though the defendant No.1 has claimed that he has constructed the temples and commercial complex consisting of five shops on the Schedule A property, no legally acceptable evidence has been produced by him in this regard.

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Defendant No.1 though has produced documents of he purportedly being in possession of the properties having inducted tenants in the buildings constructed on the Schedule A and B properties, as rightly taken note of by the trial Court has not proved the same. Ex.D28 is property tax extract issued by H.A.Sanitary Board in the year 1982-83. Ex.D29 is the Khatha certificate issued by Bruhat Bangalore Mahanagara Palike. Ex.D30 is the khatha extract issued by BBMP and Ex.D31 to D40 are the purported tax receipts. Based on these documents, defendant No.1 claims to be the owner in possession of the suit properties. Defendant No.1 has not proved the manner in which the suit properties were acquired by him. When it is proved, established and admitted that Siddappa was the absolute owner of the property and he having bequeathed suit properties in favour of Temples in terms of Ex.P22, defendant No.1 based on some stray entries

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in the revenue records cannot claim to be the owner in possession of the suit properties. As such, the reliance placed by the defendant No.1 on the revenue documents namely Ex.D28 to D40 noted above do not justify his claim of he being owner in possession of the suit properties.

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In the light of the aforesaid pleading and undeniable material evidence on record, this Court do not find any error or illegality committed by the trial Court in decreeing the suit.

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Points raised above answered accordingly. Appeal fails and stands dismissed.

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Pending I.As are disposed of. If there is any survival

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of cause of action for the parties, parties are at liberty to proceed in accordance with law.

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Sd/(M.G.S. KAMAL) JUDGE

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SBN

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List No.: 1 Sl No.: 33

Sri S. Narayanappa v. Sri.Kamadhenu Seva Samithi

Case brief

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Sri S. Narayanappa v. Sri.Kamadhenu Seva Samithi

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