IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 3 RD DAY OF APRIL 2013 BEFORE THE HON BLE MR.JUSTICE ARAVIND KUMAR R.F.A.NO.

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 3 RD DAY OF APRIL 2013 BEFORE THE HON BLE MR.JUSTICE ARAVIND KUMAR R.F.A.NO.937/2012 BETWEEN: 1. SMT.MUNIYAMMA, W/O LATE DORASWAMY REDDY, AGED ABOUT 60 YEARS, 2. T.SURENDRA REDDY, S/O LATE DORASWAMY REDDY, AGED ABOUT 31 YEARS...APPELLANTS R/AT NO.3, C/O D.H.NAGARAJ, 8TH CROSS, BRIYAND SQUARE, POLICE QUARTERS, MYSORE ROAD, BANGALORE (BY SRI. R.VIJAYAKUMAR, ADVOCATE,) AND: SRI K.TULASI RAMA REDDY, S/O PARADESI REDDY, AGED ABOUT 38 YEARS, R/AT NO.6, 1 ST CROSS ROAD, 5 TH MAIN ROAD, NANDAKUMAR LAYOUT AREHALLI VILLAGE, UTTARAHALLI HOBLI, BANGALORE RESPONDENT (BY SRI.V.VIJAYASHEKARA GOWDA, ADVOCATE)

2 2 THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF C.P.C AGAINST THE JUDGMENT AND DECREE DATED PASSED IN O.S NO.7686/2009 ON THE FILE OF THE 42 ND ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FOR PERMANENT INJUNCTION. THIS RFA COMING ON FOR ADMISSION ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U D G M E N T Defendants are in appeal questioning the correctness and legality of judgment and decree passed by the 42 nd Addl. City Civil and Sessions Judge, Bangalore dated in O.S. NO.7686/2009, whereunder suit filed by plaintiff for permanent injunction has been decreed. 2. By consent of learned Advocates appearing for the parties appeal is taken up for final disposal. Heard Sri.R.Vijakumar, learned counsel appearing for appellants and Sri. V. Vijayashekara Gowda, learned counsel appearing for respondent. 3. It is the contention of Sri.Vijaykumar, learned counsel appearing for the appellants that Trial Court erred in decreeing the suit and contends that Trial Court having come

3 3 to a conclusion that title of the parities could not be gone into in a suit for bare injunction, it has factually examined the genuineness of General Power of Attorney Exhibit P-1 and sale deed, Exhibit P-2 which were disputed documents and which is already the subject matter of consideration in a suit for declaration filed by the appellants in O.S.No.6142/2011 and as such, judgment and decree passed by Trial Court is erroneous. He would also elaborate his submission by contending that Trial Court ought to have held that defendants are in possession, when there was ample evidence to show that Khatha of the suit schedule properties still continues in the name of the original owner namely 1 st defendant and when the electricity bills also continue to reflect the name of 1 st defendant. He would further submit that judgment and decree passed by Trial Court that defendant should not interfere with the possession of plaintiff till disposal of suit O.S.No.6142/2011 is erroneous and it presupposes that plaintiff is in lawful possession and enjoyment of suit schedule property and same being contrary to record. He would also contend that Trial Court erred in not considering the fact that there was fraud committed by

4 4 plaintiff and his wife upon 1 st defendant namely they have created and concocted documents of title which has been completely ignored by Trial Court. As such he seeks for setting aside the judgment and decree passed by Trial Court. 4. Per contra Sri V.Vijayashekara Gowda, learned counsel appearing for respondent would support the judgment and decree passed by Trial Court and submits that on proper appreciation of evidence both oral and documentary, trial Court has decreed the suit and there is no error committed by Trial Court and as such he seeks for dismissal of the appeal. 5. Having heard the learned Advocates appearing for the parties and on perusal of judgment and decree passed by Trial Court, I am of the considered view that following points would arise for my consideration. (1) Whether there has been erroneous appreciation of evidence by Trial Court or non appreciation of material evidence available on record and thereby it has resulted in erroneous judgment and decree passed by Trial Court in O.S.No.7686/2009

5 5 dated calling for interference by this Court? (2) What order? 6. Facts in brief leading to filing of this appeal are crystalised as under: Plaintiff instituted a suit against defendants for perpetual injunction in respect of property bearing survey No.90, khatha No. 20/9, situated at Arehalli Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore, measuring East to West /2 feet and North to South 31 feet together with 14 square RCC building consisting of ground and first floor (hereinafter referred to as suit schedule property ). It was contended by the plaintiff that he is in lawful possession and enjoyment of suit schedule property, having purchased the same under a registered sale deed dated from defendant No.1 through GPA holder Smt.T.Kumari and suit schedule property originally belonged to Smt. Byamma and Sri. Gopala and they have sold through their Power of Attorney holder in favour of Smt.N.Sridevi, who in turn sold the said property in favour of Smt D. Aruna and said Smt D. Aruna in turn sold the property to 1 st defendant

