In the High Court of Karnataka at Bangalore
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1 RSA No.816/2009 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 21 ST DAY OF NOVEMBER, 2013 BEFORE THE HON’BLE MR. JUSTICE A.S. PACHHAPURE REGULAR SECOND APPEAL No.816 OF 2009 BETWEEN : 1. A. SEETHARAMA PAI AGED ABOUT 65 YEARS S/O. NARAYAN PAI NH 17, KOTESHWARA VILLAGE KUNDAPUR TALUK-576 222. 2. K. RAMESH KUMAR AGED ABOUT 53 YEARS S/O. K. NARAYAN KAMATH MERCHANT KOTESHWARA VILLAGE KUNDAPUR TALUK-576 222. 3. K. VITTALDAS BHAT AGED ABOUT 52 YEARS S/O. K. KESHAV BHAT NEAR PATTABHIRAMA TEMPLE KOTESHWARA KUNDAPUR TALUK-576 222. 4. LAXMAN N PAI, AGED ABOUT 60 YEARS S/O. NARAYAN PAI DODDONI ROAD, BEEJADY KOTESHWARA VILLAGE KUNDAPUR TALUK-576 222. ... APPELLANTS (BY MISS CHANDINI S, ADV FOR SRI N DINESH RAO, ADV) 2 RSA No.816/2009 AND : 1. SRI. PATTABHI RAMACHANDRA DEVASTHANA KOTESHWARA REP BY MANAGING TRUSTEE K. SRIDHARA KAMATH AGED ABOUT 64 YEARS S/O. LATE K.V.M KAMATH KOTESHWARA, KUNDAPURA-576 222. 2. A. SHANTHARAM SRINIVAS PAI AGED ABOUT 66 YEARS S/O. SRINIVAS PAI KOTESHWARA VILLAGE KUNDAPUR TALUK. 3. K. RANGANATH BHAT AGED ABOUT 51 YEARS S/O. K. VASUDEVA BHAT M.V.ROAD, KOTESHWARA KUNDAPUR TALUK. 4. SUMANA PAI AGED ABOUT 67 YEARS W/O. A. GOPALAKRISHNA PAI 5. NAVEEN SHENOY AGED ABOUT 40 YEARS 6. RAMESH PAI AGED ABOUT 38 YEARS 7. SAVITHA PRABHU AGED ABOUT 37 YEARS 8. KAVITHA PRABHU AGED ABOUT 35 YEARS 9. RAJESH PAI AGED ABOUT 32 YEARS 3 RSA No.816/2009 RESPONDENT NOS.5 TO 9 ARE CHILDREN OF LATE A. GOPALAKRISHNA PAI RESIDING AT KOTESHWARA KUNDAPUR TALUK - 576 222. 10. K. MATHIVANTHA KAMATH AGED ABOUT 65 YEARS S/O. DEVANNA RAMAKRISHNA KAMATH BOBBARAYAMAKKI KOTESHWARA-576 222. 11. PRAKASH PAI AGED ABOUT 37 YEARS S/O. PANDURANGA PAI NEAR PANCHAYAT OFFICE KOTESHWARA-576 222. ... RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 28.02.2009 PASSED IN RA NO.38/2008, THE FILE OF THE DISTRICT JUDGE, UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.06.2008 PASSED IN OS NO.81/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), KUNDAPURA. THIS RSA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING: J U D G M E N T The appellants have challenged the dismissal of their suit instituted, seeking declaration that the selection of second defendant as a trustee of first defendant temple in the general body meeting is not in accordance 4 RSA No.816/2009 with resolution dated 07.04.1948 and also dismissal of their appeal by the First Appellate Court challenging the decree of Trial Court. 2. The facts relevant for the purpose of this appeal are as under: Parties will be referred as per their rank before the Trial Court for the sake of convenience. The appellants herein are the plaintiffs whereas respondents are defendants in the suit instituted seeking aforesaid relief. The first defendant is the trust of Sri.Pattabhi Ramachandra Devasthana Koteshwar represented by its Managing Trustee. The plaintiffs are the residents of Koteshwara village in Kundapura Taluk and belonging to the family known as ‘Atkere Pai’ family and the members of the said family are the devotees of aforesaid temple and their ancestors were parties to the resolution 5 RSA No.816/2009 dated 07.04.1948. On the basis of said resolution, the trust has been created and in pursuance of the said resolution, the management of the temple has to be governed by a Committee of 7 trustees for a period of 5 years and one of the trustee has to be from Atkere Pai family and trustee was to be appointed to the aforesaid trust. As it fell due in the month of December, 2003, a general body meeting of the trust was held on 26.12.2003 and the first plaintiff was intending to contest for the post of trusteeship from Atkere Pai family quota and he approached the first defendant – trust on 23.12.2003 and communicated the practice of adopting or selecting one person from his family of the trustee. He asserted that the management evaded his request and on 26.12.2003 in the general body meeting the members were selected without any election. According to the plaintiffs, there has to be an election amongst eligible 6 RSA No.816/2009 members and that a democratic process has to be followed in the selection of trustees. It is their grievance that no calendar of events was issued, no nominations were called for and no election was held. It was also their grievance that the second defendant was selected without following the aforesaid procedure and without any election in the general body meeting dated 26.12.2003. Before institution of the suit, notice was issued and there was no compliance by the defendants and it is in these circumstances, that the