V. KRISHNAMURTHY Vs. HANUMANTHA DEVARU TRUST

JUDGEMENT

(1.) THE present appeal is by the defendants. THE case of the plaintiff before the trial court was that it is a Trust registered under the Indian Trust Act, 1882, constituted for purposes of maintaining the deity and the temple of Shri Hanumantha Devaru and its properties and to serve the public at large and the devotees offering worship at the temple, situated at Chinnayanapalya, Bangalore. THE Trustees are said to be family members claiming under their ancestor, Chinnappa. It is their claim that Chinnappa and late Munichinnappa alias Motappa had constructed the temple of Shri Hanumanta Devaru at their own cost and had endowed land measuring about 8 guntas in Survey No.17 of Chinnayanapalya for the benefit of the deity and after their death, their family members including the Trustees, were said to be managing the affairs of the temple over the decades and they were ensuring daily poojas and special jatras and had appointed archaks and other employees from time to time. THE plaintiff claimed that the temple was essentially a private temple, where there is no bar for the public at large to participate in the poojas and offer worship at the temple. In this regard, the defendants were also permitted to participate in the poojas and jatras at the temple. THE plaintiff claimed that over the decades, there was no interference by any person, as it was common knowledge that the plaintiff and their ancestors were the owners and in management of the temple. However, a need was felt to constitute a Trust and therefore, the plaintiff had come into being in order to better safeguard the temple property and to protect the same from miscreants and land grabbers. Consequently, the khata of the temple property stands in the name of the Trust and has been assessed to taxes by the local authority. (THE property is identified as No.13, III Main Road, Chinnayanapalya, Bangalore ­ 560 030, measuring east to west on the northern side 97 feet, on the southern side 98 feet and north to south 82.6 feet.) It was the plaintiff's complaint that the defendants, who cannot claim any right over the property, except to offer poojas and to participate in the jatras held at the temple, had tried to interfere with the functioning of the plaintiff and its Trustees and it is alleged that the first defendant, who has formed the second defendant ­ Association is seeking to misrepresent to the general public at Chinnarayanapalya and its environs that the second defendant ­Association is managing the temple and its property and has been raising funds on that pretext. THE plaintiff declares that the second defendant and the plaintiff are not the same and have no connection with each other whatsoever and the second defendant has nothing to do with the management of the Hanumanta Devaru temple and its property. It is alleged that in the year 1998, the first defendant had tried to dispossess the plaintiff, while declaring that he is the manager of the properties of the temple, through the second defendant ­ Association. THE Trustees of the plaintiff had filed a suit against the first defendant for a permanent injunction restraining him from interfering with the temple and its management. An interim order of temporary injunction was granted. However, the same was vacated for technical reasons, as the suit was filed in the individual capacity of the Trustees. THE defendant, who had thereafter not persisted in his claim, over the temple, again sought to dispossess the plaintiff and had brought his supporters and threatened the Trustees that he would physically dispossess them from the property and keep them out of the property. It is in that background that a suit was filed for an injunction restraining the defendants or anyone, claiming under them, from dispossessing the plaintiff from the suit properties.

