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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 28TH DAY OF SEPTEMBER 2012

BEFORE:

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

REGULAR FIRST APPEAL No.1248 OF 2003

BETWEEN:

1. Sri. V. Krishnamurthy,
Son of Venkatappa,
Major,
Aged about 45 years,
Residing at No.
3rd Main, 5th Cross,
Chinnayanapalya,
Bangalore – 560 030.

2. Sri. Anjaneyaswamy
Welfare Association,
Situated at No.
3rd Main, 5th Cross,
Chinnayanapalya,
Bangalore – 560 0030,
Represented by its
Secretary. …APPELLANTS

(By Shri. S.K.V.Chalapathy, Senior Advocate for Shri.

S.V.Srinivas, Advocate)
 2

AND:

Sri. Hanumantha Devaru Trust,

(A trust registered under the
Indian Trust Act) at No.13,
(old No.17) 3rd Cross,
Chinnayanapalya,
Bangalore – 560 030,
Represented by its Secretary. …RESPONDENT

(By Shri. B.Rudragowda, Advocate for Caveator / Respondent)

*****

This Regular First Appeal is filed under Section 96 of the

Code of Civil Procedure, 1908, against the judgement and decree
dated 18.8.2003 passed in O.S.No.238/2000 on the file of the VII
Additional City Civil Judge, Bangalore (CCH.No.19), decreeing
the suit for permanent injunction.

This Regular First Appeal having been heard and reserved

on 12.09.2012 and coming on for Pronouncement of Judgment
this day, the Court delivered the following:-

JUDGMENT

The present appeal is by the defendants. The case of the

plaintiff before the trial court was that it is a Trust registered under

the Indian Trust Act, 1882, constituted for purposes of

maintaining the deity and the temple of Shri Hanumantha Devaru

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and its properties and to serve the public at large and the devotees

offering worship at the temple, situated at Chinnayanapalya,

Bangalore. The Trustees are said to be family members claiming

under their ancestor, Chinnappa.

It is their claim that Chinnappa and late Munichinnappa

alias Motappa had constructed the temple of Shri Hanumanta

Devaru at their own cost and had endowed land measuring about

8 guntas in Survey No.17 of Chinnayanapalya for the benefit of

the deity and after their death, their family members including the

Trustees, were said to be managing the affairs of the temple over

the decades and they were ensuring daily poojas and special jatras

and had appointed archaks and other employees from time to time.

The plaintiff claimed that the temple was essentially a private

temple, where there is no bar for the public at large to participate

in the poojas and offer worship at the temple. In this regard, the

defendants were also permitted to participate in the poojas and

jatras at the temple. The plaintiff claimed that over the decades,
 4

there was no interference by any person, as it was common

knowledge that the plaintiff and their ancestors were the owners

and in management of the temple. However, a need was felt to

constitute a Trust and therefore, the plaintiff had come into being

in order to better safeguard the temple property and to protect the

same from miscreants and land grabbers. Consequently, the khata

of the temple property stands in the name of the Trust and has

been assessed to taxes by the local authority. (The property is

identified as No.13, III Main Road, Chinnayanapalya, Bangalore –

560 030, measuring east to west on the northern side 97 feet, on

the southern side 98 feet and north to south 82.6 feet.)

It was the plaintiff’s complaint that the defendants, who

cannot claim any right over the property, except to offer poojas

and to participate in the jatras held at the temple, had tried to

interfere with the functioning of the plaintiff and its Trustees and

it is alleged that the first defendant, who has formed the second

defendant – Association is seeking to misrepresent to the general

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public at Chinnarayanapalya and its environs that the second

defendant –Association is managing the temple and its property

and has been raising funds on that pretext. The plaintiff declares

that the second defendant and the plaintiff are not the same and

have no connection with each other whatsoever and the second

defendant has nothing to do with the management of the

Hanumanta Devaru temple and its property.

