When a decision can be said to be perverse
A decision or order of the Court does not become perverse by merely giving it a name as perverse. The higher Court will have to see whether the trial Court has wilfully disregarded any material pleadings and consciously violated any Rule of Law or procedure — If an inferior Court passes an order which suffers from infirmities, the Court is not required to interfere if a just result is brought about — A moral right cannot be equal to a legal right unless the legal right is established in accordance with law by a party claiming it
(1995) ILR(Karnataka) 22 : (1995) 4 KantLJ 519
KARNATAKA HIGH COURT
( Before : M.M. Mirdhe, J )
SRI SRI UTTARADHIMATH — Appellant
SRI SRI RAGHAVENDRASWAMY MATH — Respondent
C.R.P. No.1018 of 1994
Decided on : 29-11-1994
Civil Procedure Code, 1908 (CPC) – Order 39 Rule 1, Order 39 Rule 2, Section 115
Civil Procedure Code, 1908 (CPC) — Sections 115, Order 39 Rule 1, Order 39 Rule 2 —
Uttar Pradesh Co-operative Federation Ltd. Vs. Sunder Brothers of Delhi, AIR 1967 SC 249 : (1966) SCR 215 Supp
Johri Singh Vs. Sukh Pal Singh and Others, AIR 1989 SC 2073 : (1991) 1 BC 84 : (1989) 3 JT 582 : (1989) 96 PLR 617 : (1989) 2 SCALE 518 : (1989) 4 SCC 403 : (1989) 1 SCR 17 Supp
Counsel for Appearing Parties
H.B. Datar, for Jayavittal Rao Kolar, for the Appellant; S.G. Sundaraswamy, Senior Advocate, for the Respondent
1. This Civil Revision Petition is filed by the petitioner who was the plaintiff in the trial Court against the order dated 10.12.1993 passed by the Assistant Sessions Judge, Koppal, in M.A.No. 8 of 1993 allowing the appeal and setting aside the order dated 30.3.1993 passed by the Munsiff, Koppal, in O.S. No. 193 of 1992 allowing I.A.Nos. II and III filed by the petitioner under Order 39 Rules 1 and 2 C.P.C.
2. After hearing both sides, the Revision Petition is admitted. Learned Counsel for the petitioner Sri H.B. Datar and the learned Counsel for the respondent Sri S.G. Sundaraswamy submitted that in view of the fact that the Aradhana is to take place on 1st, 2nd and 3rd December, 1994, the Revision Petition itself may be heard. In view of this submission made by the learned Counsel for both sides, I have heard this Petition on merits.
3. The petitioner has filed a suit against the respondent for permanent injunction restraining the respondent from interfering with the possession and enjoyment of the plaintiff of the land called “Nava Vrindavana Gaddi” bearing Sy.No. 192 situated at Anegundi village in Gangavathi Taluk. It also filed I.A.No. II for temporary injunction to restrain the respondent from interfering with the performance of Aradhana of Sri H.H. Vagesh Teertharu to be held on the particular dates in April 1992 and also on future respective dates till the disposal of the suit I.A.No. III was filed by the petitioner praying for temporary injunction to restrain the respondent from entering upon the land known as “Nava Vrindavana Gaddi”, and from obstructing or interfering in any manner with the peaceful performance of Aradhana of Sri H.H. Padmanabha Teertharu by the plaintiff on the particular dates mentioned in the I.A. in November, 1992 and also on future respective dates as contained in Panchanga of the relevant years till the disposal of the suit. After perusing the material placed before it and hearing both sides, the Munsiff, Koppal, to whom the case was transferred, allowed I.A.Nos. II and III issuing a temporary injunction against the respondent to restrain them from performing the annual Aradhana of Sri H.H. Vageesh Teertharu, Sri H.H. Padmanabha Teertharu, Sri H.H. Kavindra Teertharu in that particular year as well as on the dates of annual Aradhana of Sri H.H. Padmanabha Teertharu, Sri H.H. Vageesh Teertharu and Sri H.H. Kavindra Teertharu, in every year by the plaintiff, in the suit Nava Vrindavana Gaddi bearing Sy.No. 192 of Anegundi village, till the disposal of the suit. The respondent was aggrieved by this order and hence it preferred Miscellaneous Appeal No. 8 of 1993 and this appeal came to be heard by the Assistant Sessions Judge, Koppal, and he allowed that Appeal and set aside the order passed by the Munsiff, Koppal, on I.A.Nos. II and III and directed both the petitioner and the respondent to perform Aradhanas of Sri H.H. Padmanabha Teertharu, Sri H.H. Vageesh Teertharu and Sri H.H. Kavindra Teertharu on the relevant dates in the manner indicated by him. The impugned order directs that the petitioner Mutt to perform the Aradhanas for the first day and upto 12 noon of the second day and the respondent Mutt to perform the Aradhanas of the said saints from 12-15 p.m. on the second day till the closure of the third day. It is this order that is challenged by the petitioner in this Revision Petition.
