Nava_vrundavan Gaddi Case Judgement 22 April 2015

7/23/2019 Nava_vrundavan Gaddi Case Judgement 22 April 2015

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R.A. No. 123/2014 - J1

IN THE COURT OF PRINCIPAL SENIOR CIVIL

JUDGE & CJM., DHARWAD

R.A. No. 123 /2014

Present : A.V. Srinath ,Principal Senior Civil Judge andCJM.,Dharwad.

Dated this the 22

nd

day of April , 2015

Appellant : SRI UTTARADI MUTT,By its Peetadhipathi,Sri Satyatma Teertha Swamiji,Represented by GeneralPower of Attorney Holder,Sri Ayodhya Ramachar , Advocate,Near Raghavendra Swamy Mutt,

Gangavathi, Koppal District.

(By Sri Jayavittal Kolar, Advocate)

Vs.

Respondent : SRI RAGHAVENDRA SWAMY MUTT,

By its Peetadhipathi,Sri Suyathindra Teertharu,Since deceased, Through successor,H.H. Sri Subudhendra TeerthaSwamiji,


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Sri Raghavendra Swamy Mutt,Mantralaya , Kurnool District,

Andhra Pradesh.

(By Sri D. Suresh &Sri K. Suman, Advocates)

--

Date of institution of : 08-07-2011 .

the Appeal

Appeal against : Judgment and Decree

dated 18-06-2011 passed

by the Court of the Addl.

Civil Judge , Gangavathi in

O.S.No.74/2010.

Duration of the Appeal : Year/s Month/s Day/s

3 09 14

( A.V. Srinath)Principal Senior Civil Judge &

CJM.,Dharwad.


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: J U D G M E N T :

1. Feeling aggrieved by the Judgment and

Decree dated 18-06-2011 passed by the Court of the

learned Addl. Civil Judge , Gangavati, Koppal

District, in O.S. No. 74/2010, the unsuccessful

Plaintiff has preferred this Appeal.

2. At the outset, it may be noted that the

present Appeal was initially filed before the Court of

Senior Civil Judge, Gangavati and registered as R.A.

No. 14/2011. Pursuant to the Order passed by the

Honble Supreme Court of India in SLP (Civil) No.

20346/2014, the Honble Prl. District Judge, Dharwad,

has made over the Appeal to this Court . On receipt of

the records, the Appeal came to be registered by this

Court as R.A. No. 123/2014.

3. It may be noted that when the case was posted

for Judgment, a copy of the Order passed by the

Honble Supreme Court of India extending time to


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dispose of the Appeal came to be produced. In the said

Order, the Honble Supreme has stated to the effect

that the extention of time by it will not come in the

way of this Appellate Court from pronouncing the

Judgment as scheduled.

4. For the sake of convenience, the parties in

this Appeal will be referred to as per their rankings

before the trial Court.

5. The records reveal that the Suit was initially

filed by the Plaintiff before the Court of the Civil

Judge, Koppal and was registered as O.S. No.

193/1992. The records further reveal that in view of

the Order passed by the Honble District and Sessions

Judge, Koppal on the administration side, the Suit

came to be transferred to the Court of the Addl. Civil

Judge, Gangavati and registered as O.S. No. 74/2010.

6. The Suit filed by the Plaintiff is for the

relief/s of Perpetual Injunction praying for restraining

the Defendant Mutt, its agents, servants, devotees


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etc., from entering upon the Suit schedule property or

interfering with its possession and enjoyment of the

Suit property and / or from interfering or disturbing

with the performance of annual Aradhana of His

Holiness ( for short H.H. ) Sri Padmanabha Teertharu ,

H.H. Sri Kavindra Teertharu, H. H. Vageesha

Teertharu every year by the Plaintiff Mutt.

7. The Suit property is described in the Schedule

to the Plaint as under :

All the land measuring 100 acres

bearing old Sy. No. 239 and New Sy.

No. 192 of Anegundi village,Gangavathi Taluka, Raichur District

bounded on the East, West, South and

North by Tungabhadra river, popularly

known as Nava Vrindavanagaddi. The

extent of the land at present visible over

the matter is 27 acres 30 guntas as per

the survey and confirmed by the HighCourt of Karnataka at Bangalore.

8. The case of the Plaintiff is recapitulated as

under :


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a. The Suit property is popularly known as

Navavrindavana Gaddi and is in the exclusive

ownership and possession of the Plaintiff since time

immemorial. The Plaintiff Uttaradi Mutt , as recorded

by the historians , was the prime Pontifical seat of Sri

Madhwacharya, the founder of Madhwa Sect of

Brahmins. Though the Plaintiff Mutt was in existence

from the time of Sri Hamsanamak Paramatma, Sri

Madhwacharya revived the Mutt and is therefore

considered as the first Peetadhipathi of the Plaintiff

Mutt. Madhwacharya was succeeded by SriPadmanabha Teertharu as the Peethadipathi of the

Plaintiff Mutt. Sri Narahari Teertharu succeeded

Sripada Teertharu.

b. As recorded by the historians, centuries later

the Defendant Mutt was established by one of the

disciples of the Plaintiff Mutt . During the time of Sri

Ramachandra Teertharu , the then Peethadipathi of


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Uttaradi Mutt, Sri Vibhudendra Teertharu , disciple of

Ramachandra Teertharu, founded the Poorvadi or Sri

Raghavendra Swami Mutt, also known as

Sumateendra Mutt.

c. Navavrindavana Gaddi is situated in the

midst of the river Tungabhadra in the erstwhile

Anegundi Samsthana. According to the then

prevailing measurements in the State, Navavrindavana

Gaddi measured 100 Acres in extent and was bearing

Sy. No. 239. One Peshkar Krishna Rao of Anegundi

was the owner of the Navavrindavana Gaddi island.

Peshkar Krishna Rao conveyed the Navavrindavana

Gaddi to Sri Satyadhyana Teertharu , the then

Peethadipathi of the Plaintiff Mutt by way of a

registered Sale Deed dated 26-03-1916. Pursuant to

the said conveyance of the land, the khata was

transferred in the name of the Plaintiff Mutt. The Suit

property has been in exclusive possession of the

Plaintiff Mutt.


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d. The Defendant Mutt and the then

Peethadipathi of Sosale Vyasaraja Mutt put forth a

false claim of their joint ownership of the Suit

property along with the Plaintiff and got their name

entered in the Records of Rights in about the year

1959 in respect of 1/3 share each. As such, the

Plaintiff Mutt filed a Suit against the Defendant Mutt

and Sosale Vyasaraja Mutt for Declaration of title and

other reliefs in O.S. No. 65/1 of 1959-60 before the

Court of the Munsiff at Gangavati. On contest, the

said Suit came to be decreed on 30-03-1968 declaring

the Plaintiff Mutt as the absolute owner of the Suit

property.

e. The Appeal filed by the Defendants therein

before the Civil Judge at Raichur in R.A. No. 45/1968

came to be dismissed by the said Court by its

Judgment dated 02-02-1972. The further Appeal filed

by the Defendants therein before the Hon'ble High

Court of Karnataka was also dismissed, thereby the


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Judgment and Decree passed in O.S. No. 65/1 of

1959-60 have become final and conclusive.

f. The Plaintiff Mutt has been performing daily

Poojas, Hastodakas, annual Aradhanas and other

religious rituals of Sri Pradmanabha Teertha Swamiji,

Sri Kaveendra Teertha Swamiji and Sri Vageesha

Teertha Swamiji ever since the Vrindavanas were built

by the Plaintiff mutt. There was no interference by

any one in the performance of the rituals by the

Plaintiff mutt.

g. In the Plaint Schedule property , there are

nine Vrindavanas of three Madhwa Mutts viz., 1) Sri

Uttaradi Mutt 2) Sri Raghavendra Swami Mutt and 3)

Sosale Sri Vyasaraya Mutt . Of the nine Vrindavanas,

four Vrindavanas that of Sri Padmanabha Teertharu,

Sri Kaveendra Teertharu , Sri Vageesha Teertharu and

Sri Raghuvaryaru exclusively belong to the Plaintiff

Mutt and the Plaintiff Mutt has been performing


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annual Aradhanas to the exclusion of the Defendant

Mutt and others. The Defendant has no manner of

right , title or interest over the Vrindavanas belonging

to the Plaintiff Mutt. The Defendant at no point of

time has performed the Aradhanas of the said four

Yatis ( Saints ) . Frustrated by the failure in the earlier

Suit and taking cue from the litigations raised against

the Plaintiff Mutt by the Peethadipathi of Sosale Sri

Vyasaraya Mutt, the Defendant approached the

Special Deputy Commissioner, Raichur and made an

Application on 31-10-1984 to treat the Nava

Vrindavana Gaddi as an Endowment under the

provisions of the Hyderabad Endowment Regulations.