It is alleged that in the year 1998, the first defendant had

tried to dispossess the plaintiff, while declaring that he is the

manager of the properties of the temple, through the second

defendant – Association. The Trustees of the plaintiff had filed a

suit against the first defendant for a permanent injunction

restraining him from interfering with the temple and its

management. An interim order of temporary injunction was

granted. However, the same was vacated for technical reasons, as

the suit was filed in the individual capacity of the Trustees. The

defendant, who had thereafter not persisted in his claim, over the
 6

temple, again sought to dispossess the plaintiff and had brought

his supporters and threatened the Trustees that he would

physically dispossess them from the property and keep them out

of the property. It is in that background that a suit was filed for an

injunction restraining the defendants or anyone, claiming under

them, from dispossessing the plaintiff from the suit properties.

2. The suit was contested and the plaint averments were

denied. The defendants claimed that the second defendant –

Association was formed in the year 1966 by the residents of

Chinnarayanapalya, with the object of maintaining Shri

Hanumanta Devaru and Maramma Temples as well as Ashwatha

Katte in Chinnarayanapalya. It was denied that the Association

was formed by the first defendant, but it was the first defendant’s

father Munichinnappa, who had formed the Association. The

first defendant, however, was the Secretary of the second

defendant – Association. It was denied that any funds of the

Association had been misappropriated and it is stated that one of

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the Trustees of the plaintiff is a member and an office-bearer of

the Association. It was asserted that there was no question of

interference by the defendants with the plaintiff as the defendants

were very much in possession and management of the temple,

though it was true that a civil suit in O.S.No.7762/1998 was filed

by the plaintiff, it was denied the order of temporary injunction

granted was vacated for technical reasons. There was no order of

injunction granted against the first defendant. The order of

temporary injunction granted was vacated after hearing the parties

and on a prima facie finding by the court that the Trustees were

not in possession and it was also held that the defendant was the

Secretary of the Anjaneya Swamy Welfare Association and the

Association was in active management of the temple and its

properties. The fact that the plaintiff had not chosen to produce a

copy of that order was clearly a deliberate suppression of that

finding of the court. It was vehemently denied that there was any

interference preceding the suit by the defendants. It was further

asserted that Hanumanta Devaru temple was an ancient temple,

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which had existed for almost 200 years and it was the residents

of Chinnarayanapalya who had maintained the temple. When the

need was felt for more orderly management of the temple, the

second defendant - Association was formed under the Karnataka

Societies Registration Act, 1960 and it was a duly registered

body. Its accounts were regularly audited. The temple and its

appurtenant land stands in the name of the deity and the plaintiff

and its Trustees were actively attempting to take over the

ownership of the temple since 10 years preceding the suit. It was

alleged that in the year 1989, the Trustees had colluded with the

archaks, who were then employed at the temple and made an

attempt to take over the management. The said archak had

issued a legal notice to the Association, which was only a futile

attempt to discredit the Association. The archak had left the

temple voluntarily. The Trustees had therefore made yet another

attempt in the year 1994-95 by creating the so-called trust. Such

attempts were continued and in the year 1997 again, an attempt

was made to interfere with the management by the defendant –

 9

Association, which lead to the Association issuing a public

notice declaring that it was in actual management of the temple

and its properties and that the plaintiff was making an attempt to

take over the management. It is that which drove the plaintiff to

use power and influence on the Corporation to have the khata

effected in the name of the Trust, though all along, it stood in the

name of the deity and the defendants were compelled to make a

complaint to the Commissioner, Bruhat Bangalore Mahanagara

Palike (Hereinafter referred to as ' the BBMP', for brevity). The

complaint was supported by the residents of Chinnarayanapalya

declaring that the Association was, in fact, managing the temple.