4. The learned Counsel for the respondent submitted that the exercise of the powers vested in the High Court u/s 115 C.P.C. is discretionary and the High Court is not bound to interfere in the exercise of its power u/s 115 C.P.C. He relied on Johri Singh Vs. Sukh Pal Singh and Others, wherein the Supreme Court has held that the High Court has jurisdiction to interfere with the order of the lower Court if the Court had no jurisdiction to make the order it has made or it has acted in breach of any provision of law or committed any error or procedure and which was material and may have affected the ultimate decision. The Supreme Court has also held that if neither of these conditions was met the High Court has no power to interfere, however it may have differed from the conclusion of the lower Court on question of fact and law: He also relied on Uttar Pradesh Co-operative Federation Ltd. Vs. Sunder Brothers of Delhi, wherein the Supreme Court has held as follows:-
“As is often said, it is ordinarily not open to the appellate Court to substitute its own exercise of discretion for that of the trial Judge; but if it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate Court to interfere with the trial Court’s exercise of discretion.”
The point to be noted here is that the Supreme Court has dealt with the scope of the appeal u/s 34 of the Arbitration Act and not the scope of Revision u/s 115 C.P.C.
5. Another Ruling that is relied upon by the learned Counsel for the petitioner is H.S. SIDDAPPA v. LAKSHMAMMA AND ANR 3. AIR 1965 Mys 313 wherein this Court has held as follows:-
“Where the order of a subordinate Court, has brought about a just result and where the setting aside of the order would bring about an unjust result the High Court would not exercise its discretion u/s 115 C.P.C. and interfere with such order, even though the order suffers from an illegality or irregularity.”
6. The trial Court allowed I.A.Nos. II and III filed by the petitioner after taking into consideration the contention of both sides and the material placed by both sides in support of their contentions. The lower appellate Court has framed issue No. 1 which is as follows:-
“Whether the order passed by the learned Munsiff is perverse or capricious or passed by ignoring relevant facts?”
The lower appellate Court has held that the order passed by the learned Munsiff is perverse and set aside the same.
7. In THUNGA BAI AND ORS. v. VISHALAKSHI HEGGADTHI AND ANR 4. 1974(2) KLJ 484 this Court had an occasion to indicate as to when a decision can be said to be perverse. It has held in that Ruling that: “a decision can be said to be perverse when the material pleadings are wilfully disregarded or when there is some conscious violation of the rule of law or of procedure on the part of the subordinate Court.” A decision or order of the Court does not become perverse by merely giving it a name as perverse. The higher Court will have to see whether the trial Court has wilfully disregarded any material pleadings and consciously violated any Rule of Law or procedure. A perusal of the order of the lower appellate Court discloses that the said Court has failed to examine the order of the trial Court from this angle. What is the scope in appeal or interference with the order passed by the trial Court either granting or refusing temporary injunction is considered in RANGAMMA v. KRISHNAPPA 5. 1968 (1) Mys.LJ. 552, wherein this Court has held as follows:-
“Granting or refusal of temporary injunction rests on the sound exercise of discretion by the Court. Such exercise of discretion cannot be lightly interfered with by the appellate Court, unless it is shown that such exercise of discretion is unreasonable or capricious. That a different view was possible on the facts and circumstances of the case by itself will not be sufficient to interfere with the order.”
