IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE H.P. SANDESH R.F.A.No.1013 OF 2013 BETWEEN:
Sri.Shivaiah s/o. Kempegowda aged about 69 years r/a. H.No.46, I Cross Road Rajarajeshwari Nagar, Laggere Bengaluru -58. .. APPELLANT (By Sri.S.Krishnaswamy, Advocate for Sri.Arun Bhat and Sri.Ramakrishna Hegde, Advocates) AND:
Sri. Ashok Venkatesh Shet s/o.late Venkatesh Shet aged about 49 years r/a. Amminahalli Chala Opp. to RTO Office, Chowky Matta Road Sirsi Town, Uttar Kannada .. RESPONDENT (By Sri.Nagendra Kumar, Advocate for Kumar & Bhat for C/R) ---
This RFA is filed under Sec.96 of CPC., against the judgment and decree dated 27.3.2013 passed in O.S.No. 4416/2006 on the file of the XVII Addl. City Civil & Sessions Judge, Bangalore, decreeing the suit for permanent injunction.
This RFA coming on for further arguments this day, the Court delivered the following:-
J U D G M E N T This appeal is filed challenging the judgment and decree passed in O.S.No.4416/2006 dated 27.03.2013 on the file of the XVII Additional City Civil and Sessions Judge, Bengaluru (CCH.No.16), decreeing the suit for the relief of permanent injunction.
2. The parties are referred to with reference to their original rankings before the Trial court as plaintiff and defendant for the sake of convenience and also in order to avoid confusion.
3. The brief facts of the case are, (i) It is the case of the plaintiff that the schedule property originally belonged to one Krishnappa and he had executed a General Power of Attorney and affidavit dated 03.08.1991 in favour of one Sri.Shankar P.Revankar. The said Shankar P.Revankar executed a registered sale deed dated 13.02.2006 in favour of the plaintiff and since then, the plaintiff is the owner in peaceful possession and enjoyment of the suit schedule property. The khata of the property was also transferred to his name and he has paid the tax. It is also his case that the defendant colluding with some Government officials, tried to create false and fabricated document in respect of the very same property. It is also the case of the plaintiff case that on 27.05.2006, the defendant tried to demolish the building constructed on the schedule property by use of force and disturbed plaintiff’s peaceful possession and hence, cause of action has arisen to file the present suit and hence, the plaintiff filed the suit for the relief of bare injunction.
(ii) In pursuance of the suit summons, the defendant appeared before the Court through counsel and filed written statement contending that the Power of Attorney dated 03.08.1991 executed in favour of said Shankar P.Revankar was cancelled by the principal Sri.Krishnappa by issuing notice to the agent Sri.Shankar P.Revankar, directing him to stop acting as agent under the said GPA and also return the original GPA dated 03.08.1991. Despite the acceptance of the notice, the said Power of Attorney holder has not returned the original General Power of Attorney. The said General Power of Attorney holder in order to deprive the right of Sri.Krishnappa, has sold the suit schedule property vide sale deed dated 13.02.2006, much after cancellation of General Power of Attorney. It is also the contention of the defendant that after cancellation of the General Power of Attorney, said Krishnappa being the absolute owner of the suit schedule property, has conveyed the said property to this defendant under registered sale deed dated 16.05.2006. On the same day, the vacant possession of the suit schedule property was delivered to the defendant. Since then, the defendant has been in peaceful possession of the property. It is also his case that he has obtained khata in his favour from CMC and also got assessed the property to tax. It is also contended that the plaintiff or his vendor Sri.Shankar P.Revankar are not in peaceful possession of the property and denied the averments made in the complaint. It is also contended that cause of action mentioned in the suit never arose on 27.05.2006 since this defendant refusing to execute the sale deed in favour of the plaintiff does not arise. The defendant himself is the absolute owner of the property being in peaceful possession and enjoyment of the suit schedule property without there being any obstruction and disturbance. Hence, the suit is not maintainable.
