IN THE HIGH COURT OF KARNATAKA AT BANGALORE. DATED THIS THE 23 rd DAY OF JULY 2013 BEFORE: THE HON BLE MR. JUSTICE ANAND BYRAREDDY

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 23 rd DAY OF JULY 2013 BEFORE: THE HON BLE MR. JUSTICE ANAND BYRAREDDY BETWEEN: REGULAR FIRST APPEAL No.2021 OF Chandrashekar.A, Son of Sri. B.C. Ankappa, Aged about 33 years, Residing at 407, 6 th Cross, Bellandur Post, Bangalore Smt. Hemavathi, Daughter of Sri. B.C.Ankappa, Wife of Munireddy.V, Aged about 39 years, Residing at 251, 2 nd Cross, Opp: PCMIL, Begur Road, Bommanahalli, Bangalore Sri. P. Shivakumar, Son of Papanna, Aged about 30 years, Residing at No.75,

2 2 6 th Cross, Bellandur Post, Bangalore Smt. Nanda, Daughter of Sri. Papanna, Aged about 40 years, Residing at No.199, Yellappa Reddy, Dodda Thogur, Electronic City, Begur Post, Bangalore Smt. Prabhavathi, Wife of Murali Kumar, Daughter of Sri. Papanna, Aged about 36 years, Residing at Murali Kumar, No.453/13, 6 th 1 st Main Road, Kengeri Upanagara, Kengeri Post, Bangalore Smt. Shobha, Wife of L. Venkatesh Reddy, Daughter of Sri. Papanna, Aged about 34 years, Residing at No.39/24, Thimma Reddy Road, Appareddy Palya, Indiranagar Post, Bangalore APPELLANTS (By Shri. K. Sree Rangarajan, Advocate)

3 3 AND: 1. Sri. Narayanappa, Son of Muniswamy, Sri. Balaji Fancy and Gift Centre, Nagesh Reddy Building, A.P.R. Kalayana Mantapa Cross, Begur Main Road, Bangalore P. Ravindra, Late Son of Pile Reddy B.M., Aged about 40 years, Residing at No.84/1, Bellandur Village and Post, Varthur Hobli, Bangalore Smt. Papri Rai, Wife of Sumith Kumar Rai, 4. Sri. Sumith Kumar Rai, Son of A.B.Rao, Respondent Nos. 3 and 4 are Resident at No.M-4 Aishwarya, 6 th Main, 11 th Cross, LIC Colony, Sector-X, Jeevan Bhim Nagar, Bangalore RESPONDENTS (By Shri. Sreevatsa, Senior Advocate for Shri. M.A. Sebastian, Advocate for Caveator / Respondent Nos.2, 3 and 4 Respondent No. 1 served)

4 4 This Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908, against the judgement and Orders dated passed in O.S.No.9603/2006 on the file of the XLIII Additional City Civil and Sessions Judge, CCH-44, Bangalore, dismissing the suit for declaration and permanent injunction. This Regular First Appeal having been heard and reserved on and coming on for pronouncement of Judgment this day, the Court delivered the following:- J U D G M E N T This is an appeal by the plaintiffs appeal. The parties are referred to by their rank before the trial court for the sake of convenience. 2. It was the case of the plaintiffs that their grand parents, Chinnappa and Muniyamma had two sons, Ankappa and Papanna. Plaintiffs no.1 and 2 are the children of Ankappa and Plaintiffs no.3 to 6 are the children of Papanna. It is stated that Chinnappa having died, Muniyamma along with Ankappa and Papanna had executed a registered general power of attorney, dated in favour of one Narayanappa,

5 5 defendant no.1, authorizing him to deal with land belonging to them, bearing survey no.80/1 of Bellandur village, Varthur Hobli, Bangalore South Taluk, measuring about 1 acre 34 guntas. The suit schedule property is a portion of the said land duly converted for residential use, measuring about Square Feet. It is stated that Muniyamma, one of the executants of the said power of attorney had expired on Notwithstanding the death of Muniyamma, it is stated that defendant no.1, the power of attorney holder of Muniyamma and others had executed a registered sale deed dated in favour of one P. Ravindra, defendant no. 2, in respect of the suit schedule property. Ravindra in turn, had executed a sale dated , in favour of Defendants no. 3 and 4. It is alleged by the plaintiffs, that with the death of Muniyamma, the power of attorney was a nullity and hence the subsequent alienation of the property, in favour of defendant no.2, on the strength of the said power of attorney was void.