In spite of the Decree in favour of the Plaintiff, the

Defendant , in collusion with Sri Sosale Vyasaraya

Mutt, is trying to interfere with the possession and

enjoyment of the Suit property and in particular during

the period of Aradhanas of four Vrindavanas of the

Plaintiff Mutt and is threatening to enter into the Suit

property.


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h. Pursuant to the application filed by the

Defendant on 31-10-1984, the Special Deputy

Commissioner, Raichur, without holding any enquiry,

passed an Order on 21-11-1984 and the said Order

was challenged by the Plaintiff Mutt before the

Commissioner of Religious and Charitable

Endowments in Appeal No. ADM.VII.AP.18/84-85 .

By his Order dated 07-11-1987, the Commissioner for

Religious and Charitable Endowments allowed the

said Appeal by holding that the Nava Vrindavana

Gaddi is not an Endowment and that the provisions ofthe Hyderabad Endowment Regulations Act were not

applicable to Nava Vrindravana Gaddi . Aggrieved by

the said Order, the Defendant Mutt and the other

Mutts filed Writ Petition before the Honble High

Court of Karnataka in W.P. No. 17108/1987. By itsOrder dated 22-11-1989, the Honble High Court

dismissed the said Writ Petition by holding to the

effect that it is not the case of the parties that the Nava


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Vrindavana in question is an Institution coming under

the said Regulations. In spite of the Order passed by

the Honble High Court of Karnataka, the Defendant

Mutt again obtained an Order from the Deputy

Superintendent of Police, Gangavathi to perform

Aradhana of Kaveerndra Teertharu from 6-00 a.m. on

23-03-1991 to 12-00 p.m. on 24-03-1991 and the

Plaintiff Mutt to perform Aradhana of Sri Kaveerndra

Teertharu from 12-00 p.m. on 24-03-1991 till 6-00

p.m., of 25-03-1991. Similar Orders were passed in

respect of performing annual Aradhana of Sri

Vageesha Teertharu falling on 1st, 2nd and 3rd April,

1991. By filing Writ Petition in W. P. No. 7415/1991

before the Honble High Court of Karnataka, the

Plaintiff challenged the said Order of the Dy. S.P. The

Honble High Court passed an interim Order of Stay

on 22-03-1991. In view of the prevailing

circumstances and the Stay Order of the Honble High

Court, neither the Plaintiff nor the Defendant could

perform annual Aradhana of Sri Kaveendra Teertharu


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in the year 1991. The Defendant did not come to the

Suit property on the occasion of annual Aradhana of

Sri Vageesha Teertharu on 1st, 2

nd and 3

rd April 1991

and the Plaintiff alone performed the Aradhana. By its

Order dated 26-03-1991, the Honble High Court of

Karnataka, allowed the Writ Petition and quashed the

Order passed by the Taluka Executive Magistrate,

Gangavati.

i. By publishing its Almanac ( Panchanga) for

the year 1992-93, ( Angeerasa Samvatsara ) and

circulating the same all over the States of Karnatakaand Andhra Pradesh, the Defendant Mutt stated that it

would perform the annual Aradhana of Sri Kaveendra

Teertharu and Sri Vageesha Teertharu from 10-04-

1992 to 12-04-1994 at Nava Vrindavana Gaddi and

called upon the people in large numbers to attend theAradhana. Thereby , the Defendant intended to

interfere with the Plaintiff Mutts possession and

enjoyment of the Suit property and performance of


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Aradhana by it. The Defendant is trying to perform

annual Aradhanas of Sri Kaveendra Teertharu and

Vageesha Teertharu at Nava Vrindavana Gaddi with

an object of creating fresh evidence of non-existing

rights. The Plaintiff Mutt made preparations from 09-

04-1992 and celebrated Aradhana on 10th and 11

th

April . On 11-04-1992, the Defendant along with

numerous persons started entering the island after 12-

00 a.m. Though the Police had assured to give

protection to the Plaintiff for 3 days, later expressed

their helplessness . The Police asked the Plaintiff to

come out after 12-00 a.m. of 11-04-1992 to prevent

untoward incidents. As such, the Plaintiff could not

celebrate Aradhana on 12-04-1992. The Plaintiff

apprehends that the Defendant and its disciples would

trespass into the Suit property on the annual Aradhana

of Sri Vageesha Teertharu on 19th , 20th and 21st

April 1992.


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9. Before the trial Court , the Defendant has

filed its Written Statement. On 15-12-2001, the

Defendant has filed its detailed further Written

Statement.

10. In its Written Statement, the Defendant has

contended that the Suit of the Plaintiff without seeking

the relief of declaration of title and without seeking

declaration regarding claim over the Vrindavanas and

without seeking declaration regarding primacy over

the Vrindavanas , is not maintainable. The Defendant

has further stated that the intention of the Plaintiff is to

have exclusive right and claim over the Vrindavanas

of nine Madhwa Saints located in the property called

Nava Vrindavana Gadde. The Defendant has further

stated that though the Plaintiff has styled the Suit as

one for Perpetual Injunction, the intention of the

Plaintiff is to prevent the other Mutts from having

access to the Holy Vrindavanas and perform Poojas

and Aradhanas. The Defendant has further pleaded


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that there is no nexus between the rights over the

property and right to worship and that the right to

property does not include in its fold right to worship

and that it is for these reasons that in the earlier

proceedings the Honble High Court of Karnataka has

given direction to the litigating parties to get their

religious rights established and that it is for the said

reason that the right to worship and to perform

Aradhanas came to be protected time and again. The

Defendant has further stated that the Vrindavanas are

Endowments coming under the Hyderabad

Endowments Regulations Act and that therefore Civil

Courts have no jurisdiction to decide the matter. The

Defendant has further stated that Vrindavanas being

religious institutions and places of worship, no person

can claim them to be his private properties. The

Defendant has further stated that in the alleged Sale

Deed relied on by the Plaintiff, there is no reference to

the existence of nine Vrindradanas though they are in

existence for centuries . The Defendant has further


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contended that the Suit of the Plaintiff is barred by

limitation.

11. In its further Written Statement, the

Defendant has denied the allegation that the Plaintiff is

the owner of and in possession of the Plaint Schedule

property known as Nava Vrindavana Gaddi. The

allegations that the land in Sy. No. 239 was measuring

100 acres and that it was owned by Peshkar Krishna

Rao and that the said Peshkar Krishna Rao conveyed

the same to the Plaintiff on 26-03-1916 are denied by

the Defendant. The Defendant has further stated thatKrishna Rao was not the owner of the said land and

that he had no right to sell the same to any one. The

Defendant has further stated that the Sale Deed alleged

to be executed by the said Peshkar Krishnara Rao is a

fabricated and got up document. The allegation thatpursuant to the Sale Deed executed by Krishna Rao,

the Plaintiff is in possession of the Suit land is denied

by the Defendant . The Defendant has further stated


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that in the alleged Sale Deed executed by Krishna Rao

, it is not stated as to when and from whom he had

acquired Sy. No. 239 land.

12. In its further Written Statement, the

Defendant has stated that the revenue records show

that the land in Sy. No. 239 is still existing and it is

not changed as Sy. No. 192 at any point of time and

that as per the revenue records Sy. No. 192 is an

agricultural land and is used as such, whereas the

Nava Vrindravana Gaddi is a hillock and banjara

(barren ) land. The Defendant has further stated that asper the village map of Anegundi, the island portion is

in midst of Tunga-Bhadra and is shown as Sy. No. 167

and that this aspect falsifies the claim of the Plaintiff

that Nava Vrindavana Gaddi land bears Sy. No. 192.

The Defendant has further stated that the revenuerecords show Sy. No. 192 as agricultural land and that

no revenue receipts are produced by the Plaintiff to

show any crop grown by it and to show its possession


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of the said land. While admitting the allegation that in

the year 1959, the records relating to the land was

entered in the joint names of the three Mutts , the

Defendant has further averred that it was so entered as

the Vrindavanas of the Saints in the leaneage of

Madhwacharya were existing in the said property. The

Defendant has further stated that no one including the

Plaintiff Mutt has exclusive right of worship and to

perform Aradhanas , Poojas etc., and thereby prevent

the right of access to the Vrindavanas. The Defendant

has further stated that the findings of the Court in its

Judgment in O.S. No. 65/1/1959-60 cannot be

construed as declaring the Plaintiff as the owner of the

Vindavanas situated in the said land since no person or

Mutt can claim ownership over the Vrindavanas and

over the place where they are situated. The Defendant

has further stated that there is no record to show that

the Vrindavanas are situated in the area of the land

claimed by the Plaintiff.