Ironically, the son of one of the Trustees one M.Narayana Murthy

had joined the defendants in filing an affidavit before the

Commissioner, BBMP, to declare that it was the second defendant

– Association, which was in management of the temple. There

were tenants in occupation of portions of the temple property, who

had also sworn to affidavits in support of the defendant –

Association . The archaks, who performed pooja at the temple,

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had also sworn to such affidavits. The defendant has produced

bills towards the purchase of vessels and pooja articles from time

to time. The defendant had produced bills towards supply of

electricity to the premises. The Association had renovated the

temple apart from constructing Maramma temple, which was

about 100 metres away from the Hanumanta Devaru temple. The

Association was also instrumental in performing several functions

at these temples and had sought to produce material in support

thereof. It was denied that the temple was private property and

the defendants asserted that the property belonged to the deity and

the deity is worshipped by the residents of Chinnarayanapalya

and was, in that sense, public property over which the plaintiff

could not assert any private right and therefore, sought dismissal

of the suit.

3. On the basis of the above contentions, the court below

had framed the following issues:

1. Whether there exists Trust Committee

named in the plaint?

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2. Whether temple and its property are the trust

properties as claimed by plaintiff trust?

3. Whether plaintiff trust is entitled for the

relief of injunction against defendants?

The court below has answered issues 1, 2 and 3 in the

affirmative in favour of the plaintiff and has decreed the suit,

while clarifying that the temple is to be construed as a public

temple and members of the general public, including the first

defendant and members of defendant no.2, would have right of

darshan and of performing pooja in the temple. It is that which is

under challenge in the present appeal.

4. The learned Senior Advocate Shri S.K.V.Chalapathy

appearing for the Counsel for the appellants would submit that a

preliminary objection as to the very maintainability of the suit is

that the plaintiff was said to be a private Trust and it is settled law

that any suit by a Trust can be presented only by all the Trustees

together and a sole trustee, even if authorised by others, cannot

 12

represent them and this aspect of the matter has been completely

overlooked by the court below and therefore, the appeal would

have to be allowed on that ground alone, without entering upon

the merits of the case. Even on merits, the very conduct of the

Trustees of the plaintiff-Trust disentitle the Trust to bring any suit

at all. Admittedly, the Trust had filed a suit earlier, in

O.S.No.7762/1998 before the same court, against the first

defendant on identical allegations and had sought the relief of

permanent injunction, but the suit was dismissed as not pressed.

The dismissal was unconditional. In that, the plaintiff did not seek

to obtain leave of the court to withdraw the suit with permission to

prefer a fresh suit. Hence, there is a clear bar under Order XXIII

Rule 1 of the Code of Civil Procedure, 1908, to bring an identical

suit on identical allegations. The finding of the court below that

there is an admission by the defendants that the temple property

belonged to the ancestors of the plaintiff is erroneous and is not

borne out by the record. The averment in the written statement to

the effect that even if the plaintiff’s ancestors had endowed the
 13

land to the temple or the deity, it was not open for the Trustees of

the plaintiff – Trust to reclaim the land. This does not amount to

an admission that the plaintiff’s ancestors had indeed endowed the

land to the deity and that the Trustees of the present plaintiff-Trust

would continue to exercise control and management of the

property by virtue of the same. It is further pointed out by the

learned Senior Advocate that the judgment does not analyse the

evidence on record, but has merely proceeded to list the respective

documents filed by the parties at length and therefore, there is

non-consideration of the material on record in arriving at cryptic

findings by the court below. There is a specific reference to

Exhibit D.63 by the court below, which is a paper publication

issued by the defendants in a daily newspaper ‘Sanjevani’ and the

finding of the court below that there is an admission that the

property was left behind by Munichinnappa @ Motappa and late

Munithirumalappa @ Thammaiah is not reflected in the said

publication. As may be seen, there is only a reference to the said

persons having donated certain land. This did not imply that the
 14

temple belonged to the said persons. The further declaration in

the paper publication that the second defendant-Association is in

possession of the temple and is in management of the temple

property. On the other hand, the plaintiff having placed reliance

on Exhibit P.2, a deed of partition between Munichinnappa and

others, does not indicate that the temple in question belonged to

their family, on other hand, it merely recites that a portion of land

which is adjoining Hanumanta devaru temple, is being endowed to

the temple. Therefore, it is inexplicable that the court below has

arrived at a finding that there is admission by the defendants as to

the temple belonging to the ancestors of the plaintiff or that the

material evidence on record establish the same. The court below

has negated the voluminous material produced by the defendants

to establish possession and continued management of the temple

over the years. The claim of the plaintiffs that they had been

managing the properties since the year 1936 and even before that

period, is belied by the fact that the Trust itself has come into

existence only in the year 1995. There is no material produced by

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the plaintiffs to establish that they had incurred expenditure in

