BANASHANKARI TEMPLE Vs. VISHWANATH

JUDGEMENT

(1.) This is plaintiff's second appeal. The plaintiff is a temple. On its behalf OS no. 75/1 of 1971 on the file of the Munsiff, humnabad was filed against the defendants (respondents herein) claiming an injunction against them restraining them from interfering with its possession and enjoyment of the plaint house, of which it claims to be the owner in possession. The defendants resisted the suit. They denied both the ownership and possession of the plaintiff re. the house in question, and claimed that they were owners and in possession of the same. They also denied the right of the person, who had brought the suit on behalf of the plaintiff, to bring that suit. The trial Court framed the following five issues :"1. Whether the suit filed by Vithal rao Appa Rao is maintainable 2). Whether the plaintiff proves- his possession of the suit house on the date of suit 3). Does he further prove the alleged obstruction by the defendants 3. Is plaintiff entitled to reliefs sought after receiving the evidence placed by the parties that Court answered all the issues in favour of the plaintiff and granted a decree as sought for. In the appeal, preferred by the defendants, the Civil judge, Bidar, by his judgment dated 29-3 1975 in RA No. 54 of 1974, allowed the appeal and dismissed the suit and, therefore, the plaintiff has come up with this second appeal.

(2.) Though this is a suit for injunction, incidentally, the question of ownership also is required to be taken note of. In para 4 of their written statement, while trying to explain how the katha of this property might have been brought on record of the Village Panchayat in the name of the temple, this is what the defendants say, and that statement has some value in appreciating their evidence that they are in possession of the property which fact is the moot point in this suit for injunction. "as stated above the suit house belongs to the defendants and the defendants, who reside in Chitguppa proper always and they often used to go to village halikhad and visit the suit bouse occasionally. Therefore, having seen the absence of the defendants in the village halikhad, the plaintiff institution alleged worshipper. . . . has managed to get some record prepared with the collusion of the Panchayat behind the back of the defendants". Three things emanate from this statement viz. , (i) that the defendants do not reside in the village where the house in question is situated ; (ii) that they only visit the village, where the suit house is situated, on occasions ; and (iii) that they occasionally visit the suit house. These things will have to be borne in mind while examining the rival contentions concerning the question of possession.

(3.) The learned Munsiff has considered the evidence adduced by the parties re. the possession of the suit house at paras 14 and 15 of his judgment. The 1st defendant had asserted that the house was his ancestral property. The defendants wanted to show about their having paid assessment for the house. The Munsiff, after examining one or two tax receipts of recent years, came to the conclusion that they do not specifically show that the assessment had been paid by them in respect of this house. In this connection he also took note of the fact of their having one or two other houses in the village. Having examined carefully the evidence let in, he was of the view that the plaintiff- temple had established that it was in possession of the suit house.