AI Structured Summary
Not yet generated for this judgment
Judgment
L. Narayana Swamy, J.—The Defendant in O.S. No. 344/1982 filed this appeal challenging the judgment and decree passed by the trial court as well as the first appellate court. The original Plaintiffs 1 and 2 have died and have been substituted by present care-takers.
The learned Counsel for the Appellant submitted to allow the appeal on the following grounds:
(i) u/s 41(h) of the Specific Relief Act 1963, when equally efficacious relief can certainly be obtained by any other usual mode of proceedings, except in case of breach of trust an injunction cannot be granted.
(ii) Since the relief sought by the Plaintiff it is in respect of the Trust Property and its activities, he has to invoke Section 92 of Code of Civil Procedure, since the prayer in the plaint is for delivery of possession of the Trust Property after demolishing the construction put up in the Trust property. Hence the suit of the Plaintiff should have been dismissed for want of jurisdiction.
(iii) The Plaintiffs claim themselves as caretakers in para 4 of the plaint. In the trust property, there is no scope for care-taker and its entire administration belongs to the Trust committee. When such being the case. the care takers do not possess any right and therefore no relief could be granted by the Courts.
(iv) Originally suit was filed only for injunction and thereafter amendment was made for mandatory injunction since demolition took place by obtaining an interim order of injunction in O.S. No. 364/82.
(v) The case of the Plaintiffs that they are the care takers and they are in possession in respect of Garadi (Wrestling place) is also false and baseless. As per Ex. P6 dated 8.2.1963 earlier owners of the property namely, Gowdara Siddappa and Lingappa and their sons decided to constitute a Trust and entire property was transferred to the Trust including Garadi'' along with the equipments. Earlier to the constitution of the Trust or during the currency of the Trust, no persons including the Respondents-Plaintiffs were appointed as care-takers.
The learned Counsel for the Respondent-Plaintiffs submits that during the time of 1963 itself, the Plaintiffs were in possession of Hathu Janara Mahalingeshwara Mathada. Garadi and the property and the property was in possession of the Plaintiffs, who were appointed as care- takers. Hence they possessed a right over the property and accordingly the suit was filed. The courts below did not suffer want of jurisdiction since injunction could be granted by the civil court, the requirement u/s 41(h) of the Specific Relief Act is not mandatory. The efficacious remedy is only an option of the Plaintiff. Accordingly, they have approached the civil court. They have amended the suit in view of the fact that at the first instance, the suit was dismissed on the ground of invoking Section 92 of PC and thereafter it was restored back. In the interregnum, the present Appellant filed O.S. No. 364/82 and obtained an injunction against the Plaintiffs and demolished a portion of Garadi. Hence the amendment made for mandatory injunction is also within the parameters of law. After the death of Plaintiffs 1 and 2, they have been substituted by bringing the other care takers.
In order to substantiate their right, they have been examined as PW-1 and PW-2 and documents have been marked as Ex. P1 to P12 namely, photostat copy of the registration, invitation card, Ex. P4 pamphlet, electric bills, certified copy of the trust deed, demand notice by KEB which show the Plaintiffs'' right over the suit property.
I have heard both the sides.
This Court framed the following substantial question of law on 6.3.2007.
Whether the courts below are justified in granting a decree for mandatory injunction against the rightful owner of the property solely on the ground that demolition took place after filing the suit?
My answer to the above point is in favour of the Defendant-Appellant for the following reasons:
It is undisputed fact that as per Ex. P6 the subject matter of the suit property is a private property earlier. The owner of the property decided to transfer the property by forming the trust deed as per Ex. P6 dated 8.2.1963. This Garadi where the Plaintiffs say that they are the care-takers was part and parcel of the trust. After the trust was formed it became the property of the Trust. The Plaintiffs in Para-4 of the plaint claim that they are the care-takers of the Garadi. It is not coming out in the plaint as to who appointed them as care-takers. The proceedings of the trust or provision made in the trust deed is not the basis for the right that is claimed by the Plaintiffs. The legal maxim Ibu Jus Ib Remedium i.e., unless a person establishes his right, he cannot seek a remedy.
Secondly u/s 41(h) of the Specific Relief Act, when efficacious remedy is provided, an injunction cannot be granted by the civil court. Section 92 of CPC contemplates that in respect of property of Public Charity Trust, where prayer is made for a direction to remove or to deliver possession of any trust property, they have to file a suit before jurisdictional civil court. That is an efficacious remedy that has to be invoked by the Plaintiffs. Though it is an efficacious remedy and option to the Plaintiff, at least the Plaintiffs should have explained how this Section 92 CPC could not be availed, or how it could not be an efficacious remedy. In that view of the matter, the Suit should have been dismissed by the courts u/s 41(h) of the Specific Relief Act.
The suit was filed originally for injunction. Thereafter demolition was taken place within the trust, property by virtue of the injunction granted in O.S. No. 364/82, the suit was amended for mandatory injunction. As it is already discussed, u/s 92 of Code of Civil Procedure, when demolition or delivery of possession in respect of the trust property is sought Section 92 is the answer and not the relief for injunction
The trial court in the first instance dismissed the suit on the ground of non-invoking Section 92 of Code of Civil Procedure. Thereafter, it came to be restored by filing appeal before the first appellate court. In the meanwhile Appellant herein obtained injunction order in O.S. No. 364/82 and by virtue of the said order, a demolition has taken place. It is submitted that O.S. No. 364/82 was dismissed for default.
I have examined the evidence and also materials placed. The trial court and first appellate court proceeded on the basis that the care-takers have got a right. But the courts below have not considered the specific provisions under the Specific Relief Act and also Code of Civil Procedure. In the circumstances, the impugned judgment and decree passed by the courts below are liable to be set aside.
Accordingly, appeal is allowed. The substantial question of law is answered in favour of the Appellant. The suit filed by the Respondents stands dismissed.