maintaining the temple over the years, which should be

forthcoming with any management. There is no material

produced of having carried out any annual repairs or maintenance

of the temple. There is no material produced to show the monthly

expenses being met by the plaintiffs nor have the plaintiffs

produced any material of holding religious functions and poojas

in the temple. In particular, attention is drawn to the second

defendant-Association having collected donations for renovation

of the temple and renovation work having been carried out, as

evidenced by Exhibits D.20, D.21 and D.23 and for having

purchased the building material as per Exhibits- D.24 and D.25.

There are other materials, such as, the pamphlets issued from time

to time and messages received from institutions such as,

Adichunchanagiri Math addressed to the Association and of

various functions conducted by the defendants at the temple.

There is even an admission by the plaintiff’s witness that during

renovation of the temple the deity was kept in a godown

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constructed by the Association. It is asserted that the finding of

the court below that the defendants are not in exclusive possession

of the suit schedule property is in the face of abundant material to

indicate otherwise. In any event, the plaintiff cannot claim to be

in exclusive possession at all, especially, as there is no material

produced in that regard, except to indicate that the khata in respect

of the property has been transferred in the name of the Trust. It

stood in the name of the deity over the years and even that order

of transfer and khata was a conditional one and subject to

objections as evident from Exhibit P.10. For all of the above

reasons, the plaintiff was not entitled to equitable relief of

injunction especially, as there was suppression of the filing of the

earlier suit and failure of the plaintiff to have obtained any relief

in that suit. Since a prima facie finding on the application for

temporary injunction was to the effect that the plaintiff did not

prove possession as on the date of the suit.

It is further contended that it is a well established principle

as reiterated in the case of Anathula Sudhakar vs. P.Buchi Reddy,

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AIR 2008 SC 2033, by the apex court, that where the plaintiff is in

possession, but his title to the property is in dispute or under a

cloud or whether the defendant asserts title there to and there is

also threat of dispossession from the defendant, the plaintiff will

have to sue for declaration of title and consequential relief of

injunction. Therefore, in the present case on hand, as there was a

serious dispute of the claim of the plaintiffs to title to the property

and the circumstance that the court below also thought it fit to

frame an issue in that regard, it was appropriate for the court

below to have relegated the plaintiff to a comprehensive suit for

declaration and injunction and ought not to have embarked on a

slip-shod inquiry as to title in a suit for bare injunction and

therefore, would submit that the appeal be allowed and the suit be

dismissed.

5. While the learned Counsel for the respondents would

submit that insofar as the legal bar to the maintainability of the

suit, in that, all the trustees had not joined in filing the suit and
 18

therefore, was not maintainable was never a contention raised

before the court below. There was no issue framed in this regard.

However, by way of abundant caution, he would submit that

since such a contention is raised in the present appeal, to avoid

any controversy, an application in I.A.I/2012 is filed, seeking to

implead all the Trustees, except three, two of whom, are dead and

one is said to be aged and terminally ill and unable to respond to

their request to join them, who is sought to be arraigned as the

proposed defendant and they have filed a joint affidavit in support

of the application. The Counsel would submit that any such lapse

cannot be considered as fatal to the suit. It is only as a matter of

form and though a necessary formality, it can certainly be

permitted to be rectified even at this stage, as there is no conflict

of interest or dispute as amongst the Trustees of their intention to

file the suit, seeking to protect the temple property. Insofar as the

facts of the case are concerned, the learned counsel would point

out that even according to the defendants, the temple is an ancient

temple. The contention that it belongs to the people of

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Chinnayanapalya or that it is public property is not evidenced by

any material on record. On the other hand, there was material

available to denote that the land had been endowed by the

ancestors of the plaintiffs-trustees. It is in that context, the court

below has addressed the aspect of which of the parties would be

entitled to claim management and administration of the suit

properties.

