Ashwathakate Bhaktha Mandali vs The Commissioner Bruhath Bangalore Mahanagara Palike

(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T)

The appeal is filed by the appellant-plaintiff challenging the judgment and decree dated 30.11.2021 passed by the learned XXXIV Additional City Civil and Sessions Judge, Bengaluru, in Original Suit No.3531 of 2015, wherein the trial Court dismissed the suit of the appellant filed under Order VII, Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'CPC') seeking for relief of declaration and possession of the suit schedule property and to direct the respondent-defendant to remove the construction material dumped in and around the illegal construction and to pay mesne profits.

For the purpose of convenience, the parties are referred to as per their rankings before the trial Court. The appellant is the plaintiff and the respondent is the defendant.

The brief facts of the case of the appellant-plaintiff are as under:

The plaintiff is the General Secretary of Ashwathakate Bhaktha Mandali having registered by virtue of a registered Trust Deed dated 21.04.1992. The suit schedule property, measuring 120 X 80 square feet together with a land measuring 35 feet and North to South 21.5 feet consisted of Ashwathakate Temple, originally belonged to Sri B. Vasudeva Rao, son of Sri Seetharamaiah. The schedule property was purchased by B. Vasudeva Rao from Sri Venkatarama and Rudramuni under a registered Sale Deed dated 15.08.1949. The said property was gifted by Sri B. Vasudeva Rao to G. Rangappa, J. Maribasappa, K. Basavaraju, G. R. Venkatesh, Channappa, S. Lakshminarayanappa and C. Anjanappa under a registered Gift Deed dated 26.02.1966 with a condition that a Kalyana Mantapa by name Sree Gayathri Kalyana Mantapa has to be constructed for the public purpose and a Trust Deed should be registered for that purpose. All the Donees created a Trust as per the desire of the Donor and a Trust Deed was registered on 10.09.1970. Among those Trustees, Sri Channappa carried out all the work as per the creation of the Trust, however, other Trustees did not show any interest and later, all of them expired. Said Channappa was the only person who worked hard and tried to accomplish the desire of the Donor, Late Vasudeva Rao. Channappa, due to his illness, was not able to take care of the existing Temple at the suit schedule property. Therefore, as one of the Trustees, Channappa transferred his responsibility to Sri Tyagaraj, plaintiff, on 14.01.1992 under authorisation letter, handing over the responsibility of the Temple. Channappa died on 20.04.1992. The plaintiff registered a Trust Deed on 21.04.1992. At the said land, there is a Shiva Temple from time immemorial consisting of idols of Lord Ganesha, Shivalinga, Shakthi and Subramani with Velli Devani and the Temple consisted of a sheet-roof. The plaintiff appointed the Priest and he has been carrying out all the works of the said Temple. He is performing pujas, ceremonies, annadhana, processions and other services to the general public. In the year 2007, a peepal tree (Arali mara) fell on the Temple and the sheet-roofing of the Temple collapsed. As the Temple was severely damaged, the plaintiff removed the peepal tree and took initiative to renovate the Temple by carrying out plastering and molding work, but the BBMP issued notice to the plaintiff to stop the construction work on 21.11.2008 and to produce the sanctioned plan, etc. The plaintiff gave a reply on 19.12.2018 contending that he is carrying out only renovation work by plastering and molding, and also narrated the grievance and hurdles, he was facing due to the interference of the defendant to the Administrator-BBMP. Therefore, the Special Officer, Administrative Secretary, addressed a letter asking for clarifications and records pertaining to the suit schedule property to the Assistant Executive Engineer, Binnipet. The plaintiff, thereafter, started collecting documents pertaining to the Temple to submit to the BBMP and at that time, he came to know that the adjacent land measuring about East to West 85 feet and North to South 80 feet at the Western side also belonged to Ashwathakate Bhaktha Mandali, which was donated by Late Vasudeva Rao with an intention of constructing Gayathri Kalyana Mantapa and at the time of excavation, an old stone inscription carved in the Kannada language was also found with contents, which clearly established that the foundation for the construction of Gayathri Kalyana Mantapa was inaugurated on 13.09.1970 by Dr. Sri Sri Sri Shivakumara Swami in the presence of Hon'ble Guest, Sri Aluru Hanumanthappa, Forest Minister of the Mysore Government. The defendant had constructed a three floor building consisting of basement, first and second floor which is being used as a Ward Office by encroaching, trespassing and using the land belonging to the plaintiff without any right, title or authority. The defendant has no right, title or interest for committing such illegal acts. The defendant has trespassed upon the plaintiff's property, which is a part of the immovable property belonging to the plaintiff. The plaintiff is still paying electricity bill in the name of Channappa, meter bearing No.MR No.42 even though in the BBMP records, the description of the property is entered as Gayathri Kalyana Mantapa. The plaintiff is possessing all the necessary documents which prove that the entire land, including the portion, which the defendant had encroached, trespassed illegally without any right, title or interest. Therefore, the plaintiff issued a legal notice on 02.12.2010 to the defendant alleging illegal encroachment upon its property under Section 482 of the Karnataka Municipal Corporations Act, 1976, but the defendant did not reply to the said legal notice. On the other hand, the defendant further constructed and dumped the sand, bricks, stones and other material in the suit schedule property with a view to construct "Bangalore One" without any right, title, and interest of any manner over the schedule property belonging to the plaintiff. The plaintiff again issued a legal notice against the defendant for illegal encroachment. The defendant did not reply to the legal notice, but further started construction. Hence, the plaintiff filed a suit in Original Suit No.3531 of 2015.