(iii) Based on the pleadings of the parties, the Trial Court framed the following issues:-
(1) Whether the plaintiff proves that, he was in lawful possession and enjoyment of the schedule property as described in the suit schedule including location, identification, measurement and boundaries on the date of suit?
(2) Whether the plaintiff proves that defendant interfered in his peaceful possession and enjoyment of the suit schedule property?
(3) Whether the suit for bare injunction is maintainable without plaintiff seeking relief of declaration of title to the suit schedule property?
(4) What order or decree?
(iv) Plaintiff in order to substantiate his case examined his GPA holder as PW.1 and got marked Exhibits P1 to P21. Plaintiff also examined one of the attesting witnesses to the sale deed as PW.2. On the other hand, defendant examined himself as DW.1 and he got marked Exhibits D1 to D11. The Court below after considering both oral and documentary evidence has decreed the suit. Hence, the present appeal is field by the defendant before this Court.
4. The grounds urged in the appeal memo are that the Court below has committed an error in not considering both the oral and documentary evidence available on record. It is also contended that the Court below failed to consider the fact that even though there was a direction to the plaintiff to produce original General Power of Attorney dated 03.08.1991, the same has not been produced. The documents which are produced before the Court by way of Exhibits P13 to P19 belong to Mr.Shankar P.Revankar. The said Mr.Shankar P.Revankar has to tender his evidence before the Trial Court and he has not been examined before the Court. The Trial Court has failed to consider the said fact. The defendant has taken the specific defence that General Power of Attorney dated 03.08.1991 was cancelled and in support of his contention he also relied on Exhibits D10 and D11. The Court below did not consider the same in right perspective. The Court below also failed to take note of the fact that the plaintiff has not been in lawful possession as on the date of the suit and in spite of it, the Court below considering the document of sale deed which has been executed subsequent to the cancellation of Power of Attorney and other documents, erroneously came to the conclusion that the plaintiff has been in lawful possession. Hence, it requires interference by this Court and prays this Court to set aside the judgment and decree passed by the Trial Court.
5(a). Learned counsel appearing for the appellant/ defendant in his arguments vehemently contended that in terms of the sale deed (Ex.P1) dated 13.02.2006, the sale consideration is mentioned as Rs.60,000/- and in the Encumbrance Certificate (Ex.P2), the value of the property is mentioned as Rs.10,09,000/- and the sale deed is executed by Sri.Shankar P.Revankar who is the Power of Attorney holder in favour of the plaintiff. Inspite of Court below directing the plaintiff to produce original General Power of Attorney vide order dated 03.08.2012, the same was not produced and hence, the Court below ought to have drawn an inference under section 114(g) of the Evidence Act. Learned counsel also would contend that under the General Power of Attorney, no power was conferred upon him to execute the sale deed and under section 33 of the Registration Act, the said Power of Attorney was not registered and even though PW.1 and PW.2 have not been cross-examined, the Court below accepted the evidence of PW.1 and PW.2. The defendant has filed an application for cross-examination of PW.1 and PW.2 and the same was rejected. Merely because the application was rejected, the Court cannot rely upon the evidence of PW.1 and PW.2 and the plaintiff has to substantiate his case before the Court. It is also the argument of the counsel appearing for the appellant that under section 105 of CPC, the counsel would contend that where a decree is appealed from any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal and the same can be rectified by exercising power under section 105 of CPC. It is also contended by the learned counsel that sale deed dated 16.05.2006 which is executed in favour of defendant which is marked as Ex.D1 clearly disclose sale consideration as Rs.9,87,000/- and the sale consideration shown in the document executed in favour of the plaintiff is only Rs.60,000/- and the difference of time is only three months between the two sale deeds and from the sale consideration mentioned in the document, it shows that plaintiff clandestinely obtained sale deed from the Power of Attorney holder and all these aspects have not been considered by the Trial Court.
