SARVAJANIK VACHANALAYA Vs. B V V SANGHA

JUDGEMENT

(1.) THESE three proceedings are inter -related as the subject matter of the parties are all one and the same. Therefore, they are clubbed together and taken up for consideration and disposed of by this common order.

(2.) THE subject matter of the proceedings is property bearing Municipal No.246 situated in municipal ward No.1 at Mudhol Municipality bounded on the south by Public road and beyond it, King George High School, West by Municipal lane and beyond it Shahi Masjid, east by Municipal open space and beyond it Dr.Kathawate's house and north by municipal land and beyond it Dr.Kathavate's Dispensary. This was the description given in the year 1966, when the Original Suit No.62/1966 is filed. The averments in the said plaint discloses that the plaintiff in the said suit is a Sarvajanik Vachanalay, Mudhol, a public institution run by the public of Mudhol. The origin of the said institution dates back to the year 1869, when a part of the construction of the building was completed. The public of the Mudhol started a library therein on a modest scale for the benefit of public. It was then known as Native General Library, Mudhol. It continued to bear that name till the year 1929 in which year, this name was changed to Sarvajanik Wachanalaya, Mudhol. The entire building as on the date of suit was owned by the plaintiff. The building was completed in or about the year 1891 and entire expenses were met mainly by the public contribution. The opening ceremony was conducted on 28.03.1981. In the year 1894, the then State Government of Mudhol, which was a princely state requested the Managing Committee of the plaintiff to spare a part of the suit building for conducting some classes of its English School as the State school was found to be insufficient to accommodate the students. Accordingly, the plaintiff agreed to the State's proposal and permitted the State to hold some of the English school classes in a part of the suit building. On or about 01.06.1920, the State Government of Mudhol requested the Managing Committee of the plaintiff to shift the Wachanalaya to the State owned building nearby in which the State was then running Girls' School so that the former Government old English school, which, by then, had developed into the full -pledged High School, which occupied the entire building and house in its high school there. The plaintiff graciously acceded to the request of the State Government and without determining to their proprietary right over the suit building, they shifted Wachanalaya to the State building, in which, Girls' School was being housed till then. This was purely a temporary arrangement by consent, till the Government would own a building shortly thereafter and located its High School there and immediately thereafter to vacate and hand over the possession of suit building to run a public Wachanalaya there. The Mudhol Darbar, however, did not make any attempt for construction of new building for its High School. Thereafter, the State of Mudhol merged and formed the part of the then Bombay State, which is now forms part of Mysore State.

(3.) THE Mudhol High School referred to above, was a Government institution. The said High School was handed over to the Basaveshwara Vidhyavardhaka Sangha, Bagalkot. The said Sangha constructed a new building of its own at Mudhol, to which, the High School located till then in the suit building was shifted. In the year 1965, in spite of handing over the possession of the suit building to the plaintiff, the second defendant located its Girls' High School in the suit building. The reason being the Government transferred the Girls' High School in favour of defendant No.2 along with existing movable and immovable properties including the suit building. The Government had no right over the suit building and therefore they could not have transferred the suit building to the said Sangha. When questioned about this act, the Government issued a show cause notice to the plaintiff to show cause as to why the said building should not be treated as theirs. The reply was sent. When the Government started to assert that the building in the possession of the second defendant is theirs as well as Sangha the plaintiff was constrained to file the suit for possession, future mesne profits etc. The suit was contested. After trial the suit came to be decreed on 17.04.1971. Aggrieved by the said judgment and decree, the Sangha/the second defendant preferred an appeal in R.A.No.37/1971, which also came to be dismissed, after contest on 18.07.1975. The Sangha/ the second defendant in the said suit preferred an appeal to the High Court in R.S.A.No.642/1975, which came to be dismissed on 21.09.1982 for non -prosecution. Subsequently, applications were filed to recall the said order, which also came to be dismissed on 19.03.1994. Thereafter, the plaintiff filed Execution Petition No.6/1994 for execution of the decree on 19.09.1984. As the second appeal was not restored, the second defendant in the said suit preferred a Special Leave Petition before the Hon'ble Supreme Court which also came to be rejected in the year 1995. In order to stall the execution of the decree for possession, O.S.No.42/1996 came to be filed before the Civil Judge (Jr.Dn.), Mudhol by parents of the children studying in the Girls' School seeking a declaration that the decree passed in O.S.No.62/1966 is null and void. They sought for an order of temporary injunction. Temporary injunction was granted. However, subsequently, the suit after contest came to be dismissed. Throughout the plaintiff was represented by one Jagannath Tankasali, the trustee. The sole trustee died on 27.11.1997. After his death, on 28.12.1997, a meeting of all the members was held and one Sri Tammanna S/o. Parappa Budani was unanimously elected as President. In fact, all of them filed an application under Section 47 of the Bombay Public Trust Act, 1950 as amended by the Maharastra Legislature requesting to appoint those persons as trustees. On consideration of the said request, the Charity Commissioner passed an order on 19.05.2003. The said Tammanna as such trustee filed an application - I.A.No.5 in the execution case No.6/1994 to come on record in place of deceased trustee. The judgment debtor, the second defendant in the suit filed his objections contesting the said application. However, the executing court allowed the application by an order dated 29.09.2006. Aggrieved by the said order, the judgment debtor/second defendant in the suit preferred the C.R.P. No.749/2006 before this Court. A similar application was filed in the Final Decree Proceedings, where request made for enquiry under Order 20 Rule 12 for mesne profits came to be dismissed by an order dated 12.01.2010.