1 RSA No.816/2009

IN THE HIGH COURT OF 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 TALUK-576 222.

2. K. RAMESH KUMAR AGED ABOUT 53 YEARS S/O. K. NARAYAN KAMATH MERCHANT KOTESHWARA VILLAGE -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)

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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

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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, , 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

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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

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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

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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

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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?

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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?

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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

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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

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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

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members of the Managing Committee of the temple trust. It is also stated that one person amongst 7 has to be selected as Managing

Trustee. No other person other than members of

7 families were allowed to participate in the meeting for the selection of trustee. On that day, 7 persons from each of these families were selected as trustee who has to manage the trust by selecting one person amongst them as the managing trustee. It is also stated that such selection that has to be made for every 5 years from 7 families and one amongst them has to be

Managing Trustee. In case of vacancy of any one trustee, one person from the family of vacated trustee was to be selected as trustee for the remaining period.

6. So after looking to the aforesaid resolution which was passed on 07.04.1948 produced at Ex.D1A, PW1 who was examined in the

Trial Court admits that since from that date for

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every 5 years till 26.12.2003, one trustee has been selected from each of the family and it is the custom that has been adopted by the trust in selecting the trustee. This admission of PW1 has been extracted by the Courts below. That apart, perusal of this resolution under Ex.D1A does not reveal the procedure for election by issuing calendar of events calling upon the members to submit their nominations etc., what it is stated in the resolution is that the general body meeting of the members of aforesaid

7 families are to be held and in that meeting, one trustee from each of those families has to be selected as the trustee.

7. So considering this fact and circumstances, the Trial Court was of the opinion that the selection of second defendant in the general body meeting dated 26.12.2003 was done in pursuance of the resolution at Ex.D1A and ultimately, was of the opinion that the

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plaintiffs are not entitled to the relief sought for. The First Appellate Court as well assigned elaborate reasons referring and extracting resolution of Ex.D1A and admission of PW1 about the custom that was adopted in pursuance of the resolution at Ex.D1A was of the opinion that the plaintiffs have not made out any grounds to interfere with the judgment and decree of the

Trial Court and consequently dismissed the appeal.

8. Perusal of the findings of Courts below and consistent and cogent reasons assigned in giving the findings and also considering the submission of learned Counsel for the appellants, I do not find any substantial question of law for consideration in this appeal. As there are concurrent findings of facts and as no substantial question of law arose, this appeal deserves to be dismissed.

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Consequently, the appeal fails and it is accordingly dismissed.

Sd/- JUDGE

*bgn/-