SRI GANGADHAR S/O FHAKIR GOANKAR v. SMT. SUMITRA W/O GANAPATI GOAKAR

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temple was situated in Sy. No.195/1 and the properties in Sy. No.196/4 were given possession and ownership of the temple. That the Laxman was physically weak and hence, his younger brother Ramchandra was given right to perform puja and religious rituals of the temple from time to time and this condition was during the lifetime of Ramchandra. After his demise, his two sons Ganapati Ramchandra Goankar⁶and Budhiwant Ramchandra Goankar⁷inherited the same and they are performing the said pujas and religious rituals. Since they died, defendant Nos.1 and 2 inherited the same and are performing pujas and rituals. That the record of rights of Sy.Nos.195/1 and 196/4 are jointly entered the names of the defendant Nos.1 and 2.

4. It is the further case of the plaintiff that defendant Nos.1 and 2 are destroying, damaging and cutting the well grown tress of mangoes, coconuts trees and the said suit land is not developed properly and not kept clean and the pujas are not being performed from time to time. It is the further case of the plaintiff that

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defendant No.1 illegally constructed a new house and a cattle shed in the suit temple land at Sy. No.195/1. That the plaintiff filed a complaint with the Tahsildar, Ankola and other authorities. However, no action was taken. That the defendants are violating the conditions stipulated in the Partition Deed. That the plaintiff has a right in the temple/suit properties and if the defendants have violated to perform the duties and rituals, the family members of the plaintiff have a right to revert back the family Endowment as per law. That the defendants intentionally violating the family Endowment Partition Deed conditions and using the Temple funds and property/ies for their own purpose. Hence, the plaintiff filed a suit for permanent injunction.

5. The defendants Nos.1 and 2 entered appearance and contested the case of the plaintiff. Defendant No.1 filed a written statement which was adopted by defendant No.2.

6. The relationship between the parties is admitted. It is further admitted that the family deity is

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situated in Sy. No.195/1. It is further admitted that the right of worship was entrusted to Ramchandra. However, defendants denied the conditions in the family Endowment Deed have been violated. The defendants specifically denied that they have constructed any house and a cattle shed in the suit or they cut down any trees. On the contrary, it is alleged that all the rituals have been performed regularly and the temple property is also been developed. It is further contended by the defendants that they are living in a house in Sy. No.195/9. Plaint averments have been denied in detail.

7. The Trial Court consequent to the pleadings of the parties framed the following issues:

"1.
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3. ;ಂಕ 03-10-1924 ?( ಆದ @ೕಂದA B*C ದ* D>  ಅದEF GHIದ ಎಂJೕKಂ ನ ನLದ

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8. The plaintiff examined himself as PW.1. Exs.P1 to P21 have been marked in evidence. Defendant No.2 examined herself as DW.1. Two witnesses have been examined as DWs.2 and 3. Exs.D1 to D17 have been marked in evidence. The Trial Court by judgment and decree dated 14.11.2019, dismissed the suit with cost. Being aggrieved, the plaintiff preferred R.A. No.38/2019. The defendants entered appearance in the said appeal and contested the same. The First Appellate Court framed the following points for consideration:

"1.Whether trial court has committed error in appreciating the spirit of partition deed dated 03/10/1924- Ex.P.3?

2. Whether trial court is justified in dismissing the suit holding that plaintiff has failed to prove that defendants have violated the conditions of Ex.P.3?

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3. Whether appellant has made out grounds to interfere with judgment and decree with the trial court?

4. What order? "

9. The First Appellate Court by judgment and decree dated 19.11.2021, dismissed the appeal with cost and affirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present Second Appeal is filed.

10. Learned counsel for the appellant vehemently contended that the Trial Court and the First Appellate Court have concurrently erred in holding that the conditions situated in the Partition Deed dated 03.10.1924 (Ex.P3) has not been violated. It is further contended that the evidence on record has not been properly appreciated. Hence, the learned counsel for the appellant seeks for allowing of the present appeal and granting of the relief sought for.