The respondent-defendant-BBMP appeared through its counsel and filed written statement denying the title of the plaintiff. In the written statement, the defendant has taken the contention that the plaintiff has not issued the statutory notice to the defendant before filing the suit, which is required to be issued under the provisions of Section 482 of the Karnataka Municipal Corporations Act, 1976. It is contended that the suit schedule property originally belonged to Gayathri Kalyana Mantapa Trust and the Gayathri Kalyana Mantapa Trust had gifted the property to the BBMP. As such, the BBMP is in possession of the property and has constructed the Ward Office. On all these grounds, the defendant prayed for dismissal of the suit.

The trial Court, based on the above pleadings, framed the following issues:

The plaintiff, in order to prove its case, examined the General Secretary of Ashwathakate Bhaktha Mandali as PW1 and relied upon in all twenty-three documents as per Exs.P1 to P23. The defendant has not led the oral evidence, but has relied upon six photographs vide Exs.D1 to D6.

The trial Court after considering the pleadings, issues, oral and documentary evidence on record dismissed the suit on the ground that the plaintiff failed to prove its title in respect of the suit schedule property.

Being aggrieved by the dismissal of the suit before the trial Court, the appellant-plaintiff has preferred this appeal.

We have heard Smt. P. Varalakshmi, learned counsel for the appellant-plaintiff, and Sri B.S. Satyanand, learned counsel for the respondent-defendant.

