SHANKARAPPA Vs. MALLAYYA

JUDGEMENT

(1.) the appellants and respondents-3 to 6 were the defendants in a suit filed by respondent nos.1 and 2 in the court of principal munsiff, gulbarga, being o.s. No. 292/1971. That suit was partly decreed by the learned munsiff. The plaintiffs preferred an appeal, which came to be disposed of by the addl. District judge, gul barga, by his judgment and decree dated 31st july, 1979 in r.a. No. 46/1979. The learned addl. District judge allowed the appeal but dismissed the cross-objections filed by some of the defendants. Some of the defendants have therefore preferred this second appeal.

(2.) the facts of this case so far as they are necessary for the disposal of this appeal may be noticed : the plaintiffs claimed to be the owners of a math popularly known as 'shri mallikarjun math' situate at asafgunj in the district of gulbarga. They claimed that the land and other buildings where the math is situate was granted by the then government of hyderabad to the father of the plaintiffs. The father of the plaintiffs being a religious minded person installed a deity known as 'mallikarjun by the side of the samadhi of his guru for the purpose of his own puja and worship. He used to arrange bhajan, keertan, procession of palanquin of the deity on annual festival days like maha shivaratri day and shravan mondays. On such occasions, mem bers of the lingayat community of asafgunj attended those functions. In due course of time, the place came to be known as Shri Mallikarjun math. After the death of their father, the plaintiffs continued the performance of pooja, keertan, bhajan, etc., and allowed the members of the lingayat community to take part in the functions as before. However, some members of the community with ulterior designs and taking advantage of concession given by the plaintiffs to the members of their community, began to interfere in the regular pooja and worship of the deity. In these circumstan ces, the plaintiffs prevented them from going to the math and interfering with the management of the math, defendant No. 9 and some other persons filed a repre sentative suit being o.s. 37/1/1951-52 in the court of the subordinate judge, gulbar ga against the plaintiffs and three others for a declaration that the said math belonged to the lingayat community of asafgunj area and that they were entitled to have ac cess to the deity and perform pooja, bhajan, keertan, etc., and for a permanent injunc tion restraining the plaintiffs from interfering in the exercise of their said rights. It was claimed by them in that suit that the math was an old math of lingayat com munity and had been constructed with the help of public contributions and was being looked after and managed with the funds collected by the community. It was alleged in that suit that the plaintiffs were only entrusted with the work of pooja path etc., and had no personal interest or any right, title or interest in the properties of the said math. That suit was contested, and by judgment and decree dated 6-11-1951 the suit was partly decreed inasmuch as the plaintiffs were found entitled to have access to the said math for the purpose of pooja, bhajan, procession, etc., conducted by the plaintiffs on annual festival days. The court, however, held that the m;;i.h was the private property of the plaintiffs and to that extent the suit was not decreed. An ap peal preferred by the plaintiffs of that suit was dismissed by the district judge, gul barga, on /-1-1953 and a second appeal to the high court also came to be dismissed on 4-6-1959. The further case of the plaintiffs is that defendant nos. 1 to 15 have formed an association in the name of the plaintiffs' math naming it as 'shri mallikarjun math panch mandali', asafgunj, gulbarga. The association was founded on 4-/-1971 and its rules and regulations were also framed. The association was registered on 4-8-1971 in the office of the registrar of societies at Bangalore. Dcfendants-1 to 5 were the self-elected office bearers of the association. The plaintiffs alleged that the formation of the association in the name of the plaintiffs' math was itself illegal, in par ticular clauses 4(e) and 4(f) of the memorandum of association providing for construction and repair of the existing Shri Mallikarjun math and for arranging of daily performance of the pooja at the math and celebration of utsavas were clearly illegal. The defendants had no right, title or interest of any kind whatsoever to hold functions in the plaintiffs' math. The association has been formed only with the mala fide intention of making another attempt to lay claim over the plaintiffs' math and its properties. Since the formation of the association with such objects cast a cloud on the title of the plaintiffs, they were compelled to file the instant suit. The plaintiffs claimed a declaration that the formation of the association by the defendants in the name of the plaintiffs' math and the rules and regulations framed and their registration were illegal and unauthorised so far as they related to the plaintiffs' math and their right of daily worship, bhajan, keertan, etc., conducted by them on annual fes tival days. The plaintiffs prayed for an order of permanent injunction restraining the defendants, their association and or its subscribers and any other person claiming through them or the association from doing any acts referred to in para-4 (e) and (f) of the memorandum of association.

(3.) defendants-1 to 8, 10 to 12, 14 and 15 contested the suit. They contended that the math known as 'mallikarjun math' was a religious foundation pertaining to the lingayat community and it was not known as to who was its founder. The defendants and other followers of this math were arranging bhajan, keertan and procession of palanquin of the deity on maha shivaratri day and on each monday in the month of shravan. The math was not the property of any individual and the plaintiffs could not claim to be the owners of the math. According to the plaintiffs, the math and the buildings were expanded by reconstruction and renovation from time to time with the public funds. The status of the plaintiffs was analogous to that of mahants entrusted with day to day management of the math. The defendants further denied that the ear lier suit was a representative suit and contended that they were not bound by any ad verse decision passed in the former suit. In any event, the earlier suit was partly decreed, as a result of which, the plaintiffs were permanently restrained from inter fering with pooja, bhajan, keertan, etc., by the defendants in the said math. The locus standi of the plaintiffs to question the formation of the association was challenged. The defendants claimed right to form any association and even if it was found that the plaintiffs alone had the right to perform pooja, bhajan, keertan, etc., the formation of the association did not affect their rights.