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13. In its Written Statement the Defendant has

averred that when Anegundi Samsthana was in

existence, the Suit land had been taken over by the

Samsthana and on an Application filed by the

Plaintiff, the Samsthana gave back only 14 acres of

land in Suit Survey number and that there is no

mention that in the said area of 14 acres given to the

Plaintiff, the Vrindavanas are situated. The Defendant

has further stated that Anegundi Samsthana had

imposed conditions on the Plaintiff Mutt not to

obstruct other Mutts from having access to the

Vrindavanas and from performing Aradhanas, Poojas

etc., and that this condition makes it clear that the

Vrindavanas are not situated in the area of 14 acres

released to the Plaintiff Mutt and that therefore the

Plaintiff is estopped from seeking injunctive relief

relating to access to Vrindavanas and performance of

Aradhanas and Poojas of the Saints whose

Vrindavanas are situated in the portion of the Suit

Survey number. The Defendant has further stated that


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the Vrindavanas situated in the Suit Survey number

are deemed endowments within the definition of

Hyderabad Endowments (Regulations) Act and Rules,

wherein it is provided that such Endowments cannot

be private properties of any individuals or Mutts. The


not salable commodities and that therefore Peshkar

Krishna Rao had no right to sell the Vrindavanas of

the Saints.


stated that when the Plaintiff Mutt started interfering

with the activities and functions of the Defendant Mutt

, the Defendant approached the Deputy Commissioner

(Endowments) , Raichur, who allowed performance of

Aradhanas and other religious functions. The

Defendant has further stated that the Honble High

Court of Karnataka in the Writ Proceedings has stated

that the right of the parties to worship being a civil

right, has to be established in a Civil Suit. The



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situated in a public place of religious worship and that

therefore no injunction can be granted. The Defendant

has further stated that no where in the Plaint, the

Plaintiff has stated that Vrindavanas are its properties

and that this itself clarifies that the Plaintiff is aware of

the legal position regarding Vrindavanas. The

Defendant has further stated that the right got under

conditional re-grant made in respect of the portion of

Suit Survey number by Anegundi Samsthana came to

be extinguished by the reason of breach of condition

of grant by the Plaintiff by claiming exclusive right to

perform customary Aradhanas , Poojas etc.


denied the allegations that out of nine Vrindavanas,

the Vrindavanas of Sri Padmanabha Teertharu, Sri

Kaveendra Teertharu , Sri Vageesha Teertharu and

Sri Raghuvaryaru exclusively belong to the Plaintiff

Mutt and that the Defendant is in no way concerned

with the said four Vrindavanas . The allegation that


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the Plaintiff Mutt is exclusively performing Aradhanas

of the said four Saints is denied by the Defendant.

Further, the Defendant has pleaded that it ( Defendant

Mutt) has also performed Aradhanas regularly every

year.

16. In its Written Statement , the Defendant has

denied the allegation that the Defendant Mutt is

interfering with the peaceful possession and

enjoyment of the Plaint schedule property by the

Plaintiff . While admitting about the proceedings

before the Honble High Court and other Authorities,the Defendant has further stated that in the said

Proceedings it was not dealt whether or not the

Vrindavanas are endowments under the Hyderabad

Endowments Regulations Act and that therefore the

Plaintiff cannot derive any benefit from the Orderspassed in those Proceedings. The Defendant has

further stated that while disposing of the Writ Petition,

the Honble High Court has explicitly stated that it is


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for the parties to establish their right to perform

Aradhana in a Civil Suit. While admitting the

allegation regarding publication of Panchanga (

Almanac ) by the Defendant Mutt , the Defendant has

further denied the other allegations made in Paragraph

No. 11 of the Plaint . The allegation that without

having right, the Defendant Mutt is scheming and

planning to perform Aradhanas is denied by the

Defendant . The Defendant has further stated that the

Suit of the Plaintiff is barred by limitation. The

Defendant has further stated that the Suit of the

Plaintiff being only in respect of immovable property,

cannot be construed as a Suit regarding the Nava

Vrindavanas and the rights of the Mutts to perform

Aradhanas, Poojas etc., and that therefore the reliefs of

injunction prayed for by the Plaintiff cannot be

granted.

17. On the above Pleadings of the parties, the

trial Court has framed the following Issues .


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1. Whether the Plaintiff proves that he (

Plaintiff ) is in possession and

enjoyment of the suit schedule

property as on the date of suit and

performance of annual aradhana as

pleaded in the plaint?

2. Whether the Plaintiff proves alleged

interference by the Defendant ?

3. What order or decree ?

18. The Plaintiff has examined its GPA Holder

and the Peethadhipathi of the Mutt as P.W.1 and

P.W.4 respectively besides examining two other

witnesses as P.W. 2 and P.W.3. Eighty one documents

have been marked for the Plaintiff as Ex.P-1 to Ex.P-

81. The Defendant examined its GPA Holder as

D.W.1 besides examining four other witnesses as

D.W.2 to D.W.5. Three hundred and forty five

documents have been marked for the Defendant as

Ex.D-1 to Ex.D-345.


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19. After hearing the arguments of both the sides,

the trial Court has dismissed the Suit of the Plaintiff

with costs. The same is assailed in this Appeal.

20. In the Memorandum of Appeal, besides

narrating the case of the parties before the trial Court,

the following main grounds of Appeal are raised.

1) The Judgment and Decree of the trial Court

are opposed to the admitted facts and established

principles of law.

2) The discussions, reasonings and conclusions

of the trial Court on Issue No. 1 are not sustainable in

law and on facts. The trial Court has failed to look

into the documents produced by the Plaintiff to prove

its title and possession of the Suit property.

3) The trial Court has failed to apply its mindseriously to the actual controversy involved in the

Suit.


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4) The trial Court has erred in holding that the

measurement of the property shown in the Decree in

O.S. No. 65/1/1959-60 is different from the

measurement of the Suit Schedule property. From the

documents produced by the Plaintiff, the trial Court

should have held that the subject matter of the Suit

was not just 14 acres 7 guntas , but it was the entire

island of Nava Vrindavana Gaddi bearing Sy. No. 192

surrounded on all the four sides by Tungabhadra river.

5) The observation of the trial Court that the

Plaintiff has not sought for the relief of Declaration,but has only sought for the relief of Injunction to

restrain the Defendants from interfering with

performance of the Poojas , Aradhanas etc., is wrong.

The trial Court has failed to understand the scope of

the Suit.

6) The trial Court has failed to note that the

Suit is not for establishement of any religious rights,


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but is in respect of the established title and possession

of immovable property known as Nava Vrindavana

Gaddi.

7) At Paragraph No. 27 of the Judgment, the

trial Court has held that the Defendant Mutt has

admitted the Decree passed in O.S. No. 65/1-1959-60.

But the trial Court has wrongly held that the said

Decree cannot be construed to mean that the Plaintiff

has been declared as the owner of the Vrindavanas

located in the Suit schedule land.

8) In its Judgment, the trial Court observes

that the Defendant has pleaded that in the previous

Suit, the Plaintiff has not pleaded about the existence

of the Nava Vrindavanas in the Suit Schedule property

and that therefore, the declaration given in the earlier

Suit is only in respect of the land bearing Sy. No. 192

of Anagundi village measuring 14 acres 7 guntas

and not over the Vrindavanas . The trial Court has


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failed to consider the admissions of the Defendant and

its witnesses both in the previous Suit and in the

present Suit.

9) The Defendant has admitted in its Pleadings

and in the evidence about the existence of the

Vrindavanas in the Suit property. The trial Court has

dismissed I.A. No. 26 filed by the Defendant under

Order 6 Rule 17 of CPC seeking amendment of the

Written Statement in this regard. The effort made by

the Defendant to raise an Issue regarding location of

the Vrindavanas was also rejected by the trial Court.As such, in the absence of an Issue in this regard, the

trial Court has erred in holding that the Vrindavanas

are not situated in the Suit property.

10) The question of existence of the

Vrindavanas in the Suit property has already been

decided in O.S. No. 65/1/59-60 and R.A. No. 45/1968

. The Application as per Ex.P-5 dated 12-03-1959


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submitted to the village accountant by the

Peethadipathi of the Defendant Mutt and its P.A.

Holder and survey sketch as per Ex.D-335 show the

existence of the Vrindavanas in the Suit schedule

property. But the trial Court has erred in permitting

the Defendant to raise the question of existence of

Vrindavanas in the Suit schedule property. The trial

Court has failed to note that the Defendant is estopped

from raising the said contention. The trial Court has

failed to note that similar contentions raised in the

earlier proceedings by the Defendant have been

negatived time and again . By picking out an out-of-

contest sentence from the evidence of P.W.1, the trial

Court has held that the Vrindavanas are not situated in

the Suit property.