6 6 Consequently, the further transaction in favour of Defendants 3 and 4 was also void. Hence, when defendants 3 and 4 had made attempts to exercise physical possession over the suit property, on the strength of the above said sale deed, the plaintiffs had prevented them. There were exchange of legal notices thereafter as regards the claim of the said defendants. In the light of the claim set up by the defendants 3 and 4, the suit was filed. The plaintiffs sought a declaration that the sale deed in favour of Defendant no.2 by defendant no.1 and the further sale deed dated , in favour of defendants 3 and 4 were null and void. For cancellation of the said sale deeds and for a permanent injunction restraining the defendants from interfering with the suit property. 3. Defendants 3 and 4 filed their written statement and contested the suit. It was asserted that they had purchased the suit schedule property along with other property, totally measuring 2673 Square Feet under the sale deed dated The

7 7 revenue records reflected the ownership of the defendants and that they were paying property taxes in respect of the same. It was claimed that the power of attorney in favour of Narayanappa, executed by Muniyamma and others was one coupled with interest and was not rendered a nullity on the death of Muniyamma. It was claimed that Muniyamma and others had executed an agreement of sale dated in respect of the land in Sy.no.80/1 of Bellandur village, measuring 1 acre 34 guntas, in favour of one Pillappa, for a sale consideration of Rs.1.95 lakh and had received a sum of Rs.1.90 lakh, in advance. The power of attorney, in question, had been simultaneously executed by the proposed vendors and duly registered. Narayanappa was said to be a nominee of Pillappa. It was claimed that Narayanappa and Pillappa had jointly developed the suit property along with other properties and had formed a residential layout and sold various sites to third parties and the defendants 3 and 4 were one of the purchasers. It is said that the plaintiffs themselves had admitted

8 8 the above fact, in another suit in O.S.No.8580 of 2006, pending before the very court. Defendants 3 and 4 were arraigned as defendants 6 and 7 therein. The plaintiffs predecessors had given up their possession on the execution of the power of attorney and the agreement of sale in favour of Narayanappa and Pillappa, respectively. On the sale in favour of Ravindra, who had also purchased an adjoining extent of land measuring about 1380 square feet., from one B.S.Kalappa, who is not a party to the suit, under a sale deed dated , it is that consolidated extent 2673 square feet, covered under the above two sale deeds, that was said to have been sold to defendants 3 and 4 by defendant no.2. It was hence, claimed that the plaintiffs had no manner of right over the suit property. Defendant no.2 had adopted the written statement of defendants 3 and 4.

9 9 4. On the basis of the above pleadings, the court below had framed the following issues: 1. Do the plaintiffs prove that the first defendant Naryanappa had no right to execute the sale deed dated in favour of second defendant? 2. Do the plaintiffs prove that the sale deed dated executed by the first defendant in favour of 2 nd defendant and the sale deed dated executed by 2 nd defendant in favour of defendants 3 and 4 in respect of suit schedule property are to be cancelled? 3. Do the plaintiffs prove their possession over the suit schedule property? 4. Do the defendants 2 and 3 prove that the Power of Attorney executed in favour of Narayanappa was with interest and that Muniyamma and others received

10 10 valuable consideration from Pillappa as stated in para 5 of the written statement? 5. Do the defendants 2 to 4 prove that the first defendant Narayanappa was the nominee of Pillappa and that the Plaintiffs are aware of all the transactions as mentioned in para-5 of the written statement? 6. Do the defendants 2 to 4 prove that on of them i.e., defendant No.2 purchased another portion of land measuring 1380 Sq.ft. under registered sale deed dated from M.Kalappa who had either purchased that portion from Muniyamma and others represented by the first defendant? 7. Do the defendants 2 to 4 prove that the suit is barred with time? 8. Are the plaintiff entitled for reliefs? If so, what order or decree?

