ALBAN DSOUZA Vs. LAND TRIBUNAL UDUPI

JUDGEMENT

(1.) THESE two appeals arise from the judgment and order dated 13th of october, 1998 passed by XIII Additional City Civil Judge, Bangalore on i. As. I and IV filed in O. S. No. 10169 of 1998, dismissing I. A. I filed by the plaintiff for temporary injunction and allowing I. A. IV filed by the defendants for vacating the ex parts injunction.

(2.) THE facts of the case in a nutshell are: the present plaintiff-appellant had filed the suit for a decree of permanent injunction restraining the defendants, their henchmen or their agents and servants from demolishing the temple of lord Eshwara as well as restraining them from putting up construction and from digging foundation as well as from changing the nature of the property etc. , till disposal of the suit. The plaintiff has stated that the property in dispute namely, Late muniswamappa Choultry or Maestry Mariyappa Choultry comprises in its fold a temple of Lord Eshwara alleged to be situated on the land measuring one and a half acres bearing old Sy. No. 109 and new Sy. No. 67 situated at 4th Cross, Subedar Chatram Road, R. K. Puram, Bangalore 560009, which came to be known as Muniswamappa Choultry and that was Public Religious Endowment Trust for the development and maintenance of temple of Lord Eshwara. The plaintiff claimed the right to manage on the basis of some Will alleged to have been executed by smt. Laxmamma as well as the Will as per Annexure-L to the plaint. The plaintiff alleged that the defendant by virtue of some documents of sale alleged, to have been executed by Smt. Saraswathamma and Sri narayanappa who had been the tenants started interfering with the property of Lord Eshwara Temple. Therefore, the plaintiff filed the suit and by IA sought temporary injunction restraining the defendants from interfering with the property. On the notice being served to the defendants, the defendants filed the written statement as well as application for vacation of interim order which has been granted by the Trial Court at the time when the suit was filed. The matter was heard by the Trial court. It appears that certain affidavits had also been filed on behalf of the plaintiff to show the existence of the temple. Any way, the Trial court dismissed the application for temporary injunction on the ground that the property being the public charitable or religious trust, suit was barred as the procedure prescribed under Section 92 of the CPC was not followed and as such the suit was not maintainable. No doubt it recorded a finding that the defendants had failed to prove then source of their title to the suit schedule property. The Trial Court further observed that personally the plaintiff will not suffer if the injunction is not granted meaning thereby that if the temple is theirs and if it demolished the plaintiff will not be personally affected. Feeling aggrieved by the judgment and order of the Trial Court, the plaintiff has come up in appeal before this Court.

(3.) I have heard Sri S. P. Shankar, learned Counsel for the appellant in both the appeals. It was urged that the Court below erred in opining that the suit in question was barred by Section 92 of the Code of Civil procedure and on that basis Sri Shankar contended that the court below illegally refused to grant temporary injunction. Learned Counsel further submitted that there is prima facie case for determination that the case involves material question of fact and law to be Determined and in order to see that the suit may not be rendered infructuous, the Court below ought to have granted temporary injunction as there is a threat to demolish the existing temple and change the nature of the property in dispute. Further, if the injunction is not granted the suit may be rendered infructuous which may result in multiplicity of legal proceedings and as such the balance of convenience are in favour of the plaintiff-appellant and further defendants would not be affected if injunction is granted and suit tried expeditiously.