6. From the material evidence produced by the parties, the

court below has come to a judicious decision that the plaintiffs are

in a better position to claim management over the properties,

given the evidence on record that the property endowed to the

temple did at one time belong to the ancestors of the Trustees of

the plaintiff and that though the temple and its properties stood in

the name of the deity, khata has been transferred in favour of the

plaintiff at a later point of time and that by itself did not confer

title on the plaintiff, as the temple has been declared as a public

temple. The court below has only held that the plaintiff-Trust
 20

could claim management over the suit properties. While at the

same time, the court below has also taken note of the concern of

the defendants, as representing an Association of Members, who

are interested in worshipping at the temple and performing poojas

from continuing to do so. Therefore, the learned Counsel for the

plaintiffs would submit that the defendants seeking to claim an

exclusive right of management over the properties has been

negated by the court below. Whereas it has conferred the same

on the plaintiffs on being satisfied as to its bona fides. It is further

contended that insofar as the objection that an earlier suit having

been withdrawn – the later suit was hit by Order XIII Rule 1 CPC,

is concerned it is asserted that a suit for injunction is filed on a

fresh course of action having accrued and hence was not a bar.

Hence, the learned counsel would submit that the reasoning of the

court below is justified and that there is no warrant for

interference by this court.

7. In the light of the above rival contentions, insofar as the

legal contention as to whether the suit by a Trust could have been

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brought by one of its Trustees may be answered by reference to

the following authorities.

In Abdul Kayum vs. Alibhai, AIR 1963 SC 309, the apex

Court has expounded as follows :-

“(16) There cannot, in our opinion, be any doubt

about the correctness of the legal position that trustees
cannot transfer their duties, functions & powers to some
other body of men and create them trustees in their own
place unless this is clearly permitted by the trust deed, or
agreed to by the entire body of beneficiaries. A person
who is appointed a trustee is not bound to accept the trust;
but having once entered upon the trust he cannot renounce
the duties and liabilities except with the permission of the
Court or with the consent of the beneficiaries or by the
authority of the trust deed itself. Nor can a trustee
delegate his office or any of his functions except in some
specified cases. The rules against renunciation of the trust
by a trustee and against delegation of his functions by a
trustee are embodied, in respect of trust to which the
Indian Trusts Act applies, in Ss. 46 and 47 of that Act.
These sections run thus:-

“46. A trustee who has accepted the

trust cannot afterwards renounce it except (a)
with the permission of a principal Civil Court of
Original Jurisdiction, or (b) if the beneficiary is
 22

competent to contract, with his consent, or (c)

by virtue of a special power in the instrument of
trust.

47. A trustee cannot delegate his office

or any of his duties either to a co-trustee or to a
stranger, unless (a) the instrument of trust so
provides, or (b) the delegation is in the regular
course of business or (c) the delegation is
necessary, or (d) the beneficiary, being
competent to contract, consents to the
delegation.

(17) It is true that S. 1 of the Indian Trusts Act makes

provisions of the Act inapplicable to public or private
religious or charitable endowments; and so, these sections
may not in terms apply to the trust now in question. These
sections however embody nothing more or less than the
principles which have been applied to all trusts in all
countries. The principle of the rule against delegation
with which we are concerned in the present case, is clear :
a fiduciary relationship having been created, it is against
the interests of society in general that such relationship
should be allowed to be terminated unilaterally. That is
why the law does not permit delegation by a trustee of his
functions, except in cases of necessity or with the consent
of the beneficiary or the authority of the trust deed itself;
apart from delegation “in the regular course of business,
that is, all such functions which a prudent man of business
would ordinarily delegate in connection with his own
affairs.”
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Further, in the case of Atmaram Ranchhodbhai vs.

