LAWS(KAR)-1990-9-4

LAKSHMINARASIMHASWAMY CHARITIES Vs. RAGHAVENDRA ENTERPRISES

Decided On September 14, 1990
LAKSHMINARASIMHASWAMY CHARITIES Appellant
V/S
RAGHAVENDRA ENTERPRISES Respondents

JUDGEMENT

(1.) sri lakshminarasimhaswamy charities, the plaintiff in the suit, o.s.no. 4613/1980, on the file of the court of the city civil judge at Bangalore city ("the trial court"), has brought this appeal feeling aggrieved by a decree of dismissal of that suit against defendants 1 to 7 who are respondents 1 to 7 here respectively.

(2.) undisputed material facts leading up to this appeal, briefly stated, are on the southern side of the city market square of Bangalore city, there was 5 1/2 acres of land together with some buildings thereon belonging to jyothinagar vysya yajaman janopakari doddanna setty, where a free hostel for jyothinagar community students and a free public school were run as Sri lakshminarasimha institution. That land with the hostel and the school building along with several other properties was endowed by the owner- the said yajaman doddanna setty under a trust deed dated 23rd june, 1920 for the charitable purpose of advancement of education among jyothinagar vysya students and other students belonging to general public with the name Sri lakshminarasimhaswamy charities ("the sln charities"). The trustees named in that trust deed, who were given the authority to manage the charities along with the author of the trust Sri yajaman doddanna setty had to relinquish the right of trusteeship in the event of neglect or default on their part in fulfilling the obligations under the trust and re-transfer the right of management of the institution to the author of the trust or to any other persons or persons who may be nominated in that behalf by will or by other instrument duly executed, or in the absence of such nominee to the then Mysore government. A situation contemplated in the trust deed that the Mysore government should take over the management of the sln charities having arisen, the then Mysore government took over the control and management of the sln charities inasmuch as it was a charitable institution under the Mysore religious and charitable institutions Act, 1927. Eversince, the Mysore government started to control and manage the sln charities through the managing committees appointed by it from time to time. Therefore, rules for the management of the sln charities being framed by the then Mysore government in the year 1943 and amended from time to time, the same have formed the basis for control and management of the sln charities. It is the said rules which enabled the successor Karnataka government to appoint a managing committee in the year 1973 with one Sri n. Puttarangaswamy as its chairman. On 13-2-1974, that committee, by its resolution, recommended to the government to accept the offer of the first defendant-partnership firm to obtain a portion of the land belonging to the sln charities on lease for construction of a cinema theatre, for a period of 30 years with an option for renewal of lease by the lessees for a further period of 10 years. The government having accepted the said recommendation, the sln charities, under the management of the state of Karnataka represented by the chairman of the committee of management, entered into a lease deed on 26-4-1974 in favour of the first defendant-partnership firm and the partners of that firm, defendants 3,4,6 and 7, as evidenced by the registered lease deed (exhibit p-1), on the lessees agreeing to pay the monthly rent of Rs. 2,100/- in the first two years- the tune likely to be occupied by them for construction of the theatre, and the monthly rent of rs.16,500/- thereafter for 28 years and the monthly rent of Rs. 17,500/- for the optional period of 10 years. The lessee-firm since constructed a mini cinema theatre as well in the leased vacant land in contravention of the approved plan, the monthly rent payable during the 28 years of the regular period came to be enhanced to Rs. 18,500/- and the monthly rent payable during the optional period of 10 years came to be enhanced to Rs. 20,000/-, such refutation of rent being agreed upon between the parties and approved by the government, by its order dated 24-7-1976. Defendant-2 having subsequently joined as a partner of defendant-1 firm, became its managing partner. After the cinema theatre was constructed by the lessees-defendants on the leased land, the khata number given to the leased vacant land by the municipal corporation was No. 290 made out in the name of the sln charities, while the khata number given to the cinema theatre constructed on the land was No. 291 made out in the name of the first defendant-firm. Thereafter, a dispute arose between the lessor and the lessees as to which of them had to pay the municipal tax on the vacant land leased to the lessees and where a cinema theatre had come to be constructed. However, the city corporation, as per its notice dated 19-3-1979 (exhibit p-2) called upon the sln charities, in whose name the khata of the vacant land stood, to pay the vacant land tax amounting to rs.1,25,566-20 and rs.1,240/- as penalty, by furnishing the following details: year <FRM>JUDGEMENT_115_KANTLJ3_1990Html1.htm</FRM> that amount being paid by the sln charities to the corporation of the city of Bangalore, the sln charities, as plaintiff, filed a suit in the trial court to direct the lessees- defendants in the suit to re-imburse that amount to the plaintiff alleging that the liability to pay vacant land tax under clause 8 of the lease deed was that of the defendants. In that suit, the plaintiff claimed as well the interest at 18% per annum on the said amount from the date of payment to the date of filing of the suit and rs.200/- as lawyer's notice charges, apart from costs, current and future interests. The defendants, by filing a written statement in that suit and getting that written statement amended subsequently,resislcd the plaintiffs claim made in the suit pleading, inter alia, that they were not liable to pay vacant land tax under clause 8 of the lease deed dated 26-4-1974 nor the interest claimed thereon or the lawyer's notice charges; that the suit was unmaintainable for non joinder of all the members of the managing committee of the sln charities as plaintiffs; after the retirement of the chairman of the committee, the chairman of the succeeding committee not being brought on record to represent the plaintiff. The trial court, which framed the necessary issues on the basis of the pleadings in the suit, recorded the evidence adduced by parties on both sides, heard arguments of their learned counsel and rendered a judgment and decree thereon dismissing the suit finding, inter alia, that the dcfcndanls-1 lessees were not liable to pay to the corporation the vacant land tax on the land leased by the plaintiff to the defendants, under clause 8 of the lease deed (exhibit p-1) and that though the suit was maintainable for non-arraying of the members of the managing committee of the sln charities, it was not maintainable as, after the expiry of the terms of the office of Sri puttarangaswamy, chairman of the managing committee of the sln charities, the chairman of the subsequent managing committee was not brought on record in the place of Sri puttarangaswamy. It is that judgment and decree which is appealed" against by the sln charities, the plaintiff-a charitable institution under the management of the government of Karnataka through its chairman- Sri d.p. sharma, in this appeal.

(3.) while it was argued before us on behalf of the appellant-plaintiff that the findings of the trial court recorded against the plaintiff were unsustainable in law and the suit of the plaintiff had to be decreed as prayed for, it was argued on behalf of the respondent-defendants that the findings recorded by the trial court were sustainable arid the judgment and decree dismissing the suit were required to be upheld.