plaintiffs instituted a suit under Section 92 CPC for the relief aforesaid. The defendants in the written statement have denied the averments made and it is their specific contention that in pursuance of the resolution dated 07.04.1948, one member each from 7 families has to be a trustee and amongst 7 trustees one has to be selected as a Managing Trustee. It was their specific contention that 7 RSA No.816/2009 there was no system of election by issuing calendar of events calling upon the families to submit the nominations. It was their contention that since from the year 1948 onwards till the date of general body meeting dated 26.12.2003, the selection of trustees is from each of the families of 7 trustees who took management for the first time in 1948 has been followed till date and hence, they sought for dismissal of the suit. On the basis of these pleadings, the Trial Court has framed the following issues: 1. Whether the plaintiffs prove that the selection of defendant No.2 as Trustee of defendant No.1 Temple made in General Body Meeting of Sri Pattabhi Ramachandra Devasthana, Koteshwara is not in accordance with the resolution dated 07.04.1948 and it is null and void? 8 RSA No.816/2009 2. Whether the plaintiffs further prove that defendant No.2 is not a lawful trustee of defendant No.1 Temple and therefore, fresh election is to be held in conformity of resolution dated 07.04.1948? 3. Whether defendants prove that the suit of the plaintiffs is not maintainable without the leave of the Court as provided u/S.92 of CPC? 4. Whether defendants further prove that the selection was duly made as per the resolution dated 05.05.1946 and 07.04.1948 as stated in para 4 of the written statement? 5. Whether defendants further prove that the suit is barred by limitation? 6. Whether defendants further prove that this Court has no jurisdiction to entertain and try the suit as stated in para No.14 of the written statement? 9 RSA No.816/2009 7. Whether the plaintiffs are entitled for declaratory relief sought for by them? 8. What order or decree? The parties were permitted to lead their evidence and accordingly, the plaintiffs examined PWs.1 and 2 and got marked documents Exs.P1 to P7. The defendants examined DW1 and the documents Exs.D1 to D4 were marked. The Trial Court on the basis of said evidence and after hearing the counsel for parties and taking into consideration the resolution dated 07.04.1948 in which there was a formation of constructive trust came to a conclusion that selection of the second defendant as trustee of first defendant trust is lawful and further holding that there is no system of election by issuing calendar of events, dismissed the suit of appellants. Aggrieved by the judgment and decree of the Trial Court, plaintiffs approached the District Judge in RA No.38/2008 and vide 10 RSA No.816/2009 judgment and decree dated 28.02.2009, the learned District Judge has affirmed the judgment of the Trial Court by dismissing the appeal. Aggrieved by the concurrent findings of the Courts below, the plaintiffs are in appeal before this Court. 3. I have heard learned Counsel for the appellants. 4. The grievance of learned Counsel for the appellants is that under the resolution dated 07.04.1948, it is the election that has to be made by issuing calendar of events and electing one person as trustee from each of the 7 families and that the defendants did not adopt this procedure in pursuance of the aforesaid resolution and in the absence of election, it is the contention of learned Counsel that the selection of the Managing Committee of the trust is illegal and the Courts below have ignored this fact, hence, it is contended that there is 11 RSA No.816/2009 a substantial question of law for consideration on the aforesaid premise. 5. Though the Trial Court has taken into consideration the resolution dated 07.04.1948 produced at Ex.D1A by referring to the facts contained in the said resolution in fact the First Appellate Court has extracted the said resolution dated 07.04.1948 in para 21 of its judgment. Perusal of this extract aforesaid, it is stated that in pursuance of the earlier resolution dated 05.05.1946, in the meeting held on 07.04.1948, minutes of meeting were enumerated wherein all the members of 7 families including the family of Atkere Laxmana Pai, Vittal Manjunath Kamath and in their leadership, it is stated that the family members of 7 families have contributed the funds for construction of temple of Lord Pattabhi Ramachandra and it is stated that one person from each of these 7 families are selected as 12 RSA No.816/2009 members of the Managing Committee of the temple trust.