GADIGI MARISWAMAPPA Vs. SIVAMURTHY

JUDGEMENT

(1.) THIS appeal by the plaintiff is directed against the judgment and decree passed by the Civil Judge, Bellary, in RA No 55/1980, dated 11-6-1991 confirming the judgment and decree passed by the Principal munsiff, Bellary in O S No 848 of 1966, dated 1-8-1980

(2.) THE essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows -The plaintiff filed the suit for declaration that the suit schedule property consisted of a private trust of which plaintiff and his heirs are the trustees and for possession of the suit properties from the Court the Schedule property comprises of the Mutt situated within the municipal area of Bellary Door No nil, Ward No VI, lands situated in bellary comprising of Sy Nos 473-B measuring 1 acre 40 cents, 759-A measuring 14 74 cents and lands situated in Siddapuram Village within the sub-registration of Mulakalmuru comprised in Sy Nos 429 measuring 1 acre 27 cents, 436/2 measuring 1 acre 21 cents, 437/1 measuring 2 acres 22 cents, 295/3 measuring 1 acre 35 cents It is averred in the plaint that about a century ago, the grandfather of the plaintiff Sri Shadaksharappa having a spiritual bent of mind started construction of the plaint schedule mentioned Mutt and by registered agreement executed by him on 4-10-1869 in favour of his brother's son mareppa, he made reference to this Mutt by stating that the construction of the Mutt begun by him at Bandimotu at Bellary must be completed by Mareppa and every year for one month there must be poor feeding and the Mutt started by him should be for Sadwiniyoga It is averred that in the partition between the plaintiff's father Mareppa and his uncle Pompanna in 1873 the above Mutt had been completed and in the registered partition deed between them on 24-3-1873, it has been stated as per the wish of their uncle Shadaksharappa the Mutt having been completed, every year during the month of Shravana persons coming from outside must be fed and Dakshinam also must be given and for this charitable purpose they made a provision in their partition deed to spend Rs. 200/- annually. Thus, the Mutt called Shadaksharappa mutt or the Bandi Motu Mutt was started, a private trust was created. The beneficiaries under the Trust being poor persons coming from outside and the then senior most member of the plaintiffs family being the trustee, plaintiffs father Mareppa also being of a highly religious bent of mind selected Sri Kotturswamy of Mannur who was then staying in the plaintiffs family as a Kriyamurthy to occupy the Mutt arranging for his residence there. After partition between Mareppa and his brother Pompanna, assignment of land was made and they prepared a list enumerating monthly expenditure to be incurred for charitable purposes and a provision of Rs. 25/- was made for the Swamiji and it was also agreed that necessary utensils must be purchased for the Mutt. One Chenna basayya, Kotturswamy's younger brother, Mareyya's son, who used to be with the Swamiji as his Puja Mari was appointed as agent by the plaintiffs father to look after the Mutt affairs. As such, a private trust was created for the spiritual benefit of the family members of the plaintiff. The samadhis of important persons of the plaintiffs family i. e. Shadaksharappa and Mareppa and Veerabhadrappa are situated in the mutt and of others around the mutt and since the date of construction of the mutt up till now dead persons of the plaintiffs family are buried there only. By about 1879 the father of the plaintiff and his uncle had out of their joint family lands reserved the plaint A schedule mentioned lands for the upkeep and maintenance of the mutt and in lieu of the annual payment of Rs. 200/ -. It is further averred that with the permission of the plaintiffs father Mareppa and the plaintiff, the mutt premises have been used for many religious and spiritual functions, marriages of poor jangama were performed there the Ayyacharchar of jangama vatus took place there and once Chara Pattadaka Sammelana was held there and prominent Swamijis and Jagadgurus used to stay in the mutt during the time of their visit to Bellary. Many a time Purana pravachanas have been held and the mutt was a centre of such innumerable religious, cultural and dharmik activities of the Lingayat community. It is further averred that Kotturswamy died and has been cremated inside the Mutt. After the death of the agent Chenna Basayya his son Gajadandayya, husband of defendant 5, was appointed as agent for the mutt. He not only looked after the mutt affairs, but also acted as clerk under the plaintiffs brother Veerabhadrappa looking after the family lands and shops at Madras and Beerur. The plaintiffs father celebrated the first marriage of Gajadandayya. When Gajadandayya died his brother Hanumurthy who was living with him in the mutt was appointed to act as agent by plaintiffs elder brother Muddappa and by about 1950 he also died. For some months the plaintiff locked the mutt as there was no proper person to be appointed agent to look after the mutt Then the 2nd defendant came and requested the plaintiff to appoint him as agent for the mutt and he was duly appointed in about 1951 After about six months from the date of appointment of the 2nd defendant his cousin brother Gajadandayy-3rd defendant came to the mutt with his mother Gangamma and sister Basamma and joined the 2nd defendant Basamma till her marriage lived in the plaintiffs family the 1st defendant-another cousin brother of the 2nd defendant has come about 5 or 6 years back and joined the 2nd defendant Defendants 5 and 6 have remained at Manur and have not come to the mutt Thus it is seen that the defendants taking advantage of the fact of one of them being appointed as agent have gradually come and remained in the mutt It was the duty of the agent to maintain the mutt by the income of the plaint A schedule mentioned lands after paying taxes and land revenue and render proper accounts to the trustee The defendants are only agents under the trustee plaintiff and have no manner of proprietary rights over the suit and mutt property The defendants have made the mutt premises dirty, defendant 1 having a keep in the mutt and the purpose for which the mutt was started has been ignored the portions of the mutt have been rented for the personal benefit of the defendants and the mutt premises is being used for all sorts of immoral purposes The usual annual one month poor feeding of the needy has been stopped and the income from the mutt lands is being utilised for the personal comforts of the defendants The plaintiff came to know from reliable sources that the defendants were seriously contemplating alienation of the property of the mutt, got issued notices on 3-8-1966 to the defendants and the intending purchasers that the Mutt land cannot be sold and the defendants have not cared to reply Wherefore, the suit for the aforesaid reliefs