11) Relying upon the got up documents as perEx.D-30 to Ex.D-204 and uncorroborated testimony of

D.Ws. 1 to 4 and without the plea of customary right

set-up by the Defendant in the Written Statement and


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without any Issue being formulated in this regard, the

trial Court has observed that the Defendant has

established a customary right. Further, the trial Court

has erred in holding that the documents as per Ex.D-

30 to Ex.D-204 are admissible in evidence and are

proved under Section 90 of the Evidence Act. Further,

the trial Court has failed to note that D.W.1 was not

competent to give evidence on the said documents in

view of Sections 45, 47, 65 and 67 of the Evidence

Act.

12) While holding that the documents as per

Ex.P-30 to Ex.D-204 are admissible in evidence being

documents more than 30 years old, the trial Court has

failed to note that the conditions required for

application of Section 90 of the Evidence Act are not

complied with by the Defendant. The trial Court has

further failed to consider the decisions relied on by the

Plaintiff in this regard. The trial Court has failed to

note that D.W.4 is an interested witness and that the

documents as per Ex.D-281, Ex.D-291 and Ex.D-294


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R.A. No. 123/2014 - J32

which are alleged to be in the hand writing of Sri

Hanumantacharya Joshi do not satisfy the requirement

of law.

13) The observation of the trial Court that

Ex.D-30 to Ex.D-204 and Ex.D-344 go to show that

the Defendant has been performing Poojas and

Aradhanas of the Vrindavanas is not correct, as none

of these documents has been proved in accordance

with law. The evidence of the Peetadhipati of Sri

Raghavendra Mutt ( Ex.P-9 and Ex.D-325 ) and the

evidence of the agent of the Defendant Mutt ( Ex.D-328) prove that Ex.D-30 to Ex.D-204 are suspicious

and got up documents.

14) The trial Court has failed to appreciate that

the Peetadhipati of the Defendant Mutt who was very

much available at the time of recording of evidence ,

has not been examined by the Defendant . Non-


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examination of the Peetadhipati of the Defendant is

fatal to the case of the Defendant.

15) The observations and findings of the trial

Court regarding Ex.D-343 and Ex.D-344 are contrary

to the findings regarding the said documents in the

Judgments in O.S. No. 65/1-59-60 , Misc. Appeal No.

188/4 of 1964, Misc. Second Appeal No. 70/1965 and

Appeal No. 357/1977 of Karnataka Administrative

Tribunal.

16) While coming to the conclusion that 14

acres 7 guntas land is the granted land and theVrindavanas are situated adjacent to the said land and

are not within the boundaries of the said land, the trial

Court has ignored to consider the documents which

have become final and binding.

17) The observation of the trial Court at

Paragraph No. 29 of the Judgment regarding

genealogy of Madhwa Sect and worshiping of


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Vrindavanas are not sustainable. The trial Court has

relied on some pages of Biography as per Ex. D-14 of

Sri Raghavendra Swamiji . The trial Court has

ignored the Mysore Gazette as per Ex.P-14, Bombay

Gazette as per Ex.P-15 and document as per Ex.P-16

showing the Plaintiff Mutt as the moola (original)

Mutt of Sri Madhwacharya. The observation of the

trial Court that Ex.D-14 is admitted and not disproved

is incorrect, because the Plaintiff has challenged the

contents of Ex.D-14 during the course of cross-

examination of D.W.1. Further , Ex.D-14 is not

proved by the Defendant in accordance with the

provisions of the Indian Evidence Act.

18) The observations of the trial Court at

Paragraph No. 29 of the Judgment regarding

acquisition of customary rights are not sustainable inthe absence of plea in the Written Statement, evidence

on the point, issue on the aspect and arguments

canvassed by the Defendant in this regard.


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19) The finding of the trial Court that the

Defendant has acquired customary rights over the

Vrindavanas is beyond the Pleadings of the parties .

The trial Court has made out a new case in favour of

the Defendant.

20) The Suit of the Plaintiff is for Perpetual

Injunction simpliciter .The Plaintiff has not sought for

any declaration of Pooja or Aradhana rights. The trial

Court has failed to understand the reliefs prayed by the

Plaintiff. The trial Court has failed to note that the

Suit of the Plaintiff is only in respect of immovable

property. The reasonings of the trial Court in this

regard in Paragraph No. 31 of the Judgment are

beyond the scope of the Suit.

21) The trial Court has failed to note that the

title and possession of the Plaintiff over the Suitproperty have been upheld in the earlier Suit between

the parties and the existence of the Vrindavanas in the


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Suit property have been unequivocally admitted by the

Defendant.

22) The observation of the trial Court that the

Plaintiff has not produced any document to show the

existence of the Vrindavanas in the Suit schedule

property is not correct. The Court has failed to look

into the documents as per Ex.P-3 to Ex.P-7, Ex.P-9,

Ex.P-10, Ex.P-16, Ex.P-18, Ex.P-27, Ex.P-36, Ex.P-

40, Ex.P-43 to Ex.P-47, Ex.P-63, Ex.D-325, Ex.D-

326, Ex.D-329 and Ex.D-335.

23) The understanding of the Judgment in O.S.

No. 130/1978 ( Ex.P-44 ) by the trial Court is wrong.

The Plaintiff has produced the said Judgment to

emphasize that in an identical dispute in respect of the

same Suit property and on identical Pleadings , Issues

and evidence, a Decree for Perpetual Injunction has

been obtained by the Plaintiff against Sri Sosale

Vyasaraja Mutt. In the Suit property, Vrindavana of

Sri Sudheendra Teertha Swamaji of Defendant Mutt is

also situated and that the Plaintiff has never obstructed


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the Defendant from entering upon the Suit property for

performance of Aradhana of the said Vrindavana. The

title and the possession of the Plaintiff having been

declared in the Judgments as per Ex.P-36, Ex.P-37 ,

Ex.P-41, Ex.P-43 and Ex.P-44, it is for the Defendant

to file a Suit for Declaration of its alleged Pooja rights

in respect of Vrindavanas of Sri Padmanabha

Teertharu, Sri Kaveendra Teertharu and Sri Vageesha

Teertharu and it is not for the Plaintiff to file a Suit for

Declaration as observed by the trial Court. The trial

Court has failed to refer to Ex.P-80 and Ex.P-81 which

would show that in an identical Suit in respect of the

Vrindavana of Sri Narahari Teertha Swamiji situated

in Sy. No. 76 of Venkatapur village, a similar Decree

for Perpetual Injunction has been granted against the

Defendant which has been confirmed by the Appellate

Court.

24. The trial Court has failed to note that the

Books as per Ex.D-3 to Ex.D-27 are written by living


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authors and have no relevance regarding title or

possession of the Suit property or existence of

Vrindavanas in the Suit property.

21. a. In the present Appeal, the Appellant has

filed application (I.A.No.2) under Order 41 Rule 27 of

CPC seeking production of certified copies of the

Judgment dated 26-09-1966 passed by the Honble

High Court of Karnataka in Miscellaneous Second

Appeal No.70/1965 and Judgment dated 17-08-1965

passed by the Court of Civil Judge Raichur in

M.A.No.188/4 of 1964.

b. In the Affidavit accompanying the application,

besides stating about various documents marked as

Exhibits before the trial Court, proceedings between

the parties before the different fora and I.A.Nos.26

and 27 filed by the Defendant before the trial Court,

the GPA holder of the Appellant/Mutt has stated that

the Judgments now sought to be produced were

between the same parties in respect of same subject


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R.A. No. 123/2014 - J39

matter decided in an earlier proceeding and that said

Judgments would help the Court to arrive at a proper

decision on questions involved in the Suit. The

deponent has further stated that said Judgments could

not be produced before the trial Court, as the

Appellant was advised that since there was no Issue on

the question of res-judicata or estoppel, there was no

necessity of producing the said documents. The

deponent has further stated that as the documents now

sought to be produced are certified copies, no further

evidence is necessary in this regard.

c. The Respondent has filed its objections to the

Application by way of Counter Affidavit stating that

the Appellant was aware of the said Judgments whose

certified copies are sought to be produced in this

Appeal and that therefore, at this stage, the Appellant

cannot be permitted to produce the said documents as

additional evidence. The Respondent has further stated

that in view of the provisions of Government Grants

Act and Rules, no contrary findings regarding the


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R.A. No. 123/2014 - J40

circumstances leading to vesting of land in

Government will amount to nullifying the process of

vesting and that the admission made by the Appellant

in Ex.D-43 regarding vesting of land is binding on it

and that therefore additional evidence proposed by the

Appellant is not relevant. The Respondent has further

stated that the Appellant has not shown sufficient

cause for production of additional evidence in this

Appeal.