(b) Learned counsel in support of his case, relied upon the judgment of the Hon’ble Supreme Court in SYNDICATE BANK, Bangalore vs. I.K.AMITHA & Others reported in AIR 1985 Karnataka 213. Learned counsel referring to this judgment, brought to my notice para 13 of the judgment and would contend that, like any other document a power of attorney may also need judicial interpretation on the facts and circumstances of each case. Normally the donor of power will either give restricted qualified power in favour of the agent or he may give absolute and general power. One has to look at the manner in which the power is given to the agent by the principal and the purpose for which it is given in order to ascertain the extent of power.
(c) Learned counsel also relied upon the judgment in the case of JANKI VASHDEO BHOJWANI & Another vs., INDUSIND BANK Ltd., & Others reported in ILR 2005 Karnataka 72 and referring to this judgment, the learned counsel would contend that the term “acts” would not include deposing in place and instead of principal, if the Power of Attorney holder has rendered some “acts” in pursuance to Power of Attorney, he may depose for the Principal in respect of such acts, but he cannot depose for the Principal for the acts done by the Principal and not by him. Similarly, he cannot depose for the Principal in respect of the matter which only the Principal can have a personal knowledge and in respect of which the Principal is entitled to be cross-examined.
(d) The learned counsel also would contend that all documents are in favour of the Power of Attorney holder and not in favour of the plaintiff and no reason was explained by the plaintiff why the documents were transferred in favour of the General Power of Attorney holder and factual aspects clearly disclose that General Power of Attorney holder and plaintiff collided with each other and obtained sale deed even after the cancellation of the Power of Attorney. On these grounds, learned counsel for the defendant/appellant prayed for dismissal of the judgment and decree passed by the Trial Court.
6. Learned counsel appearing for the plaintiff/ respondent in his arguments vehemently contended that in Ex.D1 there is a reference with regard to the execution of the Power of Attorney in favour of the Shankar P.Revankar. Based on the said Power of Attorney, sale deed was executed in favour of the plaintiff and the very execution of sale deed and also General Power of Attorney has not been questioned by the defendant. The defendant contends that Power of Attorney was cancelled and in order to substantiate cancellation of Power of Attorney, no document is produced except postal receipt and letter which are marked at Ex.D10 and Ex.D11. Ex.D10 is created and no document is produced to show that notice at Ex.D11 was served on the Power of Attorney holder. It is also contended by the learned counsel that either in the written statement or in the evidence no where it is stated that on what date the Power of Attorney was cancelled and the postal receipt and the letter which have been created only subsequently and those documents did not come into existence as on the date referred to in Ex.D10 and Ex.D11. Learned counsel appearing for the plaintiff also contended that no doubt there was a direction by the Trial Court in the earliest stage to produce the General Power of Attorney and other documents and when the defendant himself has admitted execution of General Power of Attorney in Ex.D1, the question of producing the original document also does not arise and also according to the defendant, the said General Power of Attorney was cancelled. Other document is khata certificate. Once khata has been effected in favour of the plaintiff, khata of the earlier owner does not arise and the khata made in favour of the plaintiff also has not been challenged.
7(i) In reply to the arguments of the plaintiff, defendant’s counsel would contend with regard to referring to cause of action, it is mentioned as dated 27.05.2006 and there was a mistake in mentioning cause of action arose since the defendant did not execute sale deed and question of execution of sale deed does not arise prior to the date of cause of action mentioned in the complaint itself. The sale deed was already executed in favour of the plaintiff and hence, it is clear that it was by mistake the same was mentioned as cause of action. The Court has to take note of the documents produced before the Court. Only on the ground of inadvertent mistake, the Court cannot be carried away with the mistake.
(ii) In support of his contention, learned counsel has relied upon the judgment of this Court decided on 29.09.2015 in the case of V.NARAYANASWAMY vs. CITY MUNICIPAL COUNCIL & Others in R.S.A.NO.867/2011. He brought to my notice paras 11 and 17 of the judgment and contended that in a suit for bare injunction, the Court has to take note of evidence available before the court and while determining the rights of the parties whether it would also tantamount to pure question of law has to be kept in mind, so also the document which is produced before the Court whether it establishes the possession of the plaintiff who seeks the relief of permanent injunction.
