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2014 Supreme(Kar) 972
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
S.N. Satyanarayana, J.
Sri Shivakumar – Appellant
Vs.
Nanjamma – Respondents
Regular Second Appeal No. 1197 of 2011 (Res.)
Decided On: 18.01.2014
Advocate Appeared:
For Appellant : Sri K.P. Asokumar, Adv.
For Respondents: Sri Sanjiva V. Belagalli, Adv. for R-2
Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 100: [S.N. Satyanarayana, J] Second Appeal - Concurrent finding - Plaintiffs suit for cancellation of sale deed, permanent injunction and possession against his younger brother and his wife - Allegation that defendant obtained signature on blank sheets, fabricated G.P.A. and affidavit and executed sale deed - Held, the contention of the appellant that Court fee payable under Section 38(1) in respect of agricultural land is covered under Section 7(2) of the Karnataka Court Fees and Suits Valuation Act, is just and proper in that view of the matter, the finding of the trial Court as well as lower appellate Court in holding that plaintiff will have to pay ad valorem Court fee on the market value of the suit schedule property, is erroneous and the same is set aside. In the present suit, in the particular facts and circumstances of the case, which is rightly discussed by both the Courts below while dismissing his suit for cancellation of sale deed and also for the relief of permanent injunction initially and subsequently converted in to the suit for the relief of possession of suit property. On going through the judgment of both the Courts below, it is clearly seen that both the Courts below have rightly held that plaintiff is not entitled for the said relief.
KARNATAKA COURT-FEES & SUITS VALUATION ACT, 1958 - Sections 7(2) & 38(1): [S.N. Satyanarayana, J] Suit for cancellation of sale deed, permanent injunction and possession against his younger brother and his wife - Allegation that defendant obtained signature on blank sheets, fabricated G.P.A. and affidavit and executed sale deed - Court fee - Held, the contention of the appellant that Court fee payable under Section 38(1) in respect of agricultural land is covered under Section 7(2) of the Karnataka Court Fees and Suits Valuation Act, is just and proper in that view of the matter, the finding of the trial Court as well as lower appellate Court in holding that plaintiff will have to pay ad valorem Court fee on the market value of the suit schedule property, is erroneous and the same is set aside.
S.N. Satyanarayana, J.
1. The unsuccessful plaintiff in O.S. No. 2108/2006 on the file of II Additional Senior Civil Judge, Bangalore Rural District, Bangalore, has come up in this second appeal impugning the concurrent finding of both the Courts below in dismissing his suit filed seeking cancellation of Sale Deed dated 01.08.2006 which is registered on 03.08.2006 as document No. BNG(U) YLNK/10107/2006-07 and for the relief of permanent injunction restraining the defendants, their agents from interfering with the alleged possession of suit schedule property by the plaintiff and other reliefs which was sought initially and subsequently amended to seek additional prayer of delivery of vacant possession of suit schedule property from the second defendant. For the sake of brevity, parties herein are referred to by their rank in the trial court.
2. Brief facts leading to this second appeal are as under:
Plaintiff in the original suit, who is appellant herein is younger brother of second defendant, N. Mallaiah, who is husband of first defendant, Smt. Nanjamma. Admittedly the suit property was the ancestral property of plaintiff-Shivakumar and second defendant, Mallaiah, which has fallen to the share of Shivakumar in the partition between himself and his brother. It is further not in dispute that pursuant to partition, Shivakumar was put in exclusive possession of the suit schedule property. However, it was contended that the plaintiff was in possession of the suit schedule property till the date of filing of suit against the defendants for the aforesaid prayer. The case of plaintiff is that during the month of July, 2006, he came to know about an attempt being made by his brother in utilizing some of the documents, which was executed in favour of his brother to create certain documents regarding his title to the suit schedule property and encumbering the same. Hence, it is stated that he issued a notice on 31.07.2006 to second defendant calling upon him not to deal with the property on the basis of any of the documents, which he is purported to have secured on some stamp paper for the purpose of securing loan in his favour. It is stated that subsequent to issue of notice on 31.07.2006, defendant Nos. 1 and 2 collusively prepared a Sale Deed dated 01.08.2006 and got the same registered on 03.08.2006, wherein the first defendant relying upon a fabricated Power of Attorney conveyed the suit schedule property in favour of her husband, second defendant and the present suit is filed seeking cancellation of the said document in conveying the suit schedule property in favour of second defendant. It is necessary to mention that while filing the suit, plaintiff produced copy of the registered Sale Deed and also copy of the Power of Attorney under which suit property was sold by the first defendant in favour of second defendant.
3. In the said suit, after service of summons, defendants entered appearance and set up a defence to the effect that the suit schedule property was nodoubt the property of the plaintiff, which had fallen to his share in a partition between himself and his brother, plaintiff. It is their case that in the year 1993, plaintiff approached second defendant offering to sell the suit schedule property for valuable consideration of Rs. 40,000/- and in that behalf he executed two documents, one General Power of Attorney dated 15.02.1993, which he executed in favour of first defendant authorizing her to deal with the property in whatever manner she deems fit to do so and also executed another document in the form of an affidavit, wherein he has received the entire sale consideration of Rs. 40,000/- for sale of the suit schedule property in favour of second defendant and on the date of execution of General Power of Attorney, he has given an undertaking by way of an affidavit delivering possession of suit schedule property in favour of first defendant and that the Power of Attorney which was executed is irrevocable in nature
