Defendants not cross-examining witnesses warranted a retrial for fair opportunity.

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

The present appeal is filed by defendant Nos.1 and 2 calling in question the judgment and decree dated 05.04.2022 passed in OS No.184/2012 by the Principal Senior Civil Judge, Chikodi, [For short, ‘the Trial Court’], whereunder, the suit for declaration and injunction filed by the respondent No.1/plaintiff has been decreed by the Trial Court.

2. The relevant facts are that the defendant No.1 is the brother of the plaintiff; the defendant No.2 is the wife of defendant No.1 and defendant Nos.3 to 6 are the children of the plaintiff.

3. It is the case of the plaintiff that the suit properties were allotted to the share of her husband in the partition amongst the members of her husband's family and her husband's name was entered into the revenue records. Thereafter, since the plaintiff was in judicial custody in a criminal case, taking advantage of the situation the defendant Nos.1 and 2 fraudulently, mis-utilising certain papers wherein, the signatures of the plaintiff were affixed, created a General Power of Attorney in the name of defendant No.2 and got executed a document styled as a relinquishment deed in favour of defendant No.1 on 15.12.2010. That the plaintiff after coming to know of the same, filed the suit seeking for suitable reliefs.

4. Defendant Nos.1, 2, 4 and 5 entered appearance before the Trial Court. Defendant Nos.3 and 6 were placed ex-parte. Defendant Nos.1 and 2 filed written statements, which was adopted by defendant Nos.4 and 5. In the written statements, the defendants contended that they had spent considerable amount in the criminal proceedings for release of the plaintiff, as also for the marriage of the children of the plaintiff. In the said context, the General Power of Attorney dated 25.06.2003, was executed. Hence, the defendants denied the case put forth by the plaintiff.

5. The Trial Court consequent to the pleadings of the parties, framed seven issues. The plaintiff examined herself as PW1 as also another witness was examined as PW2 and got marked the documents at Ex.P1 to P5. The defendants did not cross examine PW1 and PW2, nor led any oral or documentary evidence. The Trial Court answered issue Nos.1 to 6 in the affirmative and decreed the suit and ordered as under:

“The plaintiff’s suit is hereby decreed in part.

The plaintiff is hereby declared as joint owner of suit schedule properties along with defendants 3 to 6.

The general power of attorney dated

25/06/2003 said to have been executed by plaintiff in favour of defendant-2 is hereby declared as null and void.

Further, the relinquishment deed dated

15/12/2020 executed by defendant-2 in favour of defendant-1 is declared as null and void and not binding on plaintiff.

All the acts and deeds done by defendant-

2 on the basis of alleged general power of attorney dated 25/06/2003 and the acts and deeds done by defendant-1 on the basis of alleged relinquishment deed 15/12/2010 are hereby declared as not binding on the right of plaintiff over suit schedule properties.

By way of permanent injunction, the defendants 1 and 2 are hereby restrained from interfering with the possession of plaintiff over suit schedule properties.

No order as to costs.

Draw decree accordingly.”

6. Being aggrieved, the present appeal is filed by defendant Nos.1 and 2.

7. Heard the submissions of learned counsel for appellants and learned counsel for respondent Nos.1 to 5.

8. Although various contentions have been urged by the defendants on the merits of the matter by contending, inter alia, that having regard to the oral and documentary evidence on record, the judgment and decree passed by the Trial Court is erroneous, the primary contention put forth on behalf of the appellants is that, although the defendant Nos.1 and 2 had entered appearance in the suit and filed their wr