22. a. In the present appeal, the Appellant has

filed application under Order 14 Rule 5 read withSection 151 of CPC praying for framing of an

additional Issue.

b. The additional Issue sought to be framed

reads thus:

Whether the judgment anddecree in O.S.No.65/1/59-60 and

R.A.No.45/1968 operates as

resjudicata against the

Defendant/Respondent ?


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R.A. No. 123/2014 - J41

c. In the Affidavit accompanying the

Application , the Deponent has averred about the

proceedings in O.S.No. 65/1/59-60, R.A.No.45/1968,

W.P.No.16975/1987, W.P.No.16991/1987 and

W.P.No.17108/1987, proceedings before the

Karnataka Appellate Tribunal and about proceedings

before Special Deputy Commissioner. The deponent

has further stated that the question of title of the

Plaintiff over the Suit property and its possession over

Nava Vrindavana Gadde has become final and

binding on the Defendant. The deponent has further

stated that the documents produced by the Plaintiff

prove that the Plaintiff-Mutt is the absolute owner and

in possession of Nava Vrindavana Gadde in

Sy.No.192 measuring 27 acres 30 guntas. The

deponent has further stated that before the Trial Court,

the Plaintiff had filed an application to raise an

additional issue on the question of bar of res-judicata

and that the trial court, in its judgment has failed to

consider the contention of bar of res-judicata raised by


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R.A. No. 123/2014 - J42

the Plaintiff. The deponent has further stated that in

view of findings in O.S.No.65/1/59-60 and in the

Judgment of the Karnataka Appellate Tribunal as per

Ex.P-36, it is necessary to frame an additional issue as

proposed regarding res-judicata. It is further stated that

the parties to the Suit have understood their respective

case and adduced evidence regarding the proposed

Issue.

d. The Respondent has filed Objections to the

present applications stating that the Suit in

O.S.No.65/1/59-60 was regarding mutation of the

name of the Respondent Mutt and Sosale Sri

Vyasaraja Mutt along with the Appellant Mutt in the

Record of Rights and that said Suit was in respect of

14 acres 7 guntas land in Sy.No.192 and not entire

Sy.No.192. The Respondent has further stated that in

the present Suit, the Plaintiff has taken an untenable

stand that Nava Vrindavana Gadde means land

bearing Sy.No.192 measuring 14 acres 7 guntas land

and that nine Vrindavanas are situated in 14 acres 7


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R.A. No. 123/2014 - J43

gunts of land, by overlooking the fact that in the Suit

in O.S.No.65/1/59-60, the Plaintiff itself has not

whispered about the existence of nine Vrindavanas in

the area of 14 acres 7 guntas. The Respondent has

further stated that the Exhibits marked for the Plaintiff

and admission of the Plaintiff in O.S.No.65/1/1959-60

go to prove that Navavrindavanas are outside 14 acres

7 guntas of land. The Respondent has further stated

that in R.A.No.45/1968 the Appellate Court has held

that the location of Vrindavanas in the land measuring

14 acres 7 guntas is not established. The Respondent

has further stated that contents of Ex.P.14 clearly

show that Vrindavanas are situated outside 14 acres 7

guntas of land. The Respondent has further stated that

in view of said facts, framing of an additional Issue as

proposed by the Appellant is not necessary.

23. a. on 07-01-2012, the Respondent has

filed an Application under Order 41 Rule 27 of CPC


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R.A. No. 123/2014 - J44

praying for receiving 31 documents annexed to the

Application as additional evidence.

b. The documents sought to be produced as

additional evidence are the documents relating to

survey of Sy. No. 192 , correspondences made

regarding survey and copy of deposition of P.W. 3 in

O.S. No. 65/1-1959-60.


Application, besides narrating in detail the

proceedings and correspondences relating to survey

settlement, the Power of Attorney Holder of the

Respondent has stated that the documents now sought

to be produced as additional evidence would go to

show that the location of 14 acres 7 guntas in Sy.

NO. 192 is deliberately distorted and wrongly depicted

in Ex.D-335. The Deponent has further stated that the

course of the river has not under gone any change

even now and it flows at Navavrindavana Gaddi from


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R.A. No. 123/2014 - J45

south-west to north-east whereas in Ex.D-335 , it is

shown as south to north and that this shows that Ex.D-

335 is a concocted document. The Deponent has

further stated that the documents sought to be

produced were not within the knowledge of the

Defendant Mutt as the Defendant Mutt was not a party

to the survey proceedings. The Deponent has further

stated that under these circumstances, re-survey has to

be conducted in respect of Sy. No. 192. The Deponent

has further stated that the Appellant has played fraud

on the Revenue and Survey Authorities in getting the

area of the Suit property corrected from 14 acres 7

guntas to 27 acres 30 guntas. The Deponent has

further stated that the said documents are necessary for

the proper adjudication of the rights of the parties and

to reveal the factum of fraud played by the Appellant /

Plaintiff Mutt.

d. The Appellant has filed Statement of

Objections to the present Application denying the

allegation that it (Appellant) has played fraud on the


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Revenue and Survey Authorities in getting the area of

the Suit property corrected from 14 acres 7 guntas to

27 acres 30 guntas. The Appellant has further stated

that the said documents were subject matter of

proceedings before the Revenue Authorities, Survey

Authorities, Revenue Appellate Tribunal and the

Honble High Court of Karnataka and that the validity

of these documents has been upheld. The Appellant

has further stated that this Court is not the proper

forum for challenging the said survey proceedings.

The Appellant has further stated that there is no scope

in this Appeal for directing the Survey Authorities to

conduct resurvey.

24. a. On 08-06-2012, the Respondent has

filed an Application under Order 14 Rule 5 R/w

Section 151 of CPC praying for framing of anadditional Issue as under :

Whether the Nava Vrindavanas

are located / situated within the area

claimed by the Plaintiff comprised in


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R.A. No. 123/2014 - J47

NavavrindavanaGadde bearing Sy.

No. 192 of Anegundi village,

measuring 14 Acres 07 Guntas or

whether the said Nava Vrindavanas

are located outside the said area

measuring 14 Acres 07 Guntas ?

b. In the Affidavit accompanying the

Application, the PA Holder of the Respondent Mutt

has stated that in its Written Statement and further

Written Statement in O.S. No. 65/1-1959-60, the

Defendant has specifically contended that

Navavrindavanas are not situated within the area of

14 acres 7 guntas land and that the Plaintiff cannotclaim ownership over the Navavrindavanas and that

the Plaintiff is mis-interpreting the Judgment in O.S.

No. 65/1-1959-60 to claim that the Navavrindavanas

were also included in the Decree in the said Suit. The

Respondent has further stated that as the Plaintiff iscontending that the Judgments in O.S. No. 65/1/1959-

60 and R.A. No. 45/1968 operate as res-judicata


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R.A. No. 123/2014 - J48

against the Defendant, it is necessary to frame an

additional Issue as proposed.

c. The Appellant has filed Objections to the

present Application stating to the effect that framing

of an additional Issue as proposed by the Respondent

is not necessary.

25. a) On 13-03-2013, the Respondent has

filed an Application under Section 151 of CPC

praying for direction to the concerned Survey

Authorities to conduct survey of Sy. No. 192 of

Anegundi village.

b. In the Affidavit accompanying the

Application , by re-iterating the averments made in the

I.A. filed on 07-01-2012 under Order 41 Rule 27 of

CPC, the Respondent has prayed for direction to the

Survey Authorities to survey the land bearing Sy. No.

192 of Anegundi village.


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R.A. No. 123/2014 - J49

c. The GPA holder of the Appellant has filed

detailed Objections to the Application by way of

Counter Affidavit denying the allegations made by the

Respondent in the Application and further denying the

reasons stated by the Respondent for survey of the

land. The Appellant has further stated that the survey

proceedings have become final and that no Order for

fresh survey of the land can be made.

26. a. On 05-01-2015, the Respondent has


Section 151 of CPC seeking production of thedocuments annexed to the Application as additional

evidence.

b. The documents sought to be produced as

additional evidence are : i) true representation of

Ex.P-16 from the Head of Department of TeluguLanguage of Dravidian University, ii) Endorsment

dated 03-01-2015 issued by Tahsildar , Gangavathi

regarding survey in Anegundi village , and iii)


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R.A. No. 123/2014 - J50

Survey sketch prepared by Hampi Development

Authority .