11 11 Additional Issue dated Whether the Court fee paid is proper? Additional Issues dated Whether plaintiffs prove that the sale deed dated is not binding on the plaintiffs to the extent of their claim in suit property? 2. Whether plaintiffs prove that the defendants are illegally interfering in their peaceful possession and enjoyment of schedule property? The court below answered Issues no.1 to 3,8 and additional issues 1 to 3 in the negative and held Issues no.4 to 7 in the affirmative and dismissed the suit. It is that which is under challenge in the present suit.

12 12 5. The learned counsel for the appellants, Shri. K.Shreerangarajan contends thus : The trial court has arrived at incorrect findings of fact. One reason for such erroneous reasoning is the glaring circumstance that 6 out of the 8 issues have been dealt with together, this having resulted in avoidable confusion, there is lack of clarity of thought. That the procedure adopted by the court below was clearly in violation of the mandatory requiring that findings shall be given in respect of each issue, with reasons therefore, separately. It is contended that the finding of the court below that the death of Muniyamma had not been established merely on the ground that her death certificate showed her name as Chikkamuniyamma and her husband was shown as Chinnappa, instead of Chinnappa Reddy. The reasoning was overly fastidious and has overlooked the fact that it was a plausible alternative name by which she was known- there was no reason, in any event, to ignore the name of Chinnappa.

13 13 It is contended that the court could not have found a consolidated contract for the parties by reading the power of attorney executed by Muniyamma and others along with the agreement of sale executed by Muniyamma and others, the parties are not the same and the extent of property indicated in the documents is also not the same. That exercise of the court below was hence not justified. The further reasoning of the court below that Pillappa, in whose favour an agreement of sale had been executed by Muniyamma and others in the year 1994, had nominated Naryanappa to act in pursuance of the agreement, in his stead and under the power of attorney, was not established without the examination of Pillappa at the trial. This circumstance is further compounded by the alleged power of attorney holder acting in terms of an agreement executed nine years prior thereto, without the actual participation of the true owner, Muniyamma and others.

14 14 It is also inconsistent to contend that the agreement of the year 1994 was in force and valid and to execute a sale deed in respect of the property covered there under, without the completion of the 1994 transaction by the execution and registration of a sale deed in respect of the property, or in the absence of even a cancellation thereof. For all of the above reasons among other contentions, the learned counsel has sought the appeal be allowed. 6. On the other hand, the learned Senior Advocate, Shri S. Srivatsa, appearing for the learned counsel for the respondent contends thus : The suit was barred by limitation. The plaintiffs having sought for a prayer in respect of a sale deed dated , primarily, and consequentially also having made a prayer in respect of a sale deed dated , the suit was clearly barred by time as it was filed only as on Unless the sale deed

15 15 dated could be set aside, the deed dated could not be annulled. Secondly, the learned counsel would submit that there can be no doubt that the agreement of sale and the power of attorney executed and registered in the year 1994, was coupled with interest. There is reference to a registered agreement in the power of attorney, as on that date there was no other agreement executed by Muniyamma except the one mentioned. It is contended that in terms of Section 202 of the Indian Contract Act, 1872 (Hereinafter referred to as the IC Act, for brevity), when the agency is coupled with interest, especially, when the entire price had been paid, except for a nominal sum of Rs.5,000/-, which formed about 2.5% of the sale price, remaining to be paid - the agency was not capable of being terminated. It was not in fact terminated. It is also asserted that in terms of Section 208 of the IC Act, it cannot be said that immediately on the death of Muniyamma, the power of attorney executed by her is rendered a nullity. It is argued that