Learned counsel for the appellant-plaintiff has contended that the judgment and decree passed by the trial Court is not in accordance with law. The plaintiff is in possession of the suit schedule property and the respondent-defendant has no right over the same. However, the trial Court has committed an error in not considering the material produced by the plaintiff. It is contended that the suit schedule property originally belongs to Gayathri Kalyana Mantapa Trust and that Gayathri Kalyana Mantapa Trust had gifted the property to the defendant-BBMP is far from truth. In fact, the defendant has encroached upon the land of the plaintiff and constructed the Ward Office. The defendant has not produced the Gift Deed, or any single document, or any material to show as to how it has any right, title to construct in the suit schedule property. Hence, the defendant has failed to establish its title. It is contended that in Ex.P4-Gift Deed, there is a clear mention that Ashwathakate is present on the Western side and it is also stated that the said Donor has already gifted East to West 35 feet and North to South 21.5 feet to Sri Vishwanathaswamy for Samartha Ramdas Swami Ashrama and he had constructed Ashrama and excluding this dimension, the remaining portion includes Ashwathakate also. Therefore, it establishes that Ashwathakate was present at the time of gifting the property, but the trial Court committed an error in not looking into this fact and held that Gayathri Kalyana Mantapa Trust and Ashwathakate Bhaktha Mandali are different. The trial Court has wrongly observed that the plaintiff has admitted in his cross-examination, which is not true and he had categorically denied the suggestions made by the defendant's counsel that both are different. It is contended that the property was gifted for the pious purpose with a condition that Gayathri Kalyana Mantapa has to be constructed and to keep the Donor's name forever. But the defendant has encroached, trespassed into the property and started constructing 'Bengaluru One' without any right or authority over the suit schedule property, which is opposite to the ambition of gifting the suit schedule property for a pious object and for the public purpose. The defendant has not furnished any documents to show its title to the property. In fact, one of the Trustees, by name, Late Channappa has authorised the plaintiff, Sri Tyagaraj, for development of Ashwathakate Temple and with the sole intention, the plaintiff has registered the Trust in the name of Ashwathakate Bhaktha Mandali and he being the General Secretary of the said Trust, he is entitled to file the suit and appear before the Court. He is the person authorised to safeguard the interest involved in the Gift Deed by the Donor and he has filed the suit as soon as he came to know about the encroachment, trespass and illegal act of the defendant. Further, the plaintiff has filed the suit to declare that the suit schedule property belongs to Ashwathakate Bhaktha Mandali Trust and he is not claiming himself as the Owner, however, the trial Court has again erred by holding that the plaintiff has claimed the ownership. On all these grounds, the appellant-plaintiff prayed to allow the appeal and to decree the suit.

Per contra, the learned counsel for the respondent-defendant-BBMP has vehemently contended that the suit filed by the plaintiff for relief of declaration is not maintainable on the ground that the plaintiff has failed to prove its title to the property. Secondly, the suit was filed without complying the statutory provisions under Section 482 of the Karnataka Municipal Corporations Act, 1976. Thirdly, the suit schedule property originally belongs to Gayathri Kalyana Mantapa Trust and the Gayathri Kalyana Mantapa Trust had gifted the suit property to the defendant-BBMP. As such, the defendant is the owner and in possession of the property and accordingly, the defendant has constructed the Ward Office and running 'Bengaluru One'. Therefore, the plaintiff has nothing to do with the suit schedule property. On all these grounds, the learned counsel prayed to dismiss the appeal.

In view of the submissions made by both the parties, the following points that would arise for our consideration in the appeal are:

It is the case of the appellant-plaintiff that Sri B. Vasudeva Rao executed a registered Gift Deed in the name of seven persons on 26.02.1966, wherein the Donor gifted the suit schedule property with a condition that a Kalyana Mantapa, by name Sree Gayathri Kalyana Mantapa, has to be constructed for the public purpose and a Trust Deed should be registered for that purpose. Since other Donees' died, one of the Trustees, Sri Channappa was looking after the entire property. Due to his illness, Channappa was not able to take care of the existing Temple at the suit schedule property, and therefore, on 14.01.1992, Channappa transferred his responsibility to the plaintiff, Sri Tyagaraj, under authorisation letter and the plaintiff was taking care of the responsibility of the Temple and the plaintiff registered a Trust Deed on 21.04.1992, and therefore, he seeks the relief of declaration.

On the other hand, the respondent-defendant disputed the title of the plaintiff and on the contrary, it has stated that Gayathri Kalyana Mantapa Trust executed the Gift Deed in favour of the defendant-BBMP and the defendant constructed a building and running 'Bengaluru One' Office, i.e. its Ward Office.

After hearing the pleadings of both parties, it is just and necessary to analyse Section 34 of the Specific Relief Act, 1963, which reads as under:

To maintain a suit under Section 34 of the Specific Relief Act, 1963, the following conditions are to be fulfilled:

To obtain the relief of declaration, the plaintiff must establish that (1) at the time of the suit, he is entitled to any legal character or any right to any property, (2) The defendant has denied or is interested in denying the character or title of the plaintiff, (3) The declaration asked for is a declaration that the plaintiff is entitled to a legal character or to a right to property, (4) The plaintiff is not in a position to claim a further relief from a bare declaration of his title. Even if all these conditions are fulfilled, the Court has still to grant or not to grant a declaratory relief depending on the circumstances of each case.