Application, the PA Holder of the Respondent Mutt

has stated that the Appellant is claiming that Pooja

rights were conferred on the Mutt by Raja

Tirumalaraya in the year 1368 Saka which is

equivalent to 1447 AD and this document is marked as

Ex.P-16 , which is emphatically denied by the

Respondent. The deponent has further stated that the

Plaintiff / Appellant has produced Kannada translation

of the said document as per Ex.P-16(a) in which the

year of Saka is tampered as 1368 in the place of 1768

and that the overwriting in the said document is

clearly visible. The deponent has further stated that in

the year 1447 AD , Brindavanas of Sri Padmanabha

Teertharu, Kaveendraru and Vageesha Teertharu were

not in existence. The deponent has further stated that

the regime of Raja Tirumalaraya of Anegundi

Samsthana was during 1845 1865 and that this


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R.A. No. 123/2014 - J51

clearly reveals that the documents produced by the

Appellant / Plaintiff are forged and fabricated- and

that to demonstrate the same, Telugu representation of

Ex.P-16 is now produced. The deponent has further

stated that one Sri Raghavendra Kulkarni has obtained

information from Tahasildar Gangavathi under RTI

Act on 03-01-2015 which goes to show that prior to

introduction of Survey System , the lands were to be

called as Maji or Killah and that only after Survey

system was introduced in the year 1888, the lands

came to be called by Survey numbers and that this

information falsifies the statement in Ex.P-16 that in

Sy. Nos. 112, 113 and 114 , Vrindavanas are situated

and that the Appellant Mutt was permitted to perform

Pooja. The deponent has further stated that in Ex.D-

335 , the flow of Tungabhadra river is shown from

South to North at Navavrindavana Gaddi and that

earlier survey sketches show that Tungabhadra river

flows towards Navavrindavana Gaddi from South-

West and after formation of island , it flows towards


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R.A. No. 123/2014 - J52

North-East . The deponent has further stated that

Hampi Development Authority has conducted survey

of Anegundi village including Navavrindavana Gaddi

wherein the flow of river is shown from South West

towards North-East and that this establishes that Ex.D-

335 is a fabricated document. The deponent has

further stated that the documents now sought to be

produced as additional evidence are necessary to

decide the real controversy involved in the case and

for proper adjudication of the matter.

d. The Appellant has not filed Objections tothe present Application.

27. a. On 20-01-2015 , the Respondent has


Section 151 of CPC seeking permission to produce 16documents as additional evidence.


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R.A. No. 123/2014 - J53

b. The documents sought to be produced are

replies dated 13-01-2015 and 20-01-2015 given by

Sub-Registrar, Gangavathi under RTI Act , certified

copies of Sale Deed obtained in the years 1979 and

1989 along with Kannada translation , Tippani

documents , Akarband record, Reports of Department

of Telugu language of Dravadian University and

Reply dated 03-01-2015 given by Tahasildar ,

Gangavathi under RTI Act.


Application, the PA Holder of the Respondent Mutthas stated that one Sri Raghavendra Albanur had filed

an Application under RTI Act before the Sub-

Registrar , Gangavathi and that the documents

obtained under the RTI Act disclose that the claim of

the Appellant Mutt that a registered Sale Deed wasexecuted by Vakil Krishna Rao in favour of Sri

Satyadhyana Teertharu on 19-03-1916 is a

concocted and fabricated document and that no such


54/138

R.A. No. 123/2014 - J54

Sale Deed was registered between the parties with the

Sub-Registrar, Gangavathi. The deponent has further

stated that the documents No. 1 and 2 now sought to

be produced go to show that pages No. 1 to 3 of Vol. I

, Register No. III relate to Sy. Nos. 314 and 598 of

Chickajantakal village and not Sy. No. 239 of

Anegundi village . The deponent has further stated

that in the Sale Deed produced by the Plaintiff, one

Rama Rao is shown as Sub-Registrar, but the fact is

that on the said date , one Hussain Alikhan was the

Sub-Registrar as per the records. The deponent has

further stated that in the survey proceedings, the

Appellant had produced certified copy of the Sale

Deed obtained on 20-02-1973 issued by the Sub-

Registrar, Gangavathi and that in O.S. No. 74/2010,

the Appellant had produced certified copy of the Sale

Deed obtained on 30-11-1989 issued by the Sub-

Registrar, Gangavathi. The deponent has further stated

that the office of Sub-Registrar, Gangavathi has

furnished information under the RTI Act that the said


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R.A. No. 123/2014 - J55

certified copies of the Sale Deed were not issued by

the office of the Sub-Registrar, Gangavathi and that

the said certified copies are fabricated and concocted

documents. The deponent has further stated that the

Tippani copy obtained under RTI Act discloses that

the extent of cultivable land in Sy. No. 192 is only 14

acres 07 guntas and the rest of the land is Nala

Gaddi Porampok and Hillock area. The deponent has

further stated that moola Tippani shows that Sy. No.

of 192 was in the name of Veera Ramaraja till the year

1935 and that if really Sri Satyadhyana Teertharu had

purchased the land validly under the Sale Deed ,

Mutation Records should have been in the name of

Sri Satyadhyana Teertharu and not Veera Ramaraja .

The deponent has further stated that the Akarband

record now sought to be produced discloses that the

total area of Anegundi village wherein Nadinala is 140

acres, the extent of the land of Uttaradhi Mutt is 14

acres 7 guntas and the extent of Nadinala is reduced to

126 acres and the land of Uttaradi Mutt in the year


56/138

R.A. No. 123/2014 - J56

1975 was changed to 27 acres 30 guntas . The

deponent has further stated that the above said

documents disclose that by playing fraud and in

connivance with the Survey and Revenue Authorities,

the Appellant has concocted documents to claim right

over 27 acres 30 guntas in Sy. No. 192. The deponent

has further stated that the survey re-settlement

conducted in the year 1935 was incorrect and that the

records obtained under RTI Act and produced now go

to show that survey was conducted only in the year

1930 and that no survey re-settlement took place in the

year 1935 and the documents now sought to be

produced show the acts of fraud and fabrication of

public documents by the Plaintiff in order to

unlawfully claim right over Sy. No. 192 to an extent of

27 acres 30 guntas. The deponent has further stated

that the documents now sought to be produced are

necessary to decide the real controversy and proper

adjudication of the case and would enable the Court to

pronounce the Judgment.


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R.A. No. 123/2014 - J57

d. The GPA holder of the Appellant Mutt has

filed Objections to the present Application stating that

the Respondent has filed similar Application and has

produced the same documents before the Honble

High Court of Karnataka, Dharwad Bench in WP No.

111125/2014 and also before the jurisdictional Deputy

Commissioner, Koppal and that therefore the

Respondent cannot prosecute two matters

simultaneously . The Appellant has further stated that

there is enormous delay in the filing of the present

Application since all the proceedings and the

documents referred to by the Respondent were within

its knowledge in the year 1973-74 itself and also

during the trial of the Suit before the trial Court . The

Appellant has further stated that the documents sought

to be produced are not necessary for the purpose of

determining the dispute involved in the Appeal. The

Appellant has further stated that so long as the

Judgment and Decree in the previous proceedings

between the parties stand unchallenged , the


58/138

R.A. No. 123/2014 - J58

Respondent is barred from raising any contention on

the basis of the said documents. The Appellant has

further stated that the matter has attained finality as

the Appellate Court in R.A. No. 45/1968 has held that

the Suit was not only in respect of 14 acres 7 guntas

land in Sy. No. 192 , but was in respect of the land

comprising in the Sale Deed and bounded on all the

sides by the river Tungabhadra. The Appellant has

further stated that its land was forfeited for non-

payment of land revenue and that subsequently on an

Application made by the Appellant Mutt, the forfeited

land was restored by the Raja of Anegundi to the

Appellant Mutt . The Appellant has further stated that

the allegation that only 14 acres 7 guntas was restored

is a false statement. The Appellant has further stated

that it has not suppressed any information while

seeking correction of the extent of land in Sy. No. 192

in the Revenue records. The Appellant has further

stated that after issuing notice to the representative of

the Respondent Mutt and the representative of the


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R.A. No. 123/2014 - J59

other Mutt , survey was conducted in accordance with

law and that the Respondent cannot challenge the said

proceedings before this Court . The Appellant has

further stated that the Sale Deed relied on by it is a

registered document relied on and referred to in

various judicial proceedings between the parties which

Sale Deed has not been questioned by the Respondent

till this day. The Appellant has further stated that the

contentions now raised by the Respondent and the

documents referred to by the Respondent have been

the subject matter of findings in Appeal No. 356/1977

on the file of the Karnataka Appellate Tribunal and in

WP No. 2329/1981 on the file of the Honble High

Court of Karnataka and that therefore the ground of

fraud alleged by the Respondent cannot be entertained.

