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2024 Supreme(Online)(Kar) 36914
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL, 2024 BEFORE THE HON'BLE MR JUSTICE N S SANJAY GOWDA CIVIL REVISION PETITION NO. 131 OF 2024 (IO)
BETWEEN:
1. RINNY EAPEN S/O LATE P K EAPEN AGED 73 YEARS NO. 570, 3RD BLOCK KORAMANGALA BENGALURU - 560034 (GPA HOLDER RICKY EAPEN)
…PETITIONER (BY SRI. MANIAN K B S.,ADVOCATE)
AND:
1. DR M P SOMAPRASAD S/I M K PRABHAKARAN AGED 72 YEARS R/AT NO 12, MANTRI ALTIUS NO 17, RAJ BHAVAN ROAD Digitally signed by BENGALURU – 560051.
KIRAN KUMAR R Location: 2. P G ALEXANDER (SINCE DECEASED)
HIGH COURT OF S/O GEORGE KARNATAKA NO 16, SRINIDHI TEMPLE STREET CHUNCHAGAGHATTA DODDAKALLASANDRA POST BENGALURU – 560062.
3. DR R SUBBA RAO S/O DR S V RAMARAO AGED 77 YEARS NO. 1631/1, DHATREE
32ND CROSS BSK II STAGE BENGALURU – 5600070.
4. M/S SUSHRUTHA VISHRANTHI DHAMA PVT LTD A COMPANY REGISTERED UNDER THE COMPANIES ACT
1956 HAVING ITS REGISTERED OFFICE AT NO 202, RASTREEYA VIDYALAYA ROAD BASAVANAGUDI - 560004.
SY NO 18/4, THALAGHATTAPURA UTTARAHALLI MANAVARTHE KAVAL UTTARAHALLI HOBLI BANGALORE SOUTH TALUK BANGALORE DISTRICT-560061 REPRESENTED BY ITS MANAGING DIRECTOR.
…RESPONDENTS (BY SRI. SANJAY NAIR., ADVOCATE FOR C/R-1)
THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 22.01.2024 PASSED ON I.A.NO.3 IN OS.NO.472/2019 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE BENGALURU RURAL DISTRICT, BENGALURU, REJECTING THE I.A.NO. 3 AND 4 FILED UNDER ORDER 7 RULE 11(a) AND (d) OF CPC FOR REJECTION OF PLAINT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The 1st respondent instituted a suit seeking for a declaration that he is the absolute owner of the suit schedule property which was the land bearing Old Sy.No.18 (New Sy.No.18/4) measuring 2 acres situate at Uttarahalli Manavarthe Kaval Village, Uttarahalli Hobli, Bengaluru South Taluk.
2. He has also sought for a declaration that the three registered Sale Deeds dated 09.10.2001, 22.12.2001 and 22.12.2001 executed by the 2nd defendant, the alleged General Power of Attorney holder of the plaintiff in favour of the 1st defendant were void, invalid, bogus, etc.
3. He has also sought for a declaration that the subsequent Sale Deed dated 03.10.2005 executed by the 1st defendant in favour of the 4th defendant was void and ultimately, sought for a direction to the 4th defendant to hand over vacant and peaceful possession of the suit schedule property.
4. In a nutshell, a plea of the plaintiff was that he had never executed a General Power of Attorney in favour of the 2nd defendant and the 1st defendant had, in collusion with the 2nd defendant, created a General Power of Attorney and obtained a Sale Deed in his own favour.
5. It was also alleged that the 1st defendant had been entrusted with the work of getting phodi done of the suit schedule property and the 1st defendant taking advantage of plaintiff’s absence from 1998 to 2002, had created the General Power of Attorney in favour of the 2nd defendant and subsequently, obtained a Sale Deed on the strength of the said General Power of Attorney.
6. In the said suit, the 1st defendant as well as the 4th defendant filed applications seeking rejection of plaint on the ground that on a meaningful reading of the plaint, it was clear that there was no cause of action. They also contended that the suit filed in the year 2019 seeking for a declaration that the Sale Deeds of the year 2001 were null and void, was hopelessly barred by time.
7. The Trial Court, by a common order, has dismissed both the applications and hence, the 1st defendant is before this Court by way of this revision petition.
8. Sri K.B.S.Manian, learned counsel for the petitioner has strenuously contended that the suit for declaration that the Sale Deeds of the year 2001 were null and void, was clearly barred by time having regard to the fact that the said suit was filed only in the year 2019. He also sought to contend that since fraud was alleged against the 1st defendant, Section 17 of the Limitation Act would stand attracted and by virtue of the proviso to Section 17, the sale in favour of the 4th defendant stood automatically saved and therefore, the suit was not maintainable.
9. He has placed strong reliance on the judgment of the Madras High Court rendered in the case of APPASWAMY REAL ESTATES LIMITED VS. NEELAYATHATCHI AMMAL –
2005-3-L.W.152.
10. The plaintiff, as already stated above, instituted a suit seeking for a declaration that he was the owner and for a declaration that the Sale Deeds executed by the 2nd defendant, on the strength of an alleged General Power of Attorney executed by the plaintiff in favour of the 1st defendant were void and did not confer any title to the 1st defendant. A further declaration was sought that the subsequent Sale Deed executed by the 1st defendant in favour of the 4th defendant was also void.
11. A reading of the plaint would indicate that the plaintiff contended that he was on friendly terms with the 1st defendant and had engaged his services for the purposes of getting phodi of Sy.No.18 and in that regard, he had handed over the original documents along with Dr.Joseph Lenz Pendanam, who had also handed over his original documents. The plaint would also indicate that the plaintiff was in USA from July 1998 till May, 2002 and it was the specific case of the plaintiff that he had not executed any General Power of Attorney in favour of the
2nd defendant. In fact, the relevant paragraph in the plaint reads as follows:
“37. On a perusal of the said sale deeds, it is seen that Defendant