Similarly in LAKSHMINARASIMHIAH AND ORS. v. YALAKKI GOWDA 6. 1965(1) Mys.L.J. 370 this Court has considered the scope of the Appeal from the order of the trial Judge granting or refusing temporary injunction and this Court has held as follows:-
“An appeal lies from the order of a trial Judge granting or refusing to grant an interim injunction, but what the Court of appeal has to consider is simply whether or not the Judge who dealt with the matter has properly exercised the discretion which he undoubtedly possesses. The appellate. Judge is not to approach the case as if he were the trial Judge.”
A perusal of the order passed by the Assistant Sessions Judge in appeal and the order of the trial Court granting I.As. filed by the petitioner shows that the appellate Court which had the jurisdiction to assess the legality or otherwise of the orders passed by the trial Court has exercised its jurisdiction with material irregularity in the sense that instead of examining the merits of the order in the light of the above quoted principles, he seems to have gone on some reasons which are not sustainable in law to allow the appeal. In order to see as to how the Assistant Sessions Judge, Koppal has proceeded in the matter, it is proper to quote some of his observations here. At one place, the Assistant Sessions Judge observed as follows:-
“I have already pointed out that mere performance of aradhana at this stage cannot be considered as a strong evidence to prove exclusive right to perform aradhana. At this stage, it cannot be said that mere non-performance of aradhana is an evidence of there being no right in favour of defendant Mutt to perform aradhana. This distinction has got to be borne in mind since both the Mutts propagate the Madhva philosophy and the disputed vrindavanas pertain to the saints who propagated the same philosophy. Under the circumstances, I am constrained to hold that the reasonings given by the learned Munsiff are perverse and the learned Munsiff has lost sight of the scope case put forth by the parties.”
The Assistant Sessions Judge held the order of the Munsiff to be perverse not by examining his reasonings with reference to the material on record, but altogether on different consideration that both the parties are the propagators of Madhva philosophy and, therefore, the performance by one party or non-performance by another party cannot be a ground to hold that the respondent has no right to perform the Aradhanas. While dealing with the contention of the respondent that these Vrindhavanas are endowments and while considering the statement made by the petitioner in Writ Petition Nos. 16975, 16991 and 17108 of 1987, the lower appellate Court observes as follows: –
“Relying on this observation of the Hon’ble High Court, Sri Ramachar, the learned advocate, contends before me that the defendant Mutt cannot contend that the Vrindhavanas are endowments. This contention cannot be accepted for the simple reason that the parties are not debarred from raising a contention that the Vrindhavanas are the endowments in this suit merely because they have failed to raise such a contention before the Hon’ble High Court in the said Writ Petitions.”
8. In KP. PAPAIAH SETTY v. M. PADMANABHA SETTY 7. 1965(2) MLJ 598, this Court has held as follows:-
“A subordinate Court acts with material irregularity when it gives decision ignoring a ruling of the High Court. Where a subordinate Court decides a matter contrary to the law laid down by the High Court, it acts without jurisdiction and the High Court has jurisdiction to interfere with the order in revision.”
In this case, the Assistant Sessions Judge has not properly interpreted the stand taken by the parties in the said Writ Petitions before the High Court. It amounts to acting with material irregularity. The learned Assistant Sessions Judge observed with respect to orders passed by the High Court regarding the interim arrangement for performing of Aradhana in this way:
“The orders passed by the Hon’ble High Court in various writs show that the defendant Mutt has also performed the aradhanas of the disputed Vrindhavanas.”