16 16 even if the power of attorney is assumed not to be coupled with interest, the agent is not precluded from acting under it when he has no notice of the death of Muniyamma. This intention under the Section is evident from Illustration (c) to Section 208. In the instant case on hand, there is no indication of the death of Muniyamma having been brought to the knowledge of the defendants or Narayanappa, prior to the sale transaction. It is further contended that the claim of the plaintiffs that they were in possession of the suit schedule property was seriously disputed. On the other hand, the physical possession exercised by defendants 3 and 4 was evidenced by ample documents and circumstances. The further controversy that the defendants had put up construction in violation of the court s order would certainly establish the possession of the defendants. Therefore, the suit filed with a prayer for a declaration of title without a prayer for possession was not maintainable.

17 17 7. In the light of the above rival contentions and the material on record, the judgment of the trial court is addressed for its correctness on facts and in law. The trial court has taken up most of the issues framed in the suit, together for consideration. This is, on the face of it, an exercise which should have been avoided. The whole object of framing issues is to keep the various points arising for decision separate and distinct and to lump them together in the judgment defeats the object and cannot but lead to confusion. However, it may be possible that having regard to the minor variation in the issues framed, when the issues were on the same aspect but stated differently, may have prompted the trial court to lump the issues together. The proper course was to have reframed the issues and jettisoned some, if the same were surplussage. Order XIV Rule 5 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the CPC, for brevity) provides as follows :

18 18 5. Power to amend and strike out issues:- (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2). The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced. It is generally noticed that the trial courts treat the issues which are once framed as being so sacrosanct and beyond alteration - to the extent that if one presiding officer has framed the issues in Kannada and the succeeding presiding officer who actually renders judgment in the suit, renders it in English, the issues are reproduced in Kannada, while the rest of the judgment is in English, apparently on an impression that even the slightest change, even translation, would in some manner create an imagined aberration and alter the course of the proceedings.

19 19 It is to be kept in view that Order XIV Rule 5 CPC confers a wide discretion on the court s power. In fact it is imperative to amend, strike out or reframe issues, as may be necessary to determine the real controversy between the parties, at any time before passing the decree. The emphasis therefore is on determination of the real controversy between the parties, which is the primary object of a trial. And it is to ensure that from a reading of the judgment it can be discerned as to what is the finding on a material point, of fact or law, on which the parties differ. Therefore, the irregularity committed by the trial court in the present case on hand, if viewed from the point of the controversies between the parties. The findings of the court below, though scattered through the judgment are still discernible and hence the departure from the statutory mandate can even be overlooked, having regard to the circumstances of this case.

20 20 It is not in dispute that there was an agreement of sale and a general power of attorney, both dated , simultaneously executed and registered by Muniyamma and her two sons, in favour of Pillappa and Narayanappa, respectively, in respect of the larger extent of land, of which the suit property was a portion. Those documents were not terminated or cancelled. It is however, contended that as Muniyamma died on , and as she was one of the joint executants of the general power of attorney, the agency stood extinguished with her death. A core issue was whether the registered transactions effected by the agent, acting under the said power of attorney, are void if the agency stood terminated by virtue of the death of Muniyamma, or whether the subsequent transactions could still be sustained on the premise that the agreement of sale read with the general power of attorney was intended to be coupled with an interest created in favour of the agent and hence were irrevocable, not withstanding the death of Muniyamma the same subsisted.

21 21 The next issue, on a determination of which, the controversy between the parties could be set at rest, was whether the challenge to the first controversial transaction, namely, the sale deed dated , executed by Narayanappa in favour of Sridhar, pertaining to a portion of the suit schedule property, was barred by limitation. The further question for determination is whether the suit filed only seeking declaratory reliefs was not maintainable, if there was no prayer for possession in the face of a strong dispute as to possession over the suit property. The above have been decided against the plaintiffs by the trial court. And this is capable of ascertainment from the reasons assigned in the impugned judgment. Therefore the trial court having violated the mandate of deciding each issue separately, does not result in a miscarriage of justice.