(3.) THE 1st defendant filed the written statement which has been adopted by defendants 2 to 6 It is averred in the written statement that the Court of Munsiff has no jurisdiction to entertain the plaint having regard the allegation made therein The plaintiff ought to have filed a suit in the District Judge's Court invoking Sections 91 and 92 of the civil Procedure Code after obtaining necessary sanction from the advocate General It is further averred that the plaintiff has never been in enjoyment of the suit properties and has never exercised any right whatsoever over the suit properties directively or constructively and hence, the suit is barred by limitation and has to be dismissed as such the plaintiff having nourished a dishonest intent of grabbing at the plaint schedule properties has come up with the above false suit for the purpose of prejudicing the interests of defendants 1 to 6 The defendants are respectable citizens and have been leading respectable life. The allegations made in the plaint regarding the conduct of the defendants were denied The grandfather of the 1st defendant-Sree Sree Kottur swamigalu had come down to Bellary and has established himself. Because of the spiritual capacities of the said Sree Sree Kottur swamigalu, he was assisted by Veerashaiva Community at Bellary and the surrounding areas for the purpose of enabling him to emanate the spiritual teachings of the Veerashaiva Dharma, for establishing a Mutt at Bellary. The said Swamigalu was a married man and lead the life of gruhastha and the property which he established for himself by self-acquisition and on account of the gift to him, was in his possession and enjoyment as his personal property. Late Shadaksharaiah who was then in affluent circumstances and was a disciple of the Swamigalu, gifted the plaint schedule property including the house property where swamigalu resided. The gift was in favour of the Swamigalu under the document dated Margasira Sudaha Dasami of Salivahana year 1796. The said property was in possession and enjoyment of the Swamigalu in his own right and neither the plaintiff or his predecessors-in-title continued to have right whatsoever thereafter. The averment made that the defendants were appointed as agents were denied. It is further averred that the possession and enjoyment of the defendants over the suit schedule property and their forefathers were being uninterrupted over a period of 12 years prior to the date of filing the suit. They have perfected title over the same by adverse possession. The allegations made in the plaint regarding the management of the trust was denied. It is further averred that out of love and affection Sri Kottur Swamigalu had towards the family of Shadaksharappa and his undivided brother muddappa, the mortal remains of Shadaksharappa and his nephew mariappa and his grand nephew Veerabhadrappa were permitted to be placed within the precincts of the property gifted to late Sri Manur kottur Swamigalu. The plaintiff also urged that the same concession should be extended even to him and wanted permission to have a samadhi constructed for himself where his mortal remains should be placed after his demise and since the defendants refused that said permission, the plaintiff has come up with this false suit and in addition the market value of the properties have considerably increased and the plaintiff having lost large estate, is trying to grab the plaint schedule properties and hence false suit is filed.