The Assistant Sessions Judge has not cared to read the orders of the High Court carefully and fully. He has referred to them in a very slip shod manner, if he were to peruse the orders passed by the High Court making interim arrangement for performance of Aradhana, he would not have failed to note that the High Court had made it clear that the interim arrangement cannot be taken as a precedent and the Civil Court will have to decide the matter whether at the final stage or interim stage without being influenced by the Interim arrangement made by the Court. Referring to the admission of the Peetadipathi of Raghavendra Swamy Mutt in a suit between the plaintiff and Vysaraya Mutt for permanent injunction wherein Peethadipathi of Raghavendra Swamy Mutt as defendant-1 has stated that he has not visited Padmanabha Teerthara Aradhana, the Assistant Sessions Judge observed that D.W.1 has ‘specifically stated in his examination-in-chief that Aradhana of Padmanabha Teertharu is performed by all the three Mutts. He was expected to assess the effect and impact of the admission given by D.W.1. Instead of that, he has tried to gloss it over by quoting what D.W.1 has stated in the examination-in-chief. Even his discussion on the documents produced by the petitioner in this case in support of his contentions is slip shod and not proper. The basis of the order passed by the Assistant Sessions Judge is that both the Mutts follow Madhva philosophy and, therefore, the performance of the Aradhana by the petitioner or non-performance of the Aradhana by the respondent cannot be a ground to infer that there is no right in favour of the defendant Mutt to perform Aradhana. I have quoted his specific words above. The Assistant Sessions Judge was required to see whether the findings recorded by the trial Court that the respondent Mutt had no legal right to perform Aradhana prima facie was supported by the material on record. Instead of that, he has tried to equate the moral right if any of the respondent to perform Aradhanas with the legal right claimed by it. In view of these infirmities which I have pointed out above, this is a, fit case for scrutiny of the judgment of the lower appellate Court u/s 115 C.P.C. I am aware of the Ruling of this Court quoted above, that if an inferior Court passes an order which suffers from infirmities, the Court is not required to interfere if a just result is brought about. But, in this case, the Assistant Sessions Judge has totally missed the point in controversy and passed the impugned order on the basis that the defendants have also got right to perform Aradhana on the ground that they are also followers of Madhva philosophy. He has confused the moral right that the respondent may have, with the legal right that it is claiming. A moral right cannot be equal to a legal right unless the legal right is established in accordance with law by a party claiming it.
9. the petitioner’s case is that it is the owner of Nava Vrindhavana Gaddi situated in Sy.No. 192 of Anegundi village as it has been purchased by it on 26.3.1960. It cannot be disputed in this case that the petitioner is the owner of Sy.No. 192 wherein these disputed Vrindhavanas of three Samadhies are situated. It is not disputed in this case that there are in all 9 Vrindhavanas. The dispute is regarding the performance of the annual Aradhanas of Sri H.H. Padmanabha Teertharu, Sri H.H. Vageesh Teertharu and Sri H.H. Kavindra Teertharu. It cannot be disputed that these Vrindhavanas are situated in Sy.No. 192 of Anegundi village. The petitioner’s title and possession over this property is established by the decree in O.S. No. 65/1/59-60 to which the respondent was a party. The judgment and decree have been confirmed by the High. Court and they have become final and conclusive. In view of this position, it will have to be held that the petitioner is the owner of Sy.No. 192 wherein these 9 Vrindhavanas including the three disputed Vrindhavanas are situated. In fact the suit schedule property is known as Nava Vrindhavana Gaddi.
10. The learned Counsel for the respondent contended that the property involved in O.S. No. 65/1/59-60 holding that the petitioner is the owner of the said Survey Number is only in respect of 14 acres whereas the disputed Vrindhavanas of the three Samadhies are situated beyond the said area of 14 acres. The respondent has filed his objections to the I.As. In its objections, it has not taken up any such contention that the disputed Vrindhavanas are not situated in the property which was the subject matter of O.S. No. 65/1/59-60. Even both the Courts below have proceeded on the assumption that these Vrindhavanas in respect of which dispute is raised by the respondent are situated in the Nava Vrindhavana Gaddi situated in Sy.No. 192 of Anegundi village which was the subject matter of the suit of title decided finally and in favour of the petitioner. Therefore, the contention now raised by the learned Counsel for the respondent that the disputed Vrindhavanas are not situated within Sy.No. 192 in respect of which the title of the petitioner has been upheld in the suit referred to above cannot be accepted. In view of the fact that the petitioner has title to Sy.No. 192 wherein this Nava Vrindhavana Gaddi is situated containing the three Vrindhavanas in respect of which there is a dispute for performance of Aradhana, it will have to be held that the petitioner is prima facie the owner and in possession of the said property. When a person is the owner and in possession of the said property, he has got a right to enjoy it and exclude others from its enjoyment unless the parties claiming some rights by easement, by lost grant or by any other mode of law prove its claim to exercise any such rights by it. In view of the fact that the petitioners have proved their title to Sy.No. 192 wherein “Nava Vrindhavana Gaddi is situated wherein the Vrindhavanas of Sri H.H. Padmanabha Teertharu, Sri H.H. Vageesh Teertharu and Sri H.H. Kavindra Teertharu are situated”, prima facie it will have to be held that it has got a right to exclude others from coming to those Vrindhavanas without its specific permission. The respondents are also contending that the said Vrindhavanas are endowment properties. In the Law relating to Hindu and Mahomedan Endowments, the learned Author in Chapter VII, Second Edition, 1918, has held as follows:-
“On the other hand, the land may not have been constituted as an endowment. The donor may have granted the right to enter upon his land and do certain things, as, for instance, to burn the Holi, to place the tazia, or to bury the dead. In all these cases the land is not constituted as an endowment, but the public or others interested have the right to do certain things upon the land and nothing more. Where no specific grant can be proved, but the public or others interested are using the land for a certain purpose for a long period of time though on specific occasions, or are exercising for a considerable period the right, which they claim (viz., of burning the Holi or placing the tazia & c), then either a lost grant may be inferred to do those things or a customary right may be said to have been established.”