(2.) THE suit was contested and the plaint averments were denied. THE defendants claimed that the second defendant ­ Association was formed in the year 1966 by the residents of Chinnarayanapalya, with the object of maintaining Shri Hanumanta Devaru and Maramma Temples as well as Ashwatha Katte in Chinnarayanapalya. It was denied that the Association was formed by the first defendant, but it was the first defendant's father Munichinnappa, who had formed the Association. THE first defendant, however, was the Secretary of the second defendant ­ Association. It was denied that any funds of the Association had been misappropriated and it is stated that one of the Trustees of the plaintiff is a member and an office-bearer of the Association. It was asserted that there was no question of interference by the defendants with the plaintiff as the defendants were very much in possession and management of the temple, though it was true that a civil suit in O.S.No.7762/1998 was filed by the plaintiff, it was denied the order of temporary injunction granted was vacated for technical reasons. THEre was no order of injunction granted against the first defendant. THE order of temporary injunction granted was vacated after hearing the parties and on a prima facie finding by the court that the Trustees were not in possession and it was also held that the defendant was the Secretary of the Anjaneya Swamy Welfare Association and the Association was in active management of the temple and its properties. THE fact that the plaintiff had not chosen to produce a copy of that order was clearly a deliberate suppression of that finding of the court. It was vehemently denied that there was any interference preceding the suit by the defendants. It was further asserted that Hanumanta Devaru temple was an ancient temple, which had existed for almost 200 years and it was the residents of Chinnarayanapalya who had maintained the temple. When the need was felt for more orderly management of the temple, the second defendant - Association was formed under the Karnataka Societies Registration Act, 1960 and it was a duly registered body. Its accounts were regularly audited. THE temple and its appurtenant land stands in the name of the deity and the plaintiff and its Trustees were actively attempting to take over the ownership of the temple since 10 years preceding the suit. It was alleged that in the year 1989, the Trustees had colluded with the archaks, who were then employed at the temple and made an attempt to take over the management. THE said archak had issued a legal notice to the Association, which was only a futile attempt to discredit the Association. THE archak had left the temple voluntarily. THE Trustees had therefore made yet another attempt in the year 1994-95 by creating the so-called trust. Such attempts were continued and in the year 1997 again, an attempt was made to interfere with the management by the defendant ­ Association, which lead to the Association issuing a public notice declaring that it was in actual management of the temple and its properties and that the plaintiff was making an attempt to take over the management. It is that which drove the plaintiff to use power and influence on the Corporation to have the khata effected in the name of the Trust, though all along, it stood in the name of the deity and the defendants were compelled to make a complaint to the Commissioner, Bruhat Bangalore Mahanagara Palike (Hereinafter referred to as ' the BBMP', for brevity). THE complaint was supported by the residents of Chinnarayanapalya declaring that the Association was, in fact, managing the temple. Ironically, the son of one of the Trustees one M.Narayana Murthy had joined the defendants in filing an affidavit before the Commissioner, BBMP, to declare that it was the second defendant ­ Association, which was in management of the temple. THEre were tenants in occupation of portions of the temple property, who had also sworn to affidavits in support of the defendant ­ Association . THE archaks, who performed pooja at the temple, had also sworn to such affidavits. THE defendant has produced bills towards the purchase of vessels and pooja articles from time to time. THE defendant had produced bills towards supply of electricity to the premises. THE Association had renovated the temple apart from constructing Maramma temple, which was about 100 metres away from the Hanumanta Devaru temple. THE Association was also instrumental in performing several functions at these temples and had sought to produce material in support thereof. It was denied that the temple was private property and the defendants asserted that the property belonged to the deity and the deity is worshipped by the residents of Chinnarayanapalya and was, in that sense, public property over which the plaintiff could not assert any private right and therefore, sought dismissal of the suit.

(3.) WHILE the learned Counsel for the respondents would submit that insofar as the legal bar to the maintainability of the suit, in that, all the trustees had not joined in filing the suit and therefore, was not maintainable was never a contention raised before the court below. There was no issue framed in this regard. However, by way of abundant caution, he would submit that since such a contention is raised in the present appeal, to avoid any controversy, an application in I.A.I/2012 is filed, seeking to implead all the Trustees, except three, two of whom, are dead and one is said to be aged and terminally ill and unable to respond to their request to join them, who is sought to be arraigned as the proposed defendant and they have filed a joint affidavit in support of the application. The Counsel would submit that any such lapse cannot be considered as fatal to the suit. It is only as a matter of form and though a necessary formality, it can certainly be permitted to be rectified even at this stage, as there is no conflict of interest or dispute as amongst the Trustees of their intention to file the suit, seeking to protect the temple property. Insofar as the facts of the case are concerned, the learned counsel would point out that even according to the defendants, the temple is an ancient temple. The contention that it belongs to the people of Chinnayanapalya or that it is public property is not evidenced by any material on record. On the other hand, there was material available to denote that the land had been endowed by the ancestors of the plaintiffs-trustees. It is in that context, the court below has addressed the aspect of which of the parties would be entitled to claim management and administration of the suit properties.