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2020 Supreme(Kar) 1111
IN THE HIGH COURT OF KARNATAKA AT BENGALURU (KALABURAGI BENCH)
P. Krishna Bhat, J.
Jahangir Patel - Appellant
Versus
Pathru - Respondent
Regular Second Appeal No. 200150 of 2019
Decided On : 19-06-2020
Ameet Kumar Deshpande, Advocate, A. Vijay Kumar, Advocate
The main legal point established in the judgment is that a party must seek cancellation of relevant documents to claim relief, and the failure to do so may bar them from obtaining the relief sought.
Headnote:
Registration Act - Power of Attorney - Sections 28 and 33 - The court dismissed the suit seeking a declaration of absolute ownership of land and cancellation of power of attorney and sale deed. The court found that the plaintiff failed to seek cancellation of the power of attorney and sale deed, and therefore, was not entitled to the relief sought. The appeal was dismissed as no substantial question of law arose.
Fact of the Case:
The plaintiff filed a suit seeking a declaration of absolute ownership of land, cancellation of power of attorney, and sale deed. The trial court dismissed the suit, and the appeal was also dismissed. The plaintiff then filed a second appeal under Section 100 of CPC, claiming a substantial question of law arose due to non-adherence to an important legal aspect by the lower courts.
Finding of the Court:
The court found that the plaintiff failed to seek cancellation of the power of attorney and sale deed, and therefore, was not entitled to the relief sought in the suit. The court also held that no substantial question of law arose for consideration in the appeal.
Issues: The main issue was whether the plaintiff was entitled to the relief sought in the suit, and whether a substantial question of law arose in the appeal.
Ratio Decidendi: The court held that the plaintiff's failure to seek cancellation of the power of attorney and sale deed barred him from claiming the relief sought. The court also found that no substantial question of law arose for consideration in the appeal.
Final Decision: The appeal was dismissed, and no costs were awarded.
JUDGMENT
P.Krishna Bhat, J. - This second appeal is preferred by the plaintiff in O.S.No.80/2011 before the learned Senior Civil and JMFC, Jewargi, which ended in dismissal and the appeal filed before the learned III Additional District and Sessions Judge, Kalaburagi in R.A.No.8/2018 was dismissed.
2. The parties are referred to as per their ranks before the learned Trial Court in the course of this judgment for the sake of convenience.
3. The appellant is the plaintiff before the Trial Court and respondent Nos.1and 2 were defendant Nos.1 and 2 respectively. Suit in O.S.No.80/2011 was filed seeking a declaration that the plaintiff is the absolute owner of suit land bearing Survey No.65/3, Khata No.652, measuring 1 acre 29 guntas and another piece of land bearing Survey No.65/4, Khata No.652, measuring 5 acres 5 guntas, situated in Jewargi taluk, Kalaburagi district and a declaration that the irrevocable power of attorney executed by the plaintiff in favour of defendant No.1 on 31.08.2009 is wrong, illegal and unenforceable in law and not binding on him and also for a declaration that the registered sale deed dated 06.09.2009 bearing document No.2609/2009-10 executed by defendant No.1 in favour of defendant No.2 is wrong, illegal and a sham document without consideration and not binding on him and further for a permanent injunction for restraining defendants or any person acting or claiming through them from causing obstruction or interfering with his possession and enjoyment of the suit lands and for costs. Defendant Nos.1and 2 had filed their separate written-statements before the Trial Court. The learned Trial Court has framed relevant issues for trial. During the trial, the plaintiff has examined his father, who was also his power of attorney for prosecuting the suit as PW.1 and Exs.P1 to P8 were marked. Defendant No.1 examined himself as DW.1 and Exs.D1 to D17 were marked for the defendants.
4. After hearing and consideration of entire records, the learned Trial Court by its judgment dated 30.11.2017 dismissed the suit. In a judgment marked for its lucidity and attention to details of the case and settled principles of law, learned trial Judge has found that the plaintiff and his father who was his power of attorney for prosecuting the suit were educated persons inasmuch as the former was an engineering graduate in animation and the latter was a law graduate and also a businessman and the execution of Ex.D5, a registered irrevocable power of attorney dated 31.08.2009 having been admitted and the plea for impeaching the legal validity of the execution of the same being lacking in particulars in terms of Order 1 Rule 4 of Code of Civil Procedure, 1908 ( CPC for short) legality and validity of the same cannot be questioned and further the sale deed as per Ex.D6 dated 06.09.2009 having been executed on the strength of such irrevocable power of attorney, cannot again be impeached on the ground of want of consideration for which, according to the learned trial Judge, the remedy available is by filing a suit for recovery of unpaid consideration amount. He also entered a finding by placing reliance on a decision of the Hon ble Supreme Court ( Suhrid Singh @ Sardool Singh vs. Randhir Singh and Others, (2010) AIR SC 2807 ), that the frame of the suit was bad in as much as the plaintiff being the executant of Ex.D5 ought to have sought for cancellation of the power of attorney which he had not and similarly and for the same reason Ex.D6 Sale Deed having been executed by the power agent of the plaintiff in favour of defendant No.2, he ought to have sought cancellation of Ex.D6, which he had not and therefore he is not entitled to the relief which he has sought in the suit. As already noticed, the appeal filed by the plaintiff in R.A.No.8/2018 before the III Additional District and Session Judge, Kalaburagi has been dismissed by the judgment dated 08.03.2019.
5. In support of this second appeal, while conceding that an appeal under Sect