11. The contention that these Vrindhavanas are endowments have not been raised in the first instance in the appeal in the lower Court, But the trial Court permitted that question to be raised as pure question of law overlooking the fact that it cannot be pure question of law as it will be a mixed question of law and fact. Moreover, there being no basis such a question of law could not have been raised by the respondent. For the first time, the respondent seems to have taken a contention that these are endowments by giving an application to the Deputy Commissioner and the Deputy Commissioner passed an order for the first time in the year 1984 directing the Aradhanas to be performed by both the petitioner and the respondent. The learned Counsel for the respondent relied on an undertaking given by the Agent and Power of Attorney holder of the petitioner to abide by that order. It is to be noted that the undertaking was given subsequent to the order passed by the Deputy Commissioner in 1984 and he had made it clear in the undertaking that the undertaking was given without prejudice to the rights of the petitioner. That order came to be challenged before the Commissioner for Religious and Charitable Endowments in Karnataka, Bangalore, who allowed the appeal preferred by the petitioner and set aside the order passed by the Deputy Commissioner and holding that Uttaradhi Mutt has got a right to perform Aradhana of H.H. Sri Padmanabha Teertharu on the relevant dates, These orders were the subject matter of W.P.Nos. 16975, 16991 and 17108 of 1987. It is significant to note that those Writ Petitions came to be allowed and the contentions of both sides were left open. It is ordered that the parties were at liberty to establish their right of performing of Aradhana of H.H. Sri Padmanabha Teertharu in a competent Court of law. In para 5 of its Judgment, this Court has observed as follows:-
“it is not in dispute nor it is the case of any of the parties, that Navabrindhavana Gadde in question is an institution coming under the purview of the Regulations.”
This observation of the High Court in those Writ Petitions goes to disclose that even the respondent had at that stage conceded that Vrindhavana Gaddi is not an institution coming under the regulation of the Endowments Act. It appears, subsequently, the Tahsildar passed some orders which the petitioner has challenged in Writ Petition No. 22996 of 1992. That Writ Petition is still pending. The net result of these proceedings is that there is no finding of any competent Court that these three Vrindhavanas are endowments or endowment properties and there is no material placed by the defendant to show prima facie that the defendants have got any customary right or right by lost grant to perform the Aradhanas of Sri H.H. Padmanabha Teertharu, Sri H.H. Vageesh Teertharu and Sri H.H. Kavindra Teertharu. Therefore, the lower appellant Court was not justified in passing the impugned order on the basis that the contention of the respondent claiming Vrindhavanas as endowments is not illusory. The basis of the judgment of the lower appellate Court is that because both the petitioner and the respondent are the followers of Madhva philosophy, both of them are entitled to perform the Aradhana. This cannot be a valid ground in view of the fact that the petitioner had filed a suit for permanent injunction against Vyasaraya Mutt, a Mutt following Madhva philosophy of religious thought and that suit has been decreed and the decree which came to be confirmed which is as follows:-
“The defendants (i.e. Vyasaraya Mutt) [added by me for clarification] subject to their right of performing Aradhanas of Brindavanas of the first defendant Mutt situated in Nava Brindavana Gaddi, are hereby permanently restrained from entering upon the suit schedule land – Nava Brindavana Gaddi, or interfering with the plaintiff’s possession thereof in any way and from installing any Krutika Brindavana of the defendant’s predecessor or other or from performing the Aradhana of the said predecessor on the dates of Aradhana in every year.”