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11. The submissions of the learned counsel for the appellant has been considered and the material on record have been perused.

12. The Trial Court while considering issue No.1 has recorded the following points:

i. The two conditions in the Partition Deed - Ex.P3 are that Sy. No.195/1 shall not be mortgaged or alienated and if the said property is alienated or mortgaged, the other family members have a right to cancel the transaction and take back the properties; and another condition was that the suit properties should not be damaged and shall be maintained in good condition;

ii. There is no condition in Ex.P3 that there is a stipulation to the defendants not to construct in the properties;

iii. The defendants in the written statement has stated that there was an

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old house in the suit property which was in a dilapidated condition and for betterment of the family they renovated the same and not constructed a new house;

iv. PW.1 in his cross examination admitted the Partition Deed and also the two conditions in the said Deed. Having regard to the above two conditions, the question of constructing a house illegally by the defendants does not arise;

v. The plaintiff has failed to prove that the defendants have constructed a house and a cattle shed illegally;

13. The Trial Court while considering the issue No.2, with regard to cutting the trees has recorded a finding that except oral evidence of the plaintiff, no cogent evidence is produced to show that defendants have cut well grown trees. It is further recorded that that the plaintiff has not produced any photographs to show that

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trees were cut down. It is noticed that in Ex.P3, it is nowhere stated that the defendants should not cut the trees.

14. While considering the issue No.3, the Trial Court, noticing the statement made by PW.1 in his cross examination, recorded a finding that apart from two conditions mentioned in Ex.P3, no other conditions are mentioned.

15. While considering issue No.4, the Trial Court has recorded a finding that having regard to Exs.D2 and D5 i.e., the copies of the judgments in the other litigation between the parties, the plaintiff and his family members and ancestors are in one way or the other harassing the defendants to grab the properties which are allotted to the father-in-law of the defendants.

16. The First Appellate Court while adjudicating upon the points for consideration, has re-appreciated the oral and documentary evidence on record has held that the Partition Deed(Ex.P3) is admitted and there is also no dispute regarding the division of properties between

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Laxman and Ramchandra under Ex.P3. That it is further undisputed that Ramchandra performed all the pujas and rituals and after his demise his son Ganapati continued the same. That after their demise, the defendants No.1 and 2 are managing the affairs of the Temple and performing the pujas and other rituals. It has been further held that the defendants have never claimed the right over the suit properties. The admission of PW.1 in the cross examination has been noticed that there was no clause in Ex.P3 that farm house should not be constructed in the suit property. That the defendants and family members are not residing in the farm house situated in the suit property but they are residing in their houses in other landed properties.

17. The First Appellate Court has recorded a finding that the contentions of the plaintiff that the defendants have not been properly managing the affairs of the temple and have neglected and not performing the puja and other rituals of the temple as falsified by the admission on the part of PW.1. That the defendants have been performing pujas regularly and they perform special

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puja on every Monday and during New Moon and Navarathri.

18. It is forthcoming from the aforementioned that the Trial Court upon an adequate appreciation of the oral and documentary evidence on record, noticing the two conditions mentioned in Ex.P3 as noticed above, recorded a finding of fact that the said conditions are not violated. Further, it has been categorically held by the Trial Court that the plaintiff has failed to demonstrate that the defendants have violated any conditions and hence, dismissed the suit of the plaintiffs with cost. The First Appellate Court has adequately re-appreciated the oral and documentary evidence on record and has rightly dismissed the appeal filed by the plaintiff and affirmed the judgment and decree passed by the Trial Court. The appellants have failed to demonstrate that the concurrent findings of fact recorded by the Trial Court and the First Appellate Court are contrary to any specific material available on record.

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19. Hence, the appellant is failed in demonstrating that any substantial question of law arises for consideration in the above appeal. In view of the aforementioned, the present appeal is dismissed as being devoid of merit at the stage of admission itself.

Sd/-

JUDGE

BS

List No.: 1 Sl No.: 42