6 6 Smt. Muniyamma. Said Smt. Muniyamma is said to have executed a Power of Attorney in favour of her daughter Smt.T.Kumari and by virtue of the same Smt.T.Kumari has sold the suit schedule property in favour of plaintiff under a sale deed dated which came to be duly registered and possession has been delivered and as such plaintiff claimed to have obtained khatha, paying taxes and is in possession and enjoyment of it and also claimed that he had let out a portion of suit property and receiving the rent. It was further contended that defendants have no right, interest and title over the suit schedule properties. It was further contended that on account of attempts made by defendants to dispossess the plaintiff from suit schedule properties, suit in question was filed and defendants had filed a false complaint against plaintiff with the jurisdictional police and on these grounds plaintiff sought for suit being decreed. 7. On suit summons being served defendants appeared and filed their written statement and denied the averments made in plaint. It was contended that plaintiff is not the owner of suit schedule property and he is not in possession of the same. It was contended that husband of 1 st

7 7 defendant and father of 2 nd defendant was working in Chittor Co-operative Sugars Ltd., Chittoor upto 2003 and he expired in the year 2003 and 1 st defendant received a sum of ` 3.5 lakhs to ` 4 lakhs towards death cum retiral benefits of her husband and as such she purchased the suit schedule property from Smt. D. Aruna and she is in lawful possession of the same. She further contended that plaintiff who is her son-in-law took signatures from her on blank papers and created a General Power Of Attorney in favour of his wife i.e., first defendant s daughter and created a sale deed in plaintiffs name through his wife, who is none other than the daughter of 1 st defendant. She contended that her daughter during her visit to the house had taken away the original documents and created a false General Power of Attorney and thereafter created sale deed in collusion with her husband and as such, she filed a complaint before the jurisdictional police and same is under investigation. It was further contended that she is the absolute owner of suit schedule property and plaintiff is not entitled for relief of injunction. All averments made in the plaint came to be denied.

8 8 8. On the basis of the pleadings of the parties, Trial Court formulated following issues for its adjudication: 1. Whether the plaintiff proves that he was in lawful possession of the suit schedule property as on the date of the suit? 2. Whether the plaintiff proves the alleged interference of the defendants? 3. Whether the plaintiff is entitled to the relief of permanent injunction? 4. What order or decree? 9. Plaintiff himself got examined as P.W.1 and produced 14 documents and got them marked as Exhibits P-1 to P-14. Defendant No.1 got herself examined as D.W.1 and produced 2 documents and got them marked as Exhibits D-1 to D On appreciation of oral and documentary evidence and after considering the pleadings and arguments advanced by both the parties, trial Court by its judgment and decree dated decreed the suit, which is now questioned in the present appeal by the defendants.

9 9 RE POINT NO.1: 11. Plaintiff is none other than the son-in-law of 1 st defendant. Trial Court at paragraph 9 has rightly observed that in a suit for perpetual injunction, issue regarding title to the property cannot be gone into. At this juncture let me examine as to whether Trial Court dredged upon to examine the title of parties. Trial court while considering the rival contentions at para 10 has made following observations: Looking to the documentary evidence of the plaintiff, Ex.P1 is the original GPA said to have been executed by defendant No.1 in the name of her own daughter Smt.T.Kumari, who is the wife of the plaintiff on in respect of the suit schedule property. Ex.P1 has been executed and attested before the notary public. Advocate has identified defendant No.1 as executant of GPA in the name of her daughter. In respect of the GPA there is a presumption under the Evidence Act under Section 85, which reads as follows: Presumption as to powers-of-attorney:- The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice Consul, or representative of the Central Government, was so executed and authenticated. 12. Perusal of the above findings recorded by Trial Court cannot be construed as a finding arrived at by

10 10 examining title to the property. In order to ascertain as to whether the contention of plaintiff regarding possession is to be accepted or not and for the said limited purpose, Trial Court has expressed its opinion on the documents produced by parties as extracted hereinabove. That by itself cannot be construed as Trial Court has expressed opinion or its views on the title to the suit property. 13. Be that as it may. If it is clarified or made clear that said finding is only for the purposes of ascertaining the possession of the parties alone, that Trial Court had examined the contents of General Power of Attorney Exhibit P1, it would suffice inasmuch as 1 st defendant in the instant case has undisputedly filed a comprehensive suit O.S.No.6142/2011 seeking following reliefs: (a) To cancel the purported sale deed dated , which is registered as document No.1 BSK / , stored in C.D. No.BSKD-27, in the office of the Sub-Registrar, Banashankari, Bangalore entered between 1 st and 2 nd defendants herein. (b) To declare that the sale deed dated , registered as document No. BSK / , stored in C.D. No.BSKD-27 in the office of the Sub-