These proceedings clearly disclose that even though Vyasaraya Mutt is the follower of Madhva philosophy of religious thought it has been restrained from performing the Aradhana except in respect of Aradhanas of their Vrindhavanas. If the reasoning of the respondent that it follows Madhva philosophy and therefore it should be permitted to perform the said Aradhana is to be accepted, such a decree as mentioned above could not have been passed against Vyasaraya Mutt following Madhva philosophy. Therefore, the lower appellate Court ought to have seen whether the respondent when it claims the right to perform Aradhana of the three Vrindhavanas has prima facie established its right either by custom or by lost grant to perform such Aradhanas in view of the fact that the petitioners have proved that they are the owners of the land where the said Vrindhavanas are situated and they have got every right to exclude other persons from corning to those Vrindhavanas unless some right is established by such persons.
12. The learned Counsel for the respondent submitted that the respondent has been performing Aradhanas atleast since 1987 and there is no reason to disturb such Aradhanas being performed as per the interim arrangement. The record discloses that only for the first time after passing of the order by the Deputy Commissioner in 1984, in view of the powers given to him under the Endowment Act, the respondent performed the Aradhanas to the said Vrindhavanas. But, that matter came up to the High Court in Writ Petition Nos. 16975, 16991 and 17108 of 1987 and this Court also made some interim arrangement. But while passing the final order, this Court has made it clear in its order in Writ Petition Nos. 16975, 16991 and 17108 of 1987 as follows:-
“(E) The interim order dated 18.11.1987 passed in these petitions regarding the performance of the Aradhana and also the direction issued in this order for performance of the Aradhana on 26th, 27th and 28th of November 1989 shall not be construed as a precedent and shall not be relied upon by the civil Court for deciding the rights of the parties whether finally or as an interim measure and the matter shall be considered afresh on the merits of the respective claims of the parties without reference to these orders.”
Therefore, it is made clear that the performance of Aradhana by the respondent under this interim arrangement cannot clothe it with any legal right. The Court has made it clear that it shall not be construed as a precedent and the Civil Court while deciding the matter finally or as an interim measure will have to consider afresh the claims of the respective parties without reference to these Orders. Therefore even if the respondents have performed Aradhana for some period from 1984, it cannot give it any right since there was interim arrangement and it was made very clear that it shall not be construed as precedent.
13. It is not disputed in this case that the suit land No. 192 is surrounded on all sides by Tungabhadra river and the extent of the land has been reduced due to the inundation of the soil by the river. It cannot also be disputed that this property has been purchased by the petitioner under a registered Sale Deed dated 26.3.1966 and since then it is the owner and possessor of the said property. The judgment and decree in O.S. No. 65/1/59-60 of the Munsiff Court, Gangavathi, which came to be confirmed by this Court shows that the petitioner has been declared owner of the suit land and the respondent and Vyasaraya Mutt were parties to the suit and their claim for joint owners for the land is negatived. Even though the respondent and Vyasaraya Mutt got their names entered in the suit land, a decree in the suit negatived their claim setting right the Record of Rights. The Vrindavan is situated in Sy.No. 192. The petitioner has no objection for the performance of Aradhanas at some Vrindavanas by the respondent except the Vrindhavanas of Sri H.H. Padmanabha Teertharu, Sri H.H. Vageesh Teertharu and Sri H.H. Kavindra Teertharu. Exhibit P38 is the grant order in favour of Ragaveer Teertharu Devar of Anegundi Samsthana which was produced in O.S. No. 65/1/1992. It is executed by the Ruler of the land in the year Shaka 1368 in favour of the petitioner Mutt granting Sy.No. 112 to 114 for performing the Aradhana of Sri Padmanabha Teertharu, Kavindra Teertharu and Raghaveer Teertharu and it also mentions that H.H. Padmanabha Teertharu is the original Vrindhavan of the plaintiff Mutt, This document is a very important document which goes to show that this is the Vrindhavana of the petitioner Mutt and they have been performing Aradhanas since the beginning. It appears that there was some enquiry and after that enquiry the lands which appear to have been forfeited have also been restored to the petitioner Mutt. These records go to show that the Vrindhavanas of Sri H.H. Padmanabha Teertharu, Sri H.H. Vageesh Teetharu and Sri H.H. Kavindra Teertharu are the Vrindhavanas of the petitioner and they have been performing the Aradhanas in those Vrindhavanas, and even their right has been recognised by the Ruler of Anegundi.
