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Judgment
B.S. Patil
In this Regular Second Appeal the judgment and decree dated 12.03.2007 passed by the learned Additional Civil Judge (Sr. Dn.), Raichur, in R.A. No. 3/2007, thereby dismissing the appeal filed by the appellant - defendants is called in question. The Lower Appellate Court has confirmed the judgment and decree passed by the learned Additional Civil Judge (Jr. Dn.), Raichur, on 27.11.2006 in O.S. No. 119/2004 decreeing the suit filed by the plaintiff - respondent herein and granting permanent injunction restraining the defendants from interfering with the performance of pooja by the plaintiff at Lord Panchamukhi Pranadevaru Temple and Yerkalamma Temples situated at Ganadhal Village in Raichur Taluk and District.
Plaintiff - respondent herein filed the suit contending interalia that the two temples were situated in Sy. No. 67 which belonged to the ancestors of the plaintiff and that it was the plaintiff who was rendering service as poojary since his childhood. It was alleged that the defendants tried to interfere with the performance of pooja of the temples. The defendants contended in their defence that they were performing the duties of pooja along with the plaintiff at Lord Panchamukhi Pranadevaru and Yerkalamma Temples at all times since the time of their forefathers and that the plaintiff has falsely and dishonestly projected himself as the sole poojary of the temples. They further contended that they were exclusively managing the pooja activities of Yerkalamma Temple since decades. Based on the pleadings, the Trial Court framed necessary issues casting the burden on the plaintiff to prove the performance of pooja in the two temples exclusively and as to whether there was any illegal interference by the defendants.
The plaintiff in support of his case examined three witnesses, out of whom P.Ws. 1 & 2 are none other than the sons of the plaintiff. Exs. P1 to P10 were produced and marked for the plaintiff. The defendants in support of their case examined two witnesses - D.Ws. 1 & 2. Exs. D1 to D11 were produced and marked for the defendants. On consideration of the evidence on record, the Trial Court has found in paragraph 18 of the judgment that the plaintiff was successful in establishing that his ancestors and thereafter the plaintiff was exclusively performing pooja of the temple namely Lord Panchamukhi Pranadevaru Temple. However, as regards Yerkalamma Temple in paragraph - 19 of the judgment, the Trial Court referring to the evidence of P.W. 3 has found that the plaintiff had failed to establish that he was performing the pooja of Yerkalamma temple exclusively. However, while granting the relief, the Trial Court has decreed the suit for injunction permanently restraining the defendants from interfering with the performance of pooja in both the temples by the plaintiff. This was called in question by the defendants by preferring regular appeal before the learned Additional Civil Judge (Sr. Dn.), Raichur.
Learned Appellate Judge framed the following points for consideration:
Whether the defendants/appellants are justified in showing that the judgment and decree passed by the learned Addl. Civil Judge (Jr. Dn.), Raichur in O.S. No. 119/2004 is perverse, illegal and contrary to the law and facts? If so, same is liable to be interfered with?" This point is answered in the negative and the appeal is dismissed.
At the time of admission of this appeal, the following substantial questions of law have been framed:
i) Whether the trial court was right in granting the decree of permanent injunction against the defendants/appellants herein in respect of pooja to be performed in Yerakalamma temple, though it was admitted by PW3 that the plaintiff was not exclusively performing pooja in the said temple and that the defendants were also performing the pooja?
ii) Whether the appellate court has erred in not considering the effect of admission made by PW3 and the-reasons assigned by the trial court in this regard?
I have heard the learned counsel" for both parties on the substantial questions raised. They have taken me through the judgments of both the Courts below. As already adverted to above, the Trial Court has found that the plaintiff was successful in establishing that he was exclusively performing the pooja of Lord Panchamukhi Pranadevaru Temple. It has further found that the plaintiff had failed to establish that he was exclusively performing the pooja of Yerkalamma Temple. Having recorded such a finding, the Trial Court, though right and justified in decreeing the suit for permanent injunction in respect of Panchamukhi Pranadevaru Temple, was not justified in decreeing the suit in toto restraining the appellants herein from performing the pooja in Yerkalamma Temple because as per its finding, performance of pooja in Yerkalamma Temple exclusively by the plaintiff was not proved.
The Appellate Court has not considered this aspect of the matter while confirming the judgment of the Trial Court in its entirety. It has no doubt again dealt in detail regarding the findings recorded by the Trial Court with regard to Panchamukhi Pranadevaru Temple and has concurred with the findings of the Trial Court holding that the plaintiff had establish that he was exclusively performing; the pooja of the said temple. To this extent, the appellants before this Court are not in a position to demonstrate that there is any illegality in this finding. Therefore, this Court has rightly not raised any substantial question with regard to the concurrent findings recorded in this regard.
However, as regards Yerkalamma Temple, the Lower Appellate Court ought to have considered the legality or correctness of the decree of injunction granted and the reasons assigned by the Trial Court. The Lower Appellate Court has failed to discharge its duties inasmuch as it has not considered the correctness of the decree passed in this regard by reappreciating the evidence on record and by examining the evidence of P.W.3 which is taken by the Trial Court as an admission against the plaintiffs case. Therefore, the second substantial question of law framed has to be answered in favour of the appellants and against the respondent. The nature of the findings recorded by both the Courts below has introduced confusion with regard to the pooja to be performed in the temple. If the plaintiff and the defendants are both performing the pooja in Yerkalamma Temple, then there cannot be a decree of injunction against the defendants, nor can the plaintiff be prevented from performing the pooja by the defendants. As regards the correctness of the findings of the Trial Court, the Lower Appellate Court has to examine the same which it has not done as per the impugned judgment.
As there is no defence finding and as the conclusion reached and the findings recorded by the Trial Court are not consistent with each other and the Appellate Court has not made any endeavour to examine the correctness of this aspect of the finding, the matter requires to be remitted to the Appellate Court for fresh consideration only with regard to the relief of injunction sought by the plaintiff in respect of performance of pooja in Yerkalamma Temple. Hence, the following order is passed:
i) This appeal is partly allowed.
ii) The judgment and decree dated 12.03.2007 passed by the Lower Appellate Court in R.A. No. 3/2007 to the extent it dismisses the appeal with regard to the permanent injunction granted by the Trial Court restraining the defendants from performing the pooja in Yerkalamma Temple is set aside.
iii) The matter is remitted for fresh consideration to the Lower Appellate Court only with regard to this aspect.
iv) As far as the permanent injunction granted by both the Courts below in respect of Panchamukhi Pranadevaru temple is concerned, the same is left undisturbed.