11 11 Registrar, Banashankari, Bangalore entered between 1 st and 2 nd defendants as null and void. (c) To declare that, the second plaintiff is the absolute owner of the suit schedule property by virtue of the registered gift deed dated , vide document No. BSK-I-00710/ , stored in CD No.BSKD- 40. (d) Direct the defendants 1 and 2 to handover all original documents of title pertaining to the suit schedule properties to the plaintiffs. (e) To grant perpetual injunction restraining 1 st and 2 nd defendants or their agents, workmen or any one claiming under them from interfering the peaceful possession and enjoyment of the suit schedule property by the plaintiff and the Hon ble Court award costs of the suit and grant such other relief as this Hon ble court may deem fit to grant in the facts of the case. (f) To grant any other decree or order which this Hon ble Court deems fit to grant in the facts and circumstances of the case. 14. This would clearly indicate that both the parties are now seeking adjudication of the dispute in respect of suit schedule property which is being adjudicated by the

12 12 competent Court in O.S. No.6142/2011. As such, any observation made by Trial Court in the case of judgment and decree passed in O.S. No.7686/2009 shall not prejudice the rights of the parties in the comprehensive suit O.S. No.6142/2011 now pending in respect of suit schedule property. It is also made clear that judgment and decree passed by Trial court in O.S. No. 7686/2009 is for the limited purpose of examining the possession of plaintiff and it would also not come in the way of parties to prove their respective pleadings in the pending comprehensive suit O.S. No. 6142/ Now turning back my attention to judgment and decree passed by Trial Court, it would indicate that suit schedule property was originally standing in the name of Smt. Byamma and Sri. Gopala and they through their Power of Attorney holders Sriyuths C.Subramanya Naidu and V.Rajendra Naidu executed a sale deed dated in favour of Smt. N.Sridevi. Said sale deed is produced and marked as Exhibit P-3. Said Smt.N.Sridevi in turn had sold the suit schedule properties in favour of Smt. D. Aruna on , which sale deed has been produced and marked

13 13 as Exhibit P-4. Said Smt. D. Aruna in turn has sold it in favour of Smt.T.Muniyamma - 1 st defendant herein under a registered sale deed dated , which is also produced and marked as Exhibit P-5. These facts are not in dispute between both plaintiff and defendants. The dispute between the parties has arisen by virtue of a power of attorney said to have been executed by 1 st defendant - Smt. Muniyamma according to plaintiff in favour of her daughter Smt. T. Kumari (plaintiff s wife) on , and same is the bone of contention between the parties. Said power of attorney has been produced by plaintiff and marked as Exhibit P-1. By virtue of said power of attorney executed by Smt. Muniyamma in favour of her daughter she has sold the suit schedule property in favour of her husband - plaintiff herein under a registered sale deed dated , which is produced and marked as Exhibit P-2. It is these two documents, which are under attack by the defendants before Trial Court. 16. As already observed hereinabove insofar as sale deed dated (Ex.P.2) is concerned the very same defendants have already filed a comprehensive suit

14 14 O.S.No.6142/2011 seeking for cancellation of said sale deed and to declare 2 nd plaintiff to be the absolute owner by virtue of gift deed dated said to have been executed by 1 st defendant in favour of 2 nd defendant. This Court has already clarified hereinabove that observation made by Trial Court with regard to power of attorney is limited for the purposes of adjudication of dispute between the parties in the present suit i.e., O.S.No.7686/2009 and it cannot be considered or construed as Trial court having examined the title of the parties. In that view of the matter, I am of the considered view that Trial Court has not committed error nor there has been any erroneous appreciation of evidence to arrive at a conclusion that plaintiff is in possession of the suit schedule property. In that view of the matter judgment and decree passed by Trial Court does not call for any interference. 17. Though Sri. R. Vijaykumar, learned counsel appearing for appellant expressed apprehension of plaintiff alienating or encumbering suit schedule property was required to be examined, same would not arise since Sri. V. Vijayashekara Gowda, learned counsel appearing for

15 15 plaintiff would fairly submit that during the pendency of suit O.S.No.6142/2011, suit schedule property would neither be encumbered nor would be sold to create third party rights and as such placing his submission on record the apprehension expressed by the learned counsel appearing for appellant is hereby allayed. In that view of the matter, I am of the considered view that no further order requires to be passed in this appeal with regard to apprehension expressed by learned counsel for appellants/defendants. In the result following order is passed: ORDER i. Appeal is hereby dismissed. ii. Judgment and decree passed by the 42 nd Addl. City Civil and Sessions Judge, Bangalore dated in O.S. NO.7686/2009, is hereby affirmed subject to observations made hereinabove. iii. Parties to bear their respective costs. Sd/- JUDGE DR

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