22 22 In the opinion of this court, in so far as the question whether the suit was barred by limitation is concerned, it is not disputed that there is a registered sale transaction executed in respect of the suit property dated Though a registered document, the trial court was not precluded from declaring that the document was void for the reasons canvassed by the plaintiffs. But the suit was apparently brought beyond three years, the period of limitation prescribed, from the date of the said transaction. The date of suit is shown as Further, it is only if the said transaction is voided that the subsequent transaction, namely the sale deed dated , could also be declared as void. It is also to be kept in view that a defence raised that the power of attorney continued to subsist even after the death of Muniyamma, was certainly a question that had to be determined for the court to arrive at a conclusion that the document impugned was void ab initio, hence the bar of limitation rendered that possibility impossible. Therefore the suit could have been dismissed on the ground of limitation alone.

23 23 Incidentally, even the assertion that the agreement of sale dated read with the power of attorney, executed and registered simultaneously, by Muniyamma and others could not be said to have created an agency coupled with interest that enabled the subsequent transactions notwithstanding the demise of Muniyamma, cannot also be accepted. The plain reading of the documents and the conduct of the parties, namely Pillappa the holder of the agreement of sale and Narayanappa, the power of attorney holder, having acted without any conflict, as between them, in proceeding to deal with the property concerned, for almost a decade and the plaintiffs having stood by without demur, for many years after they attained majority, before bringing the suit would certainly lend credence to the defence set up of the true intention of the parties. Even on an application of the law, it is seen that though Section 201 of the IC Act lays down that an agency is terminated by either the principal or agent dying, a reading of Section 208 of the IC Act however, would indicate that

24 24 such termination of authority is conditional. This is clear from a reading of the Section and illustration (c) to the said provision. The same is reproduced hereunder for ready reference: 208. When termination of agent' s authority takes effect as to agent, and as to third persons.- The termination of the authority of an agent does not, so far as regards the agent, take effect before it becomes known to him, or, so far as regards third persons, before it becomes known to them. Illustrations: (a) A directs B to sell goods for him, and agrees to give B five per cent commission on the price fetched by the goods. A afterwards, by letter, revoke B' s authority. B, after the letter is sent, but before he receives it, sells the goods for 100 rupees. The sale is binding on A, and B is entitled to five rupees as his commission. (b) A, at Madras, by letter, directs B to sell for him some cotton lying in a warehouse in Bombay, and afterwards, by letter, revokes his authority to sell, and directs B to send the cotton to Madras. B, after receiving the second letter, enters into a contract with C, who knows of the first letter, but not of the second, for the

25 25 sale to him of the cotton. C pays B the money, with which B absconds. C' s payment is good as against A. (c) A directs B, his agent, to pay certain money to C. A dies, and D takes out probate to his will. B, after A's death, but before hearing of it, pays the money to C. The payment is good as against D, the executor. (emphasis supplied) Therefore, in the absence of cogent evidence that the agent was acting upon the authority conferred on him, inspite of his knowledge of the demise of the principal, the acts of the agent cannot be held to be bad in law. Further, the plaintiffs had only sought declaratory reliefs in respect of the suit property. Under Section 34 of the Specific Relief Act, 1963 (Hereinafter referred to as the SR Act for brevity), a plaintiff must seek the relief of possession by amendment if the defendant has contested the plaintiff s claim of his exclusive possession. (See: Vinay Krishna v. Keshav Chandra, AIR 1993 SC 957) This is especially so in the present

26 26 case on hand when there circumstances evident that the defendants were exercising physical possession over the suit property. The appeal would hence fail for the above reasons and is accordingly dismissed. In so far as the application in IA.1 of 2012, seeking punishment of the respondents for disobedience of the order of temporary injunction is concerned, the same shall be assigned a separate case number as Miscellaneous proceedings and be listed for hearing in the usual course. Sd/- JUDGE nv*