MAGAJI DHONDUSA CHARITIES PRIVATE RELIGIOUS AND CHARITABLE TRUST BY ITS MANAGING TRUSTEES Vs. D. RAMAIAH

JUDGEMENT

(1.) THIS is the Plaintiff's appeal directed against the Order passed on I.A. No. I, in O.S. No. 7988 of 2000 by the v. Additional City Civil Judge, Bangalore City, dated 1.8.2001 partly allowing I.A. No. I filed under Order 39, Rules 1 and 2 Code of Civil Procedure.

(2.) THE brief facts are as follows: The Plaintiff is a Religious and Charitable Trust rendering charitable services since 1886 that by a Deed of Settlement dated 23.11.1886 certain immovable properties situated at Gavipuram Guttahalli commonly known as Sri Gavi Gangadareshwara Swamy Temple in Gavipuram Guttahalli settled in favour of the Plaintiff, consisting of 20 ankanas including vacant land and angala backyard, a well etc. Subsequently, by another document dated 31.8.1919 the persons by name Sri Nanjundappa and Sri Banappa gifted certain properties as "Dharma Shasana" situated at Bangalore City, Gavipuram Guttahalli near Sri Gavi Gangadareshwara Swamy Temple, measuring East to West: 22 ft., North to South: 45 ft. and bounded on the East: by Plaintiff's choultry, West: by road, North: by vacant land and South: by "Bhahuthwada Angala". Subsequently, by an Agreement dated 21.7.1965 between the Plaintiff and Sri Banappa certain conditions were stipulated to put up a gate for the use of the donee and donor. The suit schedule property demarcated in the letters "A, B, C, D", measures approximately East to West: 60 ft. and North to South: 50 ft. the southern boundary of the suit schedule property is shown in the letters "A, B" to the plaint sketch, described as "Bhahuthwada Angala" and the said "Bhahuthwada Angala" are in enjoyment in common by the Plaintiff and the Defendant having a domain over the property by Plaintiff. One Sri Nagaraj filed O.S. No. 2388 of 1973 against the Magaji Dhondusa Charities for the relief of perpetual injunction. The said suit was in respect of "Bhahuthwada Angala". After the trial, it was dismissed on 16.12.1975. The said Sri Nagaraj preferred Regular Appeal No. 46 of 1976, which also came to be dismissed. The Defendant in order to develop the property entered into an understanding with the developers and illegally made an attempt to remove and dismantle the existing compound wall and to remove the stone slabs which were laid permanently on the suit schedule property called "Bhahuthwada Angala". The Defendant has also made an attempt to put up a permanent construction by blocking the entire access of ingress and egress towards "Bhahuthwada Angala", which leads to Magaji Dhondusa Charities. In the meanwhile, the Defendant also filed O.S. No. 175 of 2000 for perpetual injunction in which, the Defendant has made a false claim. The Plaintiff ha a right over "Bhahuthwada Angala". The Defendant and his supporters interfered with the suit schedule property on 20.11.2000 by doing Bhoomi Pooja with an intention to put up multistoried apartments. On the above pleadings, filed the suit for permanent injunction to restrain the Defendant, their agents not to interfere or put up any construction over the suit schedule property and for such other consequential relief along with I.A. No. I under Order 39, Rules 1 and 2 Code of Civil Procedure praying for the relief of temporary injunction. The Defendant filed a detailed written statement pleading that in fact Bhahuthwada Angala recited therein is the boundary of the property covered by the deed "Bhahuthwa" of "Angala" being between the executants thereof i.e., Sri Banappa and Sri Nanjundappa who were enjoying the same in common along with the property situate to the South of the purported Plaintiff's Choultry. The ownership of the "Bhahuthwada Angala" had vest only in Sri Banappa and Sri Nanjundappa and not in Plaintiff. However, if it were to be otherwise, there was no need to execute document purportedly transferring northern area of "Bhahuthwada Angala". The very term of the document relied upon by the Plaintiff deciphers that the permission granted on the transferred property itself belonged to the transferors and as such, the purported to transferees could not have before such professed transfer, could exercise any rights over which. When that was so, it was impossible to conceive that the property beyond the transferred property ever suffered any rights of the Plaintiff. In respect of the property in dispute there was never and even now any common right granted or otherwise recognised in favour of the Plaintiff by late Sri Banappa and Sri Nanjundappa. The property being a part of larger extent and the Defendant's property has been in the exclusive ownership and possession of the Defendant. In fact, a big gate and a small gate is opened and used by this Defendant exclusively for decades in the schedule property. Besides that space opens to the residence and private temple of the Defendant. In the middle there were two stone long pillars (Garuda Gambas) of the temple. One of which has fallen down and the other one stands. A separate gate had been installed to the north of the area covered by the deed of 1919. As such there was nothing in commonness with reference to the suit schedule property. The ingress and egress through plaint schedule property was exclusively to the Defendant, whereas the Plaintiff has no right in the said area. The word "Bhahuthwada Angala" termed by the grantors was always interested and expressed called as grantees common property not that of one, which jointly belongs to grantors and grantees. The Plaintiff has not acquired any right in respect of "Bhahuthwada Angala". The issue in O.S. No. 2338 of 1973 is wholly irrelevant as the same was in respect of laying of water pipes. In fact, it is within the power of this Defendant to develop the properties situated on the southern side, which are his absolute properties. The Defendant intends to put up structure on vacant land by preserving the private temple. "Bhahuthwada Angala" never existed in "Bhahuthwa" between the Plaintiff and the Defendant. But, it was only between Sri Banappa and Sri Nanjundappa who were joint owners. Their "Bhahuthwa" was not shared with the Plaintiff. In fact, the Defendant has been physically prevented by the police at the behest of the Plaintiff from proceeding further and this Defendant has incurred heavy commitment and he is facing lot of problems on account of the same and denied all other averments which are inconsistent in the plaint and prayed to dismiss the suit. Learned City Civil Judge after hearing both the learned Counsel, considering the pleadings, documents and the admissions found therein, allowed I.A. No. I in part, restraining the Defendant from interfering with the suit property called as "Bhahuthwada Angala" to the extent of 5 ft. with passage abutting to the Plaintiff's property towards the southern side pending disposal of the suit.