(iii) Learned counsel also relied upon the judgment of the Hon’ble Apex Court in the case of RAME GOWDA (D) by Lrs., vs. M.VARADAPPA NAIDU (D) by Lrs. & Ors. decided on 15.12.2003 reported in AIR 2004 SC 4609 and relying upon this judgment, learned counsel would contend that even the rightful owner who had been wrongly dispossessed may take possession back peacefully without the use of unreasonable force. It is contended that even true owner can also take possession by due process of law and he referred to paras 11 and 13 of the aforesaid judgment.
(iv) Learned counsel also relied upon the judgment of the Hon’ble Supreme Court in the case of PRATAPRAIN KOTHARI vs. JOHN BRAGANZA in CIVIL APPEAL No.3263/1991 decided on 04.04.1999 and brought to my notice para 11 of the judgment and would contend that it is quite obvious that the court had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also held that it is well settled even the owner of the property can get back his possession only by resorting to due process of law.
(v) In reply to the arguments of the respondent’s counsel, appellant’s counsel would contend that in view of section 105 of CPC, even when the witnesses PW.1 and PW.2 have not been cross-examined, this Court can set right the same and Ex.P9 which is produced before the Court is not subsequent to giving the evidence by PW.1 and the Court below did not appreciate both oral and documentary evidence available on record.
8. Having heard appellant/defendant’s counsel and respondent/plaintiff’s counsel and in keeping the contentions urged by both the parties, the points that arise for consideration by this Court are, (i) Whether the Court below has committed an error in granting permanent injunction in favour of the plaintiff in coming to the conclusion that plaintiff has been in lawful possession?
(ii) Whether it requires interference by this Court?
(iii) What order?
POINT Nos.1 to 3 9. The case of the plaintiff is that he has purchased the suit schedule property from Sri.Shankar P.Revankar on 13.02.2006 and from the date of purchase, he has been in possession. It is also his case that the property originally belonged to Sri.Krishnappa and he has executed a General Power of Attorney and affidavit dated 03.08.1991 in favour of General Power of Attorney holder. That on 27.05.2006, the defendant tried to demolish the building by using the force and hence, cause of action arose. The contention of the defendant is that Power of Attorney dated 03.08.1991 executed in favour of Power of Attorney holder was cancelled. Inspite of cancelling the said Power of Attorney, he had executed sale deed in favour of the plaintiff and same does not create any right. It is also the contention of the defendant that he has purchased the property from the original owner on 16.05.2006 and from the date of purchase of property from the original owner, he has been in possession of the property and possession has been delivered in favour of the defendant by the original owner.
10. To substantiate their claim, both of them have adduced their evidence. PW.1 is the Power of Attorney holder of plaintiff who has been examined and the plaintiff got marked Ex.P1 to P21 and also got examined one witness PW.2. PW.1 relied upon sale deed dated 13.02.2006 marked as Ex.P1 and also got produced Encumbrance Certificate as Ex.P2 and also produced endorsement issued by Municipality in terms of Ex.P3 and he also produced Ex.P4 to Ex.P8 and Ex.P10 to Ex.P12 as tax paid receipts. He also relied upon General Power of Attorney dated 31.05.2006 marked as Ex.P9, Ex.P13 – building construction license; Ex.P14 and Ex.P15 receipts, Ex.P16 no objection certificate, Ex.P17 sanctioned plan, Ex.P18 khata certificate, Ex.P19 receipt, Ex.P20 acknowledgement issued by the police and Ex.P21 copy of the complaint. There is no dispute with regard to the fact that evidence of PW.1 and PW.2 has remained unchallenged. It is also the contention of the appellant’s counsel that an application is filed for recalling of PW.1 and PW.2 and the said application was rejected. Learned counsel appearing for the respondent also contended that the said order has reached finality and same has not been questioned and when the witnesses PW.1 and PW.2 were not cross-examined, the question of Court below committing an error in appreciating the evidence does not arise. Learned counsel appearing for the appellant would contend that in this appeal, this Court can set right the same under section 105 of CPC.