Gulamhusein Gulam Mohiyaddin, AIR 1973 Gujarat 113, in

answering the questions, whether some only out of several co-

trustees could effectively determine a tenancy by giving notice to

quit and secondly, whether a suit to evict a tenant could be filed

by one or more co-trustees, without joining other co-trustees in

the suit, was answered by a Full Bench of the Gujarat High Court

as follows :-

“ 2. The determination of these two questions must

depend on the true nature and character of the office of
co-trustees. The classic statement of the law describing
what is the true nature and character of the office of co-
trustees is to be found in the following passage from
Lewin on Trusts, (Sixteenth Edition), page 181:-

“In the case of co-trustees of a private trust, the

office is a joint one. Where the administration of the
trust is vested in co-trustees, they all form as it were but
one collective trustee and therefore must execute the
duties of the office in their joint capacity. Sometimes,
one of several trustees is spoken of as the acting
trustees, but the Court knows of no such distinction: all
who accept the office are in the eyes of the law acting
 24

trustees. If any one refuses or is incapable to join, it is

not competent for the others to proceed without him,
and, if for any reason they are unable to appoint a new
trustee in his place under Section 36(1) of the Act, the
administration of the trust must devolve upon the Court.
However, the act of one trustee done with the sanction
and approval of a co-trustee may be regarded as the act
of both, though such sanction or approval must be
strictly proved.”

The Judicial Committee of the Privy Council pointed

out in Man Mohan Das v. Janki Prasad, AIR 1945 PC
23, that this was a correct statement of law applicable
in England and that the same doctrine applies in India
also. The trustees must act jointly in executing the
duties of their office unless the instrument of trust
otherwise provides. The instrument of trust may
provide that one or more trustees shall be managing
trustees entitled to act on behalf of the trust and where
such provision is made, those who are empowered to
act as managing trustees would be entitled to execute
the duties of the office without the concurrence of the
other co-trustees. But in the absence of such provision,
all co-trustees must join in the execution of the duties of
the office.”
 25

It was held that a trustee cannot delegate any of the duties,

functions and powers of his office to his co-trustees or to anyone

else, as that would be contrary to his obligation under the Trust.

And after referring to Abdul Kayum , supra, and quoting from the

same, the Gujarat High Court further held that the observations

therein showed that whether the Trust is a private Trust governed

by the Indian Trusts Act or is a public charitable or religious

Trust, a trustee cannot delegate any of his duties, functions and

powers to a co-trustee or to any other person, unless the

instrument of trust so provides or the delegation is necessary or

the beneficiaries competent to contract consent to the delegation

or the delegation is in the regular course of business and that those

were the only four exceptional cases in which delegation is

permissible and save in those exceptional cases, the trustees

cannot, even by a unanimous resolution, authorise one of

themselves, to act as a managing trustee for executing its

functions and powers relating to the Trust and every one of them

must join in the execution of such duties, functions and powers.

 26

8. Finally, the Supreme Court declared that unless the

instrument of trust otherwise provides, all co-trustees must join in

filing a suit to recover possession of the property from the tenant

after determination of the lease. No one single co-trustee, even he

be a Managing Trustee unanimously chosen by the co-trustees,

can maintain such a suit against the tenant without joining other

co-trustees. All co-trustees must be joined in the suit and if any

one or more of them are unwilling to be joined in the suit as

plaintiffs or for some reason or the other, it is not possible to join

them as plaintiffs, they must be impleaded as defendants, so that

all co-trustees are before the court.

