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2025 Supreme(Kar) 1300
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
V Srishananda, J.
Smt Sharada Shetty, W/O Late Appu Mestry (Since Deceased) And Ors. - Appellants
Versus
Mr. B. Ananda G. Pai - Respondent
Regular Second Appeal No. 996 of 2024 (POS)
Decided On : 02-09-2025
For the Appellant :Sri. Sachin B S., Advocate
For the Respondent:Sri. Cyril Prasad Pais, Advocate
Court reaffirmed that the absence of specific property description in Power of Attorney does not negate ownership claims in eviction proceedings.
Headnote:(A) Transfer of Property Act - Section 106 - Eviction suit - Plaintiff seeks possession of inherited property from statutory tenants - Suit decreed by Trial Court and upheld by First Appellate Court - Validity of Power of Attorney challenged by defendants. (Paras 2-24)
(B) Appellate Procedure - Appellate courts should not interfere unless lower court's findings are perverse or illegal. (Paras 21-23)
Facts of the case:
Suit filed for possession of property by co-owner against statutory tenants, resulting in a decree for possession and mesne profit. Notice of termination issued under Section 106 was challenged.
Findings of Court:
Ownership of plaintiff not disputed; procedural flaws in notice insufficient to admit appeal.
Issues: Validity of Power of Attorney execution and sufficiency of notice for eviction.
Ratio Decidendi: The court found that the absence of specific description in the Power of Attorney did not invalidate the possession claim and notice could be questioned based on substantive evidence.
Result: Appeal dismissed.
JUDGMENT :
V Srishananda, J.
Heard the learned counsel Sri. K.V. Aniketh for the appellants.
2. Defendant is the appellant challenging the judgment and decree passed in O.S.No.65/2014 confirmed in R.A.No.34/2017 whereby suit of the plaintiff is decreed and defendant was directed to surrender the vacant possession of Schedule 'A' Property within two months and to pay mesne profit of Rs.500/- per month from the date of suit till recovery.
3. Facts in the nutshell which are utmost necessary for disposal of the appeal are as under:
A suit came to be filed for the relief of possession of the following immovable property which is hereinafter referred to as Suit Schedule 'A' Property :
SUIT 'A' SCHEDULE PROPERTY
Left side portion of the tiled residential building bearing Karkala Town Municipality bearing Door No. 158/1 Ward I measuring about 450 Sq.ft. Consisting with two rooms, one kitchen, toilet, bath room and with electricity supply and all other things attached to the building (At present the Town Municipality, Karkala is allotted fresh Door number 1-158/1 in respect of plaint 'A' schedule premises).
4. it is contended that plaintiff is one of the co-owners of Suit Schedule 'A' Property and himself and other co-owners have inherited the suit property and other landed properties.
5. Defendants are statutory tenants of the plaintiff. One Appu Mestry - husband of the first defendant and father of the second defendant obtained plaint schedule premises from the ancestors of the plaintiffs on monthly rent of Rs.8/- payable on 1st day of every month. After the death of said Appu Mestry, first defendant and daughter - second defendant have occupied the plaint schedule property on payment of monthly rent.
6. The other children of Appu Mestry and first defendant got married and they are living in their respective husband's houses. Elder daughter of first defendant Smt. Baby Alva is presently working as Principal, Government Pre University College, Muniyalu and another son by name Gopalakrishna Shetty is working as Chief Officer, Pattana Panchayath, Saligrama, yet another son by name Sri. Ananthakrishna Shetty is working as Government Contractor, Town Municipality, Karkala and he is residing in Karkala.
7. A notice of termination was issued under Section 106 of Transfer of Property Act and despite the same, there was no compliance, as such, a suit was initiated. Suit on contest, came to be decreed.
8. Defendant has contended that GPA holder did not have the power to initiate and prosecute the suit as there was no specific mention of the suit property in the General Power of Attorney.
9. The suit was also resisted on the ground that the notice issued by the plaintiff was incorrect and did not grant any right for the plaintiff to seek for possession of the suit property. Both the grounds were negated by the Trial Judge.
10. Being aggrieved by the decreeing of the suit, defendant filed an appeal before the First Appellate Court.
11. Learned Judge in the First Appellate Court after securing the records heard the arguments of the parties and noted that the execution of the General Power of Attorney in faovur of PW1 where there was no mention as to description of the suit property is incorrect and validity of the notice was re-appreciated and ultimately dismissed the appeal.
12. Being aggrieved by the same, the present appeal has been filed on the following grounds:
The impugned Judgment and Decree passed by the court below is unjust, opposed to law, contrary to the pleadings and evidence paced on the parties. Under such circumstances the impugned judgment and decree passed by the court below is liable to be set aside.
The Court Below had committed an error while passing the impugned judgment and decree which is in consideration of irrelevant material placed on record by the respondents and non-consideration of real material placed on record by the appellant. Under such circumstances the impugned judgment and decree passed by the courts below are liable to be s