11. The Court below while passing the judgment it is mentioned in para 10 of the judgment that even though PW.1 was examined-in-chief on 31.3.2011, the defendant did not bother to cross-examine the witness in time. However, he makes an effort in the fag end of the trial by filing an application for the purpose of further cross- examination and the said application is dismissed and he did not challenge the same. However, on taking note of the material on record, it is clear that PW.1 was cross- examined in short and in cross-examination of PW.1, no question was put with regard to the sale deed as well as Power of Attorney. It is important to note that the suit is filed for the relief of permanent injunction. The defence of the defendant is that the original owner has not executed any Power of Attorney in favour of said Shankar P.Revankar.
12. Learned counsel appearing for the plaintiff brought to my notice Ex.D1 contents. In page 2 of the sale deed which has been executed by the original owner dated 16.05.2006 it is specifically mentioned that original Owner Krishnappa had executed Power of Attorney in favour of Shankar P.Revankar and also made a reference in the sale deed that based on the Power of Attorney, said Shankar P.Revankar has paid the tax on 20.06.1998 vide receipt No.0072125 for Rs.31,331/- and also made a reference that khata has been transferred in respect of the suit schedule property. It is also mentioned that said Power of Attorney was cancelled and original owner obtained possession from the Power of Attorney holder. It is further mentioned that the said Power of Attorney holder did not execute any document and also did not avail any loan and also not mortgaged the property and there was no dispute in respect of the suit schedule property.
After having considered the recitals of Ex.D1, even though the defendant denies the very execution of power of attorney, the contents of Ex.D1 goes against defendant. Hence, defendant cannot contend that Power of Attorney has not been executed in favour of Sri.Shankar P.Revankar.
13. The other contention of the appellant’s counsel that the Court below has directed to produce the original Power of Attorney vide order dated 03.08.2012 and the same has not been produced by the plaintiff and this Court has to draw an inference under section 114(g) of the Evidence Act. No doubt the proviso under section 114(g) provides that when the direction was given and when the party fails to comply with the order, the Court can draw an inference. The Court has to take note of the peculiar circumstances of the case before it and there is no dispute with regard to the said direction was issued on 03.08.2012 when the evidence was let in before the court. When the recital of Ex.D1 clearly says that original owner has executed Power of Attorney in favour of said Shankar P.Revankar, the defendant cannot play hot and cold saying that no such Power of Attorney was executed. I have already pointed out that the recital in the sale deed of the defendant itself shows that there is a mention that Power of Attorney was executed. The Power of Attorney would be in the custody of the Power of Attorney holder and not with the purchaser and Court also cannot direct the person who was not having document in his custody to produce the same. When there is a clear admission in Ex.D1 question of producing the same also does not arise.
14. The other contention of the learned counsel is that under section 33 of the Registration Act, Power of Attorney was not registered and no such power was delivered to the Power of Attorney holder to execute the sale deed. It has to be noted that in the cross- examination of DW.1, he has categorically admitted that there was no house when he purchased the property from the original owner. But he categorically admits that khata was recorded in the City Municipality in respect of the site Nos.11 and 12/21 and also mentioned possessory right in the said document and there was no cancellation of General Power of Attorney in the said document. He also further admits that in the cancellation letter of General Power of Attorney, no specific date is mentioned on what date the General Power of Attorney was cancelled and further he admits that the signature available in Ex.D11 and signature available in the sale deed are not tallying with each other.