A Division Bench of this court in Jain Swetambara Murthi

Pujaka Samastha vs, Waman Dattatreya Pukale, AIR 1979

Kar.111, has taken a view that where proceedings are instituted

by one co-owner alone amongst the body of co-owners and where

all the co-owners are necessary to be joined as parties and where

also the omission so to do, is considered fatal to the proceedings,

it is not impermissible for the Court, in appropriate cases, to

 27

permit the impleading of the other co-owners in exercise of its

powers under Order I Rule 10, sub-rule (2) of the Code of Civil

Procedure, 1908 (Hereinafter referred to as ' the CPC' for brevity)

and that the position, in principle, should not be very different in

the case of Trustees as well. The decision of the apex Court in

Kanakarathanammal vs. V.S.Loganatha Mudaliar, AIR 1965 SC

271, was referred to in that regard. The apex court in the said

decision has sounded a word of caution to the effect that even in

such cases, though the court could direct the necessary parties to

be joined, but this should be done at the stage of trial and that too,

without prejudice to the plea of the parties as to limitation.

9. Therefore, given the above state of the law, the question

whether the application filed by the respondents could be allowed

even at this stage in this appeal, could be answered in the

affirmative, for the reason that the contention as to non-joinder

was not raised and was not present to the mind of the trial court

and there was no issue in that regard. There was, however, a

 28

lacuna which has gone unnoticed. It is only in this appeal that a

ground has been raised on that account and it is for that reason

that the application seeking to implead all the Trustees is sought

to be filed. In response to the same, the counsel for the appellants

has filed a memo to declare that the appellants does not admit the

facts stated in the affidavit filed in support of the application

under Order I Rule 10 of the CPC and that the statements made in

the affidavit are factually incorrect. The appellants, therefore do

not seek to take a plea that such impleading is barred by limitation

and that allowing such an application would take away any

vested right in the defendants. Since the applicant – trustees have

declared on oath that they fully support the suit brought by one of

the co-trustees, there is no bar to implead them even at this stage.

Accordingly, the said application is allowed and the applicants

shall be described as co-plaintiffs and as respondents in the

present appeal. This judgment shall reflect the same.

Insofar as the court having found in favour of the plaintiffs

in injuncting the defendants from seeking to claim management of

 29

the temple and its properties, is on the basis of relative merit of

the documents filed in support of their respective cases, by the

plaintiffs and the defendants. It is incorrect on the part of the

appellants to contend that title has been conferred on the

plaintiffs. The Trial Court has declared the temple to be a public

temple. Even if the Trust is shown as the khatedar, it can only act

for the benefit of the deity and it cannot be construed that there is

a declaration of title in favour of the plaintiff. The issue framed

by the court below is apparently to decide on the question of

possession and the temple and its properties are not private

properties of the Trustees and it would continue to belong to the

deity.

Insofar as the contention that the court below has

erroneously found that the defendants had admitted the

ownership of the temple properties by their ancestors is merely

incidental and an opinion formed on the basis of the material

evidence. Even if such observation is eschewed , there is other

material available to disclose that the plaintiffs’ ancestors were

 30

indeed involved in endowing the land to the temple. Therefore,

this cannot be a ground to set aside the judgment.

Insofar as the contention that the court below has not

analysed or discussed the evidence, is also not tenable. As seen

from the body of the judgment, the court below has applied its

mind to the evidence of several witnesses as also the nature of

documents that were produced, which sufficiently established

that the court below had applied its mind. The further contention

that when there is cloud on the title of the plaintiff, the parties

must be relegated to a comprehensive civil suit, may not apply in

the present case on hand, as the question of declaring title in

favour of the Trust or Trustees does not arise. It is the case of

both the plaintiffs and the defendants that the temple and its

properties belonged to the deity and it is only to identify the

person or persons who were in possession liable to pay revenue

that khata may have been transferred in favour of the Trust. That

is one of the facts which has tilted the case in favour of the

plaintiffs. That insofar as the bar to the suit under Order XIII
 31

Rule 1 CPC is concerned, the suit for permanent injunction has

been filed on a fresh cause of action and was hence not barred.

Therefore, there is no infirmity in the judgment of the court

below. The appeal is dismissed.

Sd/-
JUDGE

nv