The Appellant has further stated that the Telugu

representation sought to be produced by the

Respondent is only a procured interpretation to suit the

Respondent and that the alleged translator has not

properly looked into Ex.P-16 document. The


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R.A. No. 123/2014 - J60

Appellant has further stated that the Tippanis and

Revenue records and the sketches now produced by

the Respondent have already been considered in the

Judgments as per Ex.P-36 and Ex.P-37 and that

therefore the Respondent cannot raise the said

contentions before this Court.

28. a. The Respondent has filed an Application

praying for initiation of an inquiry under Section 340

of Cr.P.C., against the Pontiff and the Power of

Attorney Holder of the Appellant Mutt for the

offences under Sections 195-A, 196 , 463 , 464 , 466 ,

471 , 474 and 420 R/w Section 34 of IPC .

b. In the Affidavit accompanying the application ,

the deponent has stated that the claim of the Appellant

/ Plaintiff in O.S.No.65/1 of 1959-60 was restricted toan extent of 14 acres 7 guntas and that later,

suppressing the re-grant Order made by the Raja of

Anegundi and the Decree passed in O.S.No.65/1 of


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1959-60 , the Appellant Mutt by producing certified

copy of the Sale Deed alleged to be supplies on 20-02-

1973 by the office of the Sub-Registrar , Gangavathi,

made representation to the Survey Authorities for

modification of the extent of Sy.No.192 and also

induced one Deputy Director of Land Records ,

Gulbarga to pressurize the ASLR , Raichur to conduct

survey and modify the extent - and that accordingly ,

the area of Sy.No.192 came to be modified as 27 acres

30 guntas . The deponent has further stated that the

information obtained by one Mr.Raghavendra Albanur

under the RTI Act discloses that the Sale Deed dated

19-03-1916 is a concocted and fabricated document

and that no such Sale Deed was registered between the

parties mentioned therein in the office of the Sub-

Registrar , Gangavathi . The deponent has further

stated that pages No. 1 to 3 of Vol. I , Register No. III

relate to Sy. Nos. 314 and 598 of Chickajantakal

village and does not pertain to Sy. No. 239 of

Anegundi village . The deponent has further stated


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that in the Sale Deed produced by the Plaintiff, one

Rama Rao is shown as Sub-Registrar, Gangavathi , but

the fact is that on the said date , one Hussain Alikhan

was the Sub-Registrar as per the records. The

deponent has further stated that in the survey

proceedings, the Appellant had produced certified

copy of the Sale Deed obtained on 20-02-1973 issued

by the Sub-Registrar, Gangavathi and that in O.S. No.

74/2010, the Appellant had produced certified copy of

the Sale Deed obtained on 30-11-1989 supplied by

the Sub-Registrar, Gangavathi. The deponent has

further stated that the office of Sub-Registrar,

Gangavathi has furnished information under the RTI

Act that the said certified copies of the Sale Deed were

not issued by the office of the Sub-Registrar,

Gangavathi and that the said certified copies are

fabricated and concocted documents. The deponent

has further stated that in O.S.No.74/2010 the

Appellant has produced document as per Ex.P-16

alleged to be executed by Raja Tirumalaraya in the


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year 1368 Saka which is equivalent to 1447 AD and

that in the Kannada translation of the said document

as per Ex.P-16(a) , the year of Saka is tampered as

1768 in the place of 1368 and that there is mention

about existence of Brindavanas of Sri Vyasarajaru and

the other Pontiffs . The deponent has further stated

that as on that date , except the Brindavanas of

Padmanabha Teertharu, Kaveendraru and Vageesha

Teertharu , no other Brindavanas were in existence .

The deponent has further stated that Raja

Tirumalaraya of Anegundi Samsthana ruled during

1845 1865 and that this clearly reveals that the

documents produced by the Plaintiff are forged and

fabricated . The deponent has further stated that in

Ex.P-16 and Ex.P-16(a) , there is mention about

existence of Brindavanas in Sy. Nos. 112, 113 and 114

, when in fact there was no system of Survey Number

at that time . The deponent has further stated that the

documents produced by the Respondent go to show

that the Appellant has fraudulently created public


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documents and used them in the Administrative and

Judicial proceedings with intent to defeat the rights of

the third parties and to knock-off the rights of the

Respondent . Stating thus , the Respondent has prayed

for initiation of inquiry against the Pontiff and the

Power of Attorney Holder of the Plaintiff Mutt under

Section 340 of Cr.P.C.

c . The Appellant has filed Statement of

Objections to the Application by para-wise denying

each and every allegation made in the Application by

the Respondent .

29. I have heard the arguments of the learned

Counsel for the Appellant and the learned Counsel for

the Respondent at length on the merits of the case as

well as on the Applications filed by the parties in this

Appeal . Besides , the learned Counsel for theRespondent has submitted written arguments . I have

gone through the written arguments . I have perused


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the records of the case , including the records of the

trial Court .

30. The following Points arise for my consideration

:

1. Whether the Plaintiff proves its

possession of the Suit property as on

the date of the Suit ?2. Whether the Plaintiff proves

interference by the Defendant with its

possession of the Suit property ?

3. Whether framing of an additional

Issue regarding res-judicata as prayed

for by the Appellant is necessary ?

4. Whether framing of an additionalIssue regarding the existence of

Navavrindavanas within or outside

the area of 14 acres 7 guntas land in

Sy. No. 192 as prayed by the

Respondent is necessary ?

5. Whether the Appellant proves that in

spite of exercise of due diligence , the

documents sought to be produced inthis Appeal as additional evidence

could not be produced before the trial

Court ?


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6. Whether the Respondent proves that

in spite of exercise of due diligence ,

the documents sought to be produced

in this Appeal as additional evidence

could not be produced before the trial

Court ?

7. Whether the Respondent has made out

a case for ordering for fresh survey of

Sy. No. 192 of Anegundi village ?

8. Whether the Respondent proves that itis expedient in the interests of Justice

that an inquiry should be made against

the Pontiff and the Power of Attorney

Holder of the Appellant Mutt under

Section 340 of the Code of Criminal

Procedure ?

9. Whether the Judgment and Decree ofthe trial Court require interference in

this Appeal ?

10. What Decree or Order ?

31. My Answer to the above Points is as under :

Point No. 1 : In the Affirmative .

Point No. 2: In the Affirmative .

Point No. 3: In the Negative .




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Point No. 9: In the Affirmative .

Point No. 10 : As per the Final Order,

for the following:

REASONS

32. Points No. 1 and 3 to 7 : For the sake of

convenience and to avoid repetition , these Points are

taken together for discussion.

33. The learned Counsel for the Appellant,

narrating the Pleadings of the parties and the oral and

documentary evidence placed on record before the

trial Court , argued that in spite of adducing cogent

and convincing evidence by the Plaintiff to prove its

possession over the Suit property and interference by

the Defendant , the trial Court has dismissed the Suit

of the Plaintiff by considering only few documents

produced by the Defendant and without properly


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appreciating the scope of the Suit , the documents

produced by the Plaintiff and the oral evidence

adduced by it . The learned Counsel further argued

that the Judgment and Decree passed by the Court of

Munsiff, Gangavathi in O.S. No. 65/1/1959-60 and the

Judgment of the Civil Court, Raichur in O.S. No.

45/1968 operate as res judicata against the

Defendants and that therefore an additional Issue may

be framed in this regard. The learned Counsel further

argued that the documents now sought to be produced

by the Appellate in this Appeal would help the Court

to properly adjudicate the questions involved in the

Suit .

34. Per contra, the learned Counsel for the

Respondents, while supporting the Judgment of the

trial Court, argued that the very Suit of the Plaintiff is

not maintainable without seeking the relief of

Declaration of title and that the trial Court has rightly

dismissed the Suit of the Plaintiff. The learned

Counsel further argued that no Vrindavanas as alleged


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by the Plaintiff are situated in the Suit property and

that the question whether or not Vrindavanas are

situated within the extent of 14 acres 7 guntas is a

crucial question to be answered in this Suit and that

therefore an additional Issue has to be framed in this

regard. The learned Counsel further argued that the

documents now sought to be produced by the

Respondent in this Appeal through the three

Applications filed by it would go to show that the

survey proceedings and survey report showing the

extent of the Suit land as 27 acres 30 guntas , are out

come of fraud played by the Plaintiff and that to

adjudicate on the said aspects, the Respondent may be

permitted to produce the said documents as additional

evidence. The learned Counsel further argued that the

Sale Deed as per Ex.P-3 is a fabricated and concocted

document and that no such Sale Deed was registered

on the relevant date in the Office of the Sub-Registrar,

Gangavathi and that the documents now produced by

the Respondent in this Appeal would demonstrate the


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same. The learned Counsel further argued that the

Decrees obtained by the Plaintiff in O.S. No.