(3.) LEARNED Senior Counsel for the Appellant Sri Shekar Shetty contended that by a document dated 1.9.1919 the owners viz. Sri Nanjundappa and Sri Bannappa gifted a property measuring East to West: by 22 ft., North to South: by 45 ft. and bounded by the East: Plaintiff's Choultry, West: road, North: vacant land and South: "Bhahuthwada Angala". Learned Counsel contended that the southern boundary described and shown in the sketch as "A, B" is "Bhahuthwada Angala" which means, is meant for common use. Therefore, the Defendant cannot put up construction on the entire area of "Bhahuthwada Angala". Nextly contended that by an agreement dated 21.7.1965 between the Plaintiff and Sri Banappa it is clearly shown that the southern boundary is "Bhahuthwada Angala" which means, for the better use of the Plaintiff and the Defendant. According to the recital in the document in respect of Item No. 1, it is a common space meant for the use of the Plaintiff and the Defendant. Further contended that even in the Item No. 2 in the same deed, the northern boundary is shown as "Bhahuthwada Angala". It makes clear that the Plaintiff has an access to "Bhahuthwada Angala". Therefore, the Defendant cannot put up any construction. Further contended when there is a triable issue the Plaintiff is entitled for the relief of permanent injunction, wherein the learned City Civil Judge erred in coming to the conclusion that the Plaintiff is only entitled to the make use of the "Bhahuthwada Angala" to the extent of 5 ft. on the southern side of their property. If the Defendant were to be permitted to put up construction, virtually the suit of the Plaintiff becomes infructuous. Therefore, contended that there is a prima -facie case in favour of the Plaintiff. The balance of convenience is also in favour of the Plaintiff and in case if an Order of injunction is not granted the Plaintiff will suffer from irreparable loss which cannot be compensated in terms of money and submitted that the documents dated 1.9.1919 and 21.7.1965 are clear and the same is admitted by the parties. When "Bhahuthwada Angala" is meant for common use, the intention of the parties is understood. Therefore, submits prima -facie case is made out. Further contended that the Respondent also filed O.S. No. 1758 of 2000 and sought for temporary injunction, which came to be rejected. However submitted that the Plaintiff is not claiming any exclusive right or relief over "Bhahuthwada Angala". But the space has to be maintained and protected as "Bhahuthwada Angala" for the common use of the Plaintiff and the Defendant. Nextly contended that the learned City Civil Judge erred in relying on the findings in O.S. No. 7988 of 2000 and Regular Appeal No. 46 of 1976. The Plaintiff has never confined only to area of 5 ft. in width at any time towards southern side property described as "Bhahuthwada Angala". It is also contended that the Defendant has not obtained any plan under the Corporation Act. Even otherwise if any plan is granted, that remains only for a period of two years. In view of the fact that Sri Nanjundappa and Sri Banappa the brothers have executed a document, status -quo to be maintained. Accordingly, prayed to allow the appeal restraining the Respondent from putting up any construction over the area shown in the letters "A, B, C, D" in the suit sketch.