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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.B. Prabhakara Sastry, J.
M.S. Ananthamurthy S/o. Late M.Srinivasachar and ors. – Appellants
Versus
J.Manjula W/o. E. Janardhan – Respondent
R.F.A. No.1318 & 1317 of 2014
Decided On : 16-10-2019
Indian Contract Act, 1872 - Section 202 and 201 - Limitation Act, 1963 - Article 65 and 58 - Transfer of Property Act, 1882 - Sections 5, 8, 53-A, 54, 55, 105 and 107 - Property - Sale Deed - Suit for Permanent Injunction - Whether plaintiff proves that she is in lawful possession and enjoyment of suit schedule property as on date of suit - Whether plaintiff proves alleged interference - Whether plaintiff is entitled to permanent injunction as sought - Whether plaintiff proves that he is an absolute owner of suit property for valuable consideration - Whether plaintiff proves that defendants-1 to 6 have executed registered Sale Deed in favour of defendant No.7 - Whether plaintiff proves that alleged Sale Deed is null and void - Whether plaintiff proves that Sale Deed alleged to be executed by defendant No.7 in favour of defendant No.8 is null and void - Whether plaintiff proves that gift deed executed by defendant No.8 in favour of defendant No.9 is illegal, null and void and not binding on plaintiff - Whether plaintiff is entitled for possession of suit property - Whether plaintiff is entitled for reliefs - Whether defendant No.9 proves that defendant No.8 had valid title over suit property and she has executed gift deed in her favour - Whether defendant No.9 proves that court fee paid is not proper - Whether is having any interest under said irrevocable Power of Attorney has to be gathered from circumstance of case and position of law – Held, These three judgments would clearly go to show that merely because a Power of Attorney holder is said to have been put in possession of subject property or merely because Power of Attorney holder is said to have parted with some money in favour of executant of General Power of Attorney, by that itself, it cannot be inferred that Power of Attorney has got any interest in subject property - Merely because they are contemporaneous documents, it cannot be inferred that holder of said agreement would get an interest under General Power of Attorney so as to over come Section 201 of Contract Act and fall within scope of Section 202 of same Act - This is clear in all three judgments referred above which were relied upon by learned counsel for respondents - Rather in those situations, where sale agreement holder though was put in possession and had already parted with some consideration, remedy available to such agreement holder would be for enforcing contract, specifically either as against executant or his/her legal representatives - By making said suggestions which were admitted by witness, defendants in said suit have admitted possession of suit schedule property by plaintiff in said suit - There is nothing to call said possession as an illegal or unlawful possession since plaintiff therein has contended that she was put in possession of suit schedule property by vendor from whom she purchased said property under a registered Sale Deed - Evidence of DW-1 further goes to show that he went to suit schedule property and enquired person who was residing in house built up there, as to who was in possession of property and under whom and as to when he is in possession of property - Thus, DW-1 himself has shown that he has entered suit schedule property and enquired with occupants - It failed to notice that suit of plaintiff was not a suit simplicitor for declaration based upon Sale Deed, but it was a suit for declaration coupled with a prayer for possession of property - As such, it is Article 65 of Schedule to Limitation Act that comes into operation under which, period of limitation would be twelve years - In such a case, suit of plaintiff could not have been considered as one barred by limitation - However, even though said suit can be treated as one filed within limitation period, still, in view of observations made above, with finding given by Trial Court with respect to other issues since warrants no interference at hands of this Court - Appeals dismissed.
JUDGMENT :
Both these appeals have arisen out of a common judgment passed by the Court of the VIII Additional City Civil and Sessions Judge (CCH : 15) at Bengaluru City (hereinafter for brevity referred to as the “Trial Court”) dated 21-06-2014.
R.F.A.No.1318/2014 is filed against the common judgment in O.S.No.133/2007 by the defendants therein, whereas R.F.A.No.1317/2014 is filed by the plaintiff in O.S.No.4045/2008.
O.S.No.133/2007 was a suit for permanent injunction filed by the respondent in R.F.A.No.1318/2014, in the Trial Court whereas O.S.No.4045/2008 was a suit for declaration and possession filed by the appellant in R.F.A.No.1317/2014 as a plaintiff in the Trial Court. The plaintiff in O.S.No.133/2007 was also defendant No.9 in O.S.No.4045/2008.
2. The Trial Court by its impugned common judgment dated 21-06-2014 partly decreed O.S.No.133/2007 filed by plaintiff-Smt. J. Manjula and dismissed O.S.No.4045/2008 filed by Sri.A. Manohar. It is against the said common judgment, these two appeals have been filed.
3. Both the suits in the Trial Court were with respect to the respective suit schedule property which, according to both side, is the very same property. Though there appears to be some variation in the measurement on one side of the suit schedule property, however, the parties in both these appeals submit that the suit schedule property in both the suits are one and the same. Admittedly the suit property is a site said to be situated at Chunchaghatta village, Uttarahalli Hobli, Bangalore South Taluk.
4. The summary of the case of the plaintiff in O.S.No.133/2007 was that, the mother of the plaintiff by name, Smt. C. Roopavathi was the absolute owner of the suit schedule property having purchased the same under a registered Sale Deed dated 29-09-2003 from one Sri. S. Sreenivasulu. After the said purchase, she got the khata (tax demand register) made in her name and continued to pay the taxes with respect to the said property. Smt. C. Roopavathi gifted the said property in favour of the plaintiff - J. Manjula (in O.S.No.133/2007), who is her daughter, under a registered Gift Deed dated 06-12-2004 and since then, the said plaintiff - Smt J. Manjula has been in lawful possession and enjoyment of the suit property after getting the khata made in her name. She is paying the taxes regularly. The plaintiff also pleaded that she put up a small house in the suit property. On 02-01-2007, the defendants without any manner of right, title or interest, interfered in her possession over the suit property. The jurisdictional Police also did not help her, as such, she was constrained to institute a suit for the relief of permanent injunction against the defendants therein.
5. After service of suit summons upon them, both the defendants appeared through their counsel and filed their Written Statement, where under they denied the plaint averment that the plaintiff – Smt. J. Manjula is the owner of the suit schedule property. They also denied the alleged title earlier with the mother of the said plaintiff by name Smt. C. Roopavathi. On the other hand, the defendants contended that the defendant No.2 – Sri.A. Manohar is the owner in possession of the property and that the plaintiff – Smt.J. Manjula has illegally put up a construction in the said property. They also contended that the said Sri. A. Manohar has purchased the said property for valuable consideration under a registered Sale Deed which was executed in his favour by the holder of an irrevocable General Power of Attorney which was executed in favour of Smt. A. Saraswathi on 04-01-1986 by its executant - one Sri. Muniyappa @ Ruttappa. They denied that the plaintiff is entitled for the relief as sought for.
6. The summary of the plaint averments in O.S.No.4045/2008 is that, the plaintiff – Sri.A. Manohar is the sole and absolute owner of the suit schedule property having purchased the same from its true owner one Sri. Muniyappa @ Ruttappa S/o. Ragallappa for a valuable consideration thro
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