65/1/1959-60 and in R.A. No. 45/1968 are the out

come of fraud played by the Plaintiff and that

therefore the said Judgments are not binding on the

Defendant and they do not operate as res judicata

against the Defendant. The learned Counsel further

argued that the earlier Suit filed by the Plaintiff in the

year 1959-60 was only in respect of an extent of 14

acres 7 guntas land whereas the present Suit is filed in

respect of 27 acres 30 guntas and that therefore

without seeking the relief of declaration , the Suit of

the Plaintiff is not maintainable. The learned Counsel

further argued that the Pontiff and the Power of

Attorney Holder of the Plaintiff Mutt are guilt of

committing fraud, fabrication of documents and

producing such documents before the Courts and other

Authorities and that therefore they may be prosecuted

under Section 340 of Cr.P.C. Relying on the decisions

reported in AIR 1994 SC 893 ( S. C. Changalaraya


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Naidu, by L.Rs. Vs. Jagannath, by L.Rs. and others )

and (2012) 1 SCC 476 ( Union of India Vs. Ramesh

Gandhi ), the learned Counsel argued that the

Judgment and Decree obtained by a party to the Suit

by playing fraud on the Court is a nullity and non-est

in the eyes of law and that such Judgments would not

operate as res judicata against the opposite party.

The learned Counsel has relied on the decision

reported in AIR-2013 SC 523 ( Bhaskar Laxman

Jadhav Vs. Karamveer Kakasaheb Wagh Education

Society and others ) to argue that the Court is bound

to protect itself from unscrupulous litigants who do

not have any respect for truth and who make mis

statements and who suppress material facts.

Description of the Suit property

35. It is contended by the Defendant that the

Plaintiff has not properly described the Suit property

and that the description of the Suit property made by


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the Plaintiff does not fulfill the requirements of Order

7 Rule 3 of CPC. In the Plaint, the Plaintiff has

described the Suit property as under :

All the land measuring 100 acres

bearing old Sy. No. 239 and New Sy.

No. 192 of Anegundi village,

Gangavathi Taluka, Raichur District

bounded on the East, West, South and

North by Tungabhadra river, popularly

known as Nava Vrindavanagaddi. The

extent of the land at present visible

over the matter is 27 acres 30 guntas as

per the survey and confirmed by the

High Court of Karnataka at Bangalore.

36. In the Sale Deed as per Ex.P-3, the property

sold under the Sale Deed are shown to be bounded on

all the four sides by Tungabhadra river. There is no

dispute that the Navavrindavana Gaddi is an island

surrounded by Tungabhadra River. The Plaintiff hasdescribed the Suit property with its Survey Number

and boundaries. The description of the Suit property

made by the Plaintiff, in the opinion of the Court,


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fulfills the requirement of Order 7 Rule 3 of CPC.

Hence I am of the opinion that the said contention of

the Defendant cannot be accepted.

Possession of the Suit property, question oftitle and maintainability of Suit for Perpetual

Injunction :

37. It is the specific case of the Plaintiff that it

has purchased the Suit property from one Peshkar

Krishna Rao and is in possession of the same. The

same is denied by the Defendant.

38. The learned Counsel for the Appellant

argued that inspite of the Plaintiff producing the

original Sale Deed and the Judgments and Decrees in

the earlier proceedings between the parties and

documents showing its possession of the Suit property,

the trial Court has wrongly dismissed the Suit by

holding that a bare Suit for Perpetual Injunction is not

maintainable. Per contra , the learned Counsel for the

Respondent argued that the Suit of the Plaintiff


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without seeking the relief of Declaration of title is not

maintainable. The learned Counsel further argued that

the relief of declaration granted by the Court in O.S.

No. 65/1/1959-60 was only in respect of 14 acres 7

guntas land whereas in the present Suit, the Plaintiff is

alleging to be in possession of 27 acres 30 guntas land

and that therefore the Plaintiff ought to have sought

for the relief of declaration of its title . The learned

Counsel further argued that the documents produced

by the Respondent in this Appeal go to show that no

such Sale Deed was registered on the relevant date in

the Office of Sub-Registrar , Gangavathi . This aspect

will be discussed in later part of the Judgment .

39. The learned Counsel for the Respondent has

relied on the decision of the Honble High Court of

Karnataka reported in AIR 2007 KAR 40 ( Smt.

Nirmala Vs. Naveen Chhaggar and another) . In the

said case, where the documents revealed that the

Defendant therein was in possession of the Suit


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property, the Honble High Court of Karnataka , in the

facts and circumstances of the said case , has held the

Suit of the Plaintiff therein to be not maintainable. The

Appellant has relied on the decisions reported in AIR

1989 SC 1809 ( Corporation of the City of Bangalore

Vs M. Papaiah and another), ILR 2006 KAR 1049 (

SC) ( Rame Gowda , by L.Rs. Vs. M. Varadappa

Naidu , by L.Rs. and another ) , AIR 1936 Madras

200 ( A.L.V.R. Ct. Veerappa Chettiar Vs.

Arunachalam Chetti and others ), AIR 1936 Madras

936 ( Muthayyan Swaminatha Sastrial and others Vs.

S. Narayanaswami Sastrial and others ) and AIR 1971

Calcutta 1 ( Biswanath Bandapadhyay Vs. Purnamony

Dassi and another) to argue that a Suit for mere

Perpetual Injunction is maintainable.

40. Both the sides have relied on the decision of

the Honble Supreme Court of India reported in AIR

2008 SC 2033 [ ( 2008 ) 4 SCC 594 ] ( Anathula

Sudhakar Vs. P.Buchi Reddy , by LRs. and Others ) .


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It is profitable to excerpt the observations made by the

Honble Supreme Court at Paragraphs No.13 to 15 [

SCC ] which read thus :

13. The general principles as to whena mere suit for permanent injunction will

lie , and when it is necessary to file a suitfor declaration and /or possession with

injunction as a consequential relief , arewell settled . We may refer to them briefly .

13.1 . Where a plaintiff in lawful orpeaceful possession of a property and such

possession is interfered or threatened bythe defendant, a suit for an injunction

simpliciter will lie. A person has a right to

protect his possession against any personwho does not prove a better title by seeking

a prohibitory injunction. But a person inwrongful possession is not entitled to an

injunction against the rightful owner.13.2 Whether the title of the plaintiff is

not disputed, but he is not in possession, his

remediy is to file a suit for possession andseek in addition, if necessary, in injunction.A person out of possession, cannot seek the

relief of injunction simpliciter, withoutclaiming the relief of possession.


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13.3. Whether the plaintiff is inpossession, but his title to the property is in

dispute, or under a cloud, or where thedefendant asserts title thereto and there is

also a threat of dispossession from thedefendant, the plaintiff will have to sue for

declaration of title and the consequentialrelief of injunction. Where the title of the

plaintiff is under a cloud or in dispute and

he is not in possession or not able toestablish possession , necessarily theplaintiff will have to file a suit for

declaration, possession and injunction.

14. We may, however, clarify that aprayer for declaration will be necessary

only if the denial of title by the defendant orchallenge to the plaintiffs title raises a

cloud on the title of the plaintiff to theproperty. A cloud is said to raise over a

persons title, when some apparent defect inhis title to a property, or when some prima

facie right of a third party over it, is madeout or shown. An action for declaration, is

the remedy to remove the cloud on the titleto the property. On the other hand, where

the plaintiff has clear title supported bydocuments, if a trespasser without any

claim to title or an interloper without any


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apparent title, merely denies the plaintiffstitle , it does not amount to raising a cloud

over the title of the plaintiff and it will notbe necessary for the plaintiff to sue for

declaration and a suit for injunction maybe sufficient. Where the plaintiff, believing

that the defendant is only a trespasser or awrongful claimant without title, files a mere

suit for injunction, and in such a suit, the

defendant discloses in his defence thedetails of the right or title claimed by him,which raise a serious dispute or cloud over

the plaintiffs title, then there is a need forthe plaintiff, to amend the plaint and

convert the suit into one for declaration.Alternatively, he may withdraw the suit for

bare injunction, with permission of thecourt to file a comprehensive suit for

declaration and injunction. He may file thesuit for declaration with consequential

relief, even after the suit for injunction isdismissed, where the suit raised only the

issue of possession and not any issue of title.

41. I have caref

Nava_vrundavan Gaddi Case Judgement 22 April 2015

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