14. The learned Counsel for the respondent contended that though the petitioner may be the owner of the land of the Vrindhavanas, its title cannot be equated to the right of worship and it has no authority to exclude the defendant, from coming to these Vrindhavanas, This argument would have been accepted if it had performed the Aradhanas to those Vrindhavanas at any time in the past. The record discloses that it performed Aradhanas only since 1984 and that too on some orders passed by the Deputy Commissioner and the interim arrangement made by the High Court and this Court has made it clear in its Order quoted above that this interim arrangement cannot be construed as precedent and the Civil Court while dealing with this matter either at the stage of final settlement or interim measure will have to decide the matter afresh without reference to this arrangement. If this incident of the respondent having performed the Aradhana under the interim arrangement is excluded from consideration, there is no record to show that the respondent has performed Aradhana to these Vrindhavanas at any time. Therefore, the respondent has failed to show prima facie that it has got any right to perform Aradhana to these Vrindhavanas. On the other hand, the petitioner whose title to the said property and his possession of the said property came to be established by the judgment in a suit between the petitioner and the respondent and Vyasaraya Mutt has got a right to exclude the respondent who has not established any right to perform Aradhana at the Vrindhavanas. It is also pertinent to note the admission of the Mathadipathi of Raghavendraswamy in a suit between the petitioner and that Mutt wherein he has deposed as D.W.1 admitting that he never performed the Aradhana of Sri H.H. Padmanabha Teertharu. It is also very pertinent to note that there is an injunction against Vyasaraya Mutt which follows the same Madhva philosophy of religious thought as the petitioner from interfering with the petitioner’s right to perform Aradhana to these Vrindhavanas. The learned Counsel for the respondent submitted that no loss or injustice will be caused if the respondent is also allowed to perform Aradhana on those dates along with the petitioner. The question is not permitting the respondent on any moral ground. The question is whether the respondent has prima facie established its right to perform Aradhana. The respondent has not acquired any easementary right or any other sort of it over the property where the Vrindhavanas are situated. No Court has decided yet that the said Vrindhavanas are endowment property. On the other hand, the respondent has stated in the Writ Petition before the High Court that the Vrindhavanas are not covered by any Regulation of the Endowment Act. The enquiry is still pending as to whether the Vrindhavanas are endowment properties. The respondent has not shown prima facie that it has got any customary right or right by lost grant to perform Aradharias to these Vrindhavanas. There is no record or material to infer that the respondent has performed Aradhana at any time to these Vrindhavanas prior to 1984 and its performance of Aradhana after 1984 was only under an interim arrangement. It cannot be construed as a precedent in view of the order of this Court quoted above. Therefore, the respondent cannot be permitted to perform Aradhana merely on the ground of its moral claim when it has failed to prove prima facie that it has got any legal right to perform Aradhana. When the petitioner has shown prima facie that it is the owner in possession of the land where the Vrindhavanas are situated and where the respondent has failed to show any prima facie right to perform Aradhana to these Vrindhavanas, it will have to be held that the balance of convenience is in favour of the petitioner and that irreparable injury will be caused to it if it allows any person who had no authority or right to perform Aradhana to come to the Vrindhavanas situated in its land and perform Aradhana. The hardship that the petitioner will be put cannot be compensated in terms of money as it is a question of its right to exclude the other persons from performing Aradhanas to the Vrindhavanas of its Mutt situated in its land. Therefore, the trial Court was justified in allowing I.A.Nos. II and III whereas the lower appellate Court was not justified in interfering in appeal with the orders passed by the trial Court since the said orders were passed on the proper appreciation and assessment of the material on record and the said orders cannot be said to be arbitrary, perverse or capricious. On the other hand, the order of the lower appellate Court appears to be perverse and arbitrary and it deserves to be set aside.
15. Hence I proceed to pass the following order:
The Revision Petition is allowed.
The order of the lower appellate Court is set aside and the order of the trial Court allowing I.A. Nos. II and III is restored. No order as to costs.