15. It is pertinent to note that there were two sale deeds in respect of a particular property. There is no dispute with regard to the identity of the property. Plaintiff claims right based on the sale deed dated 13.02.2006 in terms of Ex.P1 and defendant claims the right based on Ex.D1 sale deed executed on 16.05.2006 in respect of the very same property. The scope of the suit for injunction is very limited. The Court has to take note whether plaintiff has been in possession as on the date of presentation of suit. The suit is filed in the year 2006. The plaintiff in order to substantiate his contentions, he has produced Ex.P1 to Ex.P21. Ex.P20 is the acknowledgement given by the police in respect of complaint given by the plaintiff and also copy of the complaint as Ex.P21. Plaintiff also relied upon document at Ex.P2 – Encumbrance Certificate. No doubt Ex.P2 marked recitals is shown as Rs.10,09,000/-. The appellant’s counsel also vehemently contends that when the value is shown as Rs.10,09,000/- yet Ex.P1 discloses only Rs.60,000/-. It is the contention of the plaintiff that when the Power of Attorney was executed in the year 1991 in favour of Sri.Shankar P.Revankar, the amount was only that much. In the sale deed of the year 2006 (Ex.D1) executed in favour of the defendant/appellant, the learned counsel would contend that the sale consideration is Rs.9,87,000/-. This Court is not deciding with regard to title and the sale consideration. The only question that has to be determined is, as on the date of the suit whether the plaintiff has been in lawful possession. Having considered the other documents Ex.P3 to Ex.P18 discloses that documents were standing in the name of Power of Attorney holder and also subsequent to the sale of the property in favour of the plaintiff, khata has been transferred. The main contention of the defendant/appellant’s counsel is that documents are standing in the name of Power of Attorney holder and it is rightly pointed out by the learned counsel appearing for the plaintiff that khata has not been challenged either by the original owner or by the subsequent purchaser and when such being the case, when the plaintiff has produced voluminous documents before the court in order to show that as on the date of filing the suit, he has been in possession, I do not find any error committed by the court below in appreciating the oral and documentary evidence. As title of the parties cannot be decided in a suit for bare injunction and the contention of the defendant that original owner Sri.Krishnappa did not execute Power of Attorney, but the recitals of document Ex.D1 shows with regard to execution of power of attorney by the original owner. It is important to note that defendant took the defence that original Power of Attorney has not been executed and when he relied on Ex.D10 and Ex.D11 contending that cancellation notice was given, the defendant ought to have examined the original owner before the Trial Court with regard to Ex.D11 and the same has not been done and also no document is placed before the Court to show that said Ex.D11 was served on the plaintiff. The right person to give evidence about Ex.D11 is the original owner and he has not been examined and it is the case of the plaintiff’s counsel that no specific date is mentioned either in the written statement or in any other document on what date Power of Attorney was cancelled and when such being the case, no explanation is forthcoming on the part of the defendant to show that how he got the possession of Ex.D10 and Ex.D11. The Trial Court also considered this aspect while answering issue No.1 before it.
16. Having considered the material on record, though the defendant claims that he got right based on the sale deed dated 16.05.2006 and denied the very power of attorney contending that no right was conferred upon the plaintiff, he has not filed any suit for cancellation of the sale deed on the ground that Power of Attorney was cancelled and based on the cancelled Power of Attorney, he has executed sale deed in favour of the plaintiff. The main contention of the plaintiff is that the defendant has interfered with the possession of the plaintiff and in order to substantiate the contention, he has also produced Ex.P19 and Ex.P20. The Court below also taken note of the claim made by the defendant that based on the sale deed Ex.D1, the defendant is claiming right and hence, I am of the opinion that the Court below has not committed any error in appreciating both the oral and documentary evidence available on record since the scope of the suit is only for bare injunction. Both the parties are claiming their respective rights based on the sale deed, one executed by the Power of Attorney holder and also another executed by the original owner and I have already pointed out that this Court cannot rely upon these documents and also consider the same since the suit is only for bare injunction and it is left open to the parties to file a comprehensive suit with regard to declaration. The plaintiff established the possession by relying upon the document that he has been in possession as on the date of suit and hence the question of reversing the finding of the trial court does not arise. The Court below has considered both oral and documentary evidence and rightly answered issue No.1 with the scope of the suit. Hence, I do not find any merit in the appeal.
17. In view of the discussions made above, I pass the following:-
ORDER Accordingly, the appeal is dismissed.
Sd/- JUDGE Bss.