Even though if the essential elements are established, yet it is discretion of the Court to grant a relief. The relief of declaration cannot be claimed as a matter of right. In cases where for non-joinder of the necessary parties, the Court can resort to suit for declaration under Section 34 of the Specific Relief Act, 1963. The discretion which the Court has to exercise is a judicial discretion. That discretion has to be exercised on well established principles. The Court has to consider the nature of obligation in respect of which performance is sought. No hard and fast rule can be laid down for determining whether the discretionary relief should be granted or refused. The exercise of discretion depends upon the facts of each case. A remote chance of succeeding an estate cannot give a right for obtaining a declaration that alienation by a limited owner is avoided.

In the light of the above settled law, let us examine the oral evidence of the parties. In order to prove the title of the plaintiff, Sri Tyagaraj, General Secretary of Ashwathakate Bhaktha Mandali, was examined as PW1. In his evidence, he has reiterated the averments made in the claim. In support of his oral evidence, he has furnished Ex.P1-Letter dated 20.03.2014 of Tahsildar, Bengaluru North Taluk, showing his income. Exs.P2 and P3 are the reports of the Revenue Inspector. Ex.P4 is the certified copy of the registered Gift Deed executed by Sri B. Vasudeva Rao in favour of the Trust. PW1 was subjected to cross-examination at length. In the cross-examination, he admits that the suit schedule property originally belonged to B. Vasudeva Rao. The Trustees of both Trusts are different persons. Now, Gayathri Kalyana Mantapa Trust is prevailing. He admits that in Ex.P19-Khata extract, the name of Gayathri Kalyana Mantapa has been mentioned. PW1 further admits the contents of Exs.D1 to D6-photographs and the photographs pertain to the suit schedule property. He also admits that one Chowdappa was the Chairman of Gayathri Kalyana Mantapa Trust and he does not know whether there was agreement between Chowdappa and the defendant in respect of the suit schedule property. PW1 specifically admitted that the Members of Gayathri Kalyana Mantapa Trust and the Members of Ashwathakate Bhaktha Mandali are different. He also admitted that prior to the institution of the suit, the plaintiff never paid taxes to the BBMP. He also admitted that he has not furnished bye-law of the Society which was formed in the year 1992. He also admits that the Members shown in the bye-law of the year 1992 and the Members shown in the bye-law registered in the year 2010 are different. He further admits that he cannot describe the schedule of the entire suit property and at present, his family members are looking after Ashwathakate Bhaktha Mandali. He further admits that the Trust has been formed for the general public. He categorically admitted that in Exs.P14 and Ex.P15-Encumberance Certificates, there is no mention of Ashwathakate Bhaktha Mandali. On the other hand, in Ex.P19-Khata extract, the name of Gayathri Kalyana Mantapa is shown and the name of Ashwathakate Bhaktha Mandali is not mentioned. Therefore, in the cross-examination, PW1 has categorically admitted that the plaintiff's Ashwathakate Bhaktha Mandali has nothing to do with the property of Gayathri Kalyana Mantapa Trust. The records further demonstrate that the schedule property has been gifted to the BBMP, wherein the BBMP has constructed the building and running its Ward Office.

Learned counsel for the appellant-plaintiff contended that the Gift Deed was executed in favour of Ashwathakate Bhaktha Mandali in order to construct Gayathri Kalyana Mantapa. Hence, it is just and necessary to go through the contents of Ex.P4.

The contents of Ex.P4-Gift Deed read as under:

It shows that the Gift Deed was executed in favour of seven persons on the pretext that they have to construct Gayathri Kalyana Mantapa for general public and not in favour of Ashwathakate Bhaktha Mandali.

Learned counsel for the appellant-plaintiff contended that as per the instructions of the Donor, Sri B. Vasudeva Rao, a Trust was formed in the year 1970 as per Ex.P6-Trust Deed.

The contents of Ex.P6 clearly demonstrate that the Trust shall be called as Sree Gayathri Kalyana Mantapa Trust, and the Trust shall be managed by a Committee of Trustees consisting of six persons, who shall be called as original Trustees. The original Trustees shall hold Office as Trustees for life, the eldest son of demising Trustee shall proceed as an original Trustee in the event of the death of any original Trustee and shall hold Office during his lifetime (succession by lineal descendants) and the Trustees shall elect themselves the President, Vice-President, Honorary Secretary and Honorary Treasurer. Further, as per the terms and conditions of Clause 17.3(h) of Ex.P6, the Secretary shall be the authorised person, who can institute legal proceedings on behalf of the Trust and also sued by others. Ex.P7-authorisation letter dated 14.01.1992 is executed by Late Channappa in favour of the plaintiff, whereunder, the plaintiff was given authority to look after, carryout worship and develop/improve Ashwathakate Temple, which is a part of the property gifted under Ex.P4. There is no intention/wish of Donor in Ex.P4 that Trustees can transfer the gifted property or its portion/part to anybody to look after and improve. Further, there are no terms and conditions in Ex.P6 that original Trustees can transfer the gifted property or its portion/part to anybody to look after and improve. The property gifted under Ex.P4 includes Ashwathakate, which belongs to Sree Gayathri Kalyana Mantapa Trust. As per Ex.P6, the Secretary of Gayathri Kalyana Mantapa Trust shall be the authorised person, who can institute the legal proceedings on behalf of the Trust, but the plaintiff-Ashwathakate Bhaktha Mandali is not the owner of Ashwathakate, which is the portion/part of the gifted property under Ex.P4. The plaintiff, i.e. the General Secretary of Ashwathakate Bhaktha Mandali, who has been examined as PW1, in categorical terms admitted that there is no relationship between the Members of Gayathri Kalyana Mantapa Trust and themselves and the Trustees of both Gayathri Kalyana Mantapa Trust and Ashwathakate Bhaktha Mandali Trust are different. From the material placed on record, it shows that the plaintiff has not placed sufficient material to prove its ownership in respect of the suit schedule property.

It is a settled law that in a suit for declaration of title, the burden heavily lies on the plaintiff and the plaintiff is not supposed to depend upon the weakness in the case set up by defendant. It was held by the Hon’ble Apex Court in the decision in between Moran Mar Basselios Catholicos and Another v. The Most Rev. Mar Poulose Athanasius and Others reported in (1954) 2 SCC 42 and another judgment in between Union of India and Others v. Vasavi Co-operative Housing Society Limited and Others reported in (2014) 2 SCC 269 that in a suit for declaration, heavy burden rests upon the plaintiff to prove the title, particularly when it is in respect of an item of immovable property. There are certain known sources of acquisition of title, such as by way of succession, purchase, assignment from the Government, or even by perfecting the title by adverse possession. To prove the title, what becomes essential is to identify the erstwhile owner of the property and then to explain the manner in which it has accrued to the plaintiff. Even if there exists certain missing links in the chain of events that connect the original owner and the plaintiff, the title can be said to have been established, in the absence of any stronger claim by the defendant.

Further, the Hon'ble Apex Court in the case of Moran Mar Basselios (supra) held that in a suit for declaration if the plaintiffs are to succeed, they must do so on the strength of their own title.

Though the defendant-BBMP has taken up the contention that Gayathri Kalyana Mantapa Trust executed the Gift Deed in favour of the BBMP and in turn, the BBMP constructed its Ward Office, but no document is placed on record by the defendant. However, it is for the plaintiff to prove its title to the suit schedule property and weakness of the defendant cannot be used as a trump card by the plaintiff. Looking into any angle, the plaintiff has failed to prove its title to the suit schedule property. Therefore, the trial Court rightly dismissed the suit of the plaintiff. Hence, no interference is called for in that regard. Accordingly, we dismiss the appeal.

In view of the dismissal of the appeal, pending interlocutory applications, if any, shall stand dismissed.