IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2017 BEFORE THE HON'BLE MR. JUSTICE L NARAYANA SWAMY RFA NO.1012 OF 2010 (INJ) BETWEEN:
SRI YEDDULA CHINNAPPA REDDY AGED 44 YEARS SON OF YEDDULA RAYAPPA REDDY RESIDENT OF NO.61, MIGH HOUSING BOARD COLONY CUDDAPAH – 516 004 ANDHRA PRADESH REPRESENTED BY GPA HOLDER SRI B R HARISH AGED 50 YEARS SON OF LATE B N RAMACHANDRA RAO RESIDING AT NO.305, 9TH MAIN CANARA BANK COLONY NAGARBHAVI ROAD BENGALURU – 560 072 (BY SRI:M JAGADISH BALIGA, ADV) ...APPELLANT AND:
DR.SRISHAILAPPA A KASTHURI AGED 57 YEARS SON OF AYYAPPA KASTHURI RESIDING AT NO.420/57/2 14TH ‘A’ CROSS, 1ST BLOCK RAJAJINAGAR BENGALURU – 560 010 (BY SRI:J SATISH KUMAR, ADV) ...RESPONDENT THIS RFA IS FILED UNDER SECTION 96(1) READ WITH ORDER XXXLI RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.04.2010 PASSED IN OS NO.8053/2007 ON THE FILE OF THE XLI ADDL. CITY CIVIL JUDGE, BANGALORE CITY DECREEING THE SUIT FOR PERMANENT INJUNCTION.
THIS RFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant-defendant has preferred this appeal being aggrieved by the Judgment passed in OS No.8053/2007 on the file of the XLI Addl. City Civil Judge, Bengaluru dated 19.04.2010, decreeing the suit in favour of the plaintiff by restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property.
2. For the sake of convenience, the parties will be referred to as per their ranking in the suit.
3. It is the case of plaintiff that he has filed a suit for injunction in respect of the site bearing No.52, khata No.143 measuring 40 x 30 feet. The plaintiff states that he has purchased the property on 16.02.2004. The site belongs to the society and it has formed a layout and had executed a General Power of Attorney dated 19.10.1989 in favour of one M Narayanan. The said General Power of Attorney was coupled with an affidavit. Thereafter, the said M Narayanan in turn, executed the General Power of Attorney in favour of Moshina on 08.01.1990 and the said Moshina, in turn executed the General Power of Attorney to K S Kasthuri who is the wife of plaintiff on 28.05.1992 and further the said K S Kasthuri executed sale deed in favour of her husband on 16.02.2004. It is the further case of plaintiff that since from the date of purchasing the property, he is in possession of the same and as the defendant started interfering with the possession, he filed the complaint and also approached the Court for permanent injunction.
4. On service of notice, the defendant entered appearance and filed the written statement. It is his contention that originally the schedule property was owned by MEC Works Employees House Building Co-operative Society and that there was a dispute between the society and the land owners and the same came to be resolved in the year 2000 and after necessary formalities, the society has sold the property to the defendant. Hence, he is in possession of the property in question. He further contends that the court fee paid is insufficient. On all these grounds, he has prayed to dismiss the suit.
5. On behalf of the plaintiff, the plaintiff himself examined as PW1 and other witnesses as PWs.2 to 4 and marked the documents as per Exs.P1 to P20. On behalf of the defendant, the General Power of Attorney holder was examined as DW1 and marked the documents as per Exs.D1 to D4.
6. On the basis of pleadings of the respective parties, the Trial Court framed the following issues:
“1) Whether the plaintiff proves that he is in possession and enjoyment of the plaint schedule property as contended?
2) Whether the plaintiff proves that defendant is interfering with the peaceful possession and enjoyment of the plaintiff over plaint schedule property as alleged?
3) Whether the plaintiff is entitled for the relief of permanent injunction as sought?
4) What Order or Decree?”
After appreciating the evidence on record, issue Nos.1 to 3 have been answered in ‘Affirmative’ and issue No.4 as per the final order in decreeing the suit.
7. Heard the learned Counsel for appellant and the learned Counsel for respondent.
8. Learned Counsel for the appellant submits that the General Power of Attorney was executed in favour of one M Narayanan and there was no clause for further delegation of General Power of Attorney. But in the instant case, contrary to law, M Narayanan has executed the General Power of Attorney in favour of Moshina and Moshina further executed the same in favour of K S Kasthuri, who is the wife of plaintiff and K S Kasthuri, in turn executed the sale deed in favour of the plaintiff. Since there is no clause in the General Power of Attorney executed by the society for further execution of General Power of Attorney, the execution of the same is contrary to law.
In support of his submission, he relied on the judgment of the Hon’ble Supreme Court reported in AIR 2014 SC 630. At para 25, it is observed that – “whether the bearer of General Power of Attorney holder will have the power to further delegate the functions to another person would completely depend on the terms of General Power of Attorney. As a result, the authority to sub-delegate the functions must be explicitly mentioned in the General Power of Attorney. Otherwise, the sub-delegation will be inconsistent with the General Power of Attorney and thereby will be invalid in law. Nevertheless, the general power of attorney itself can be cancelled and be given to another person”.
In order to fortify his submission, learned Counsel referred to General Power of Attorney executed as per Ex.P3. In para 1 of the GPA, it is only stated that M Narayanan is entitled to appear before the Sub-Registrar concerned for registration of the property to get the sale deed/gift deed/lease deed etc., executed before the said authority. Hence, it is clear that the General Power of Attorney has no authority to sub-delegate his powers to others. The said General Power of Attorney is coupled with Ex.P4 – Affidavit. Even in the affidavit also, there is no express delegation of power or authority made in favour of M Narayanan to further delegate the general power of attorney to another person.
The learned Counsel has also relied on the evidence of PW2 in which he has deposed that there was a dispute between KIADB and the society with regard to portion of site No.52. Hence, subsequently, the society cancelled the allotment of sites. When the society itself has cancelled the allotment of site No.52 for which General Power of Attorney was executed in favour of M Narayanan, executing the sale deed from the wife of plaintiff to the plaintiff is contrary to law. When the principal has no power to execute the sale deed, the question of registering the sale deed does not arise. The General Power of Attorney executed in favour of M Narayanan has not been acted upon and it is only as good as surrender of GPA since the GPA itself has been cancelled by which site No.52 was sold in favour of M Narayanan.
The learned Counsel also relied on the evidence of PW4, the president of society who has deposed in the cross examination that he gave resignation in the year 1996 and after resignation, the matter was settled between KIADB and society. This itself shows that there was dispute between KIADB and society. The General Power of Attorney with regard to site No.52 was executed before the dispute had arisen. According to him, before his resignation the GPA was executed and after his resignation the dispute was settled. No fresh GPA was executed, thereafter. Based on the cross examination of PW2, 25% portion of suit property i.e., site No.52 belongs to the KIADB. Then, subsequently the society cancelled the allotment of sites.
He further submitted that the defendant purchased the property by the society as per Ex.D2 – the original sale deed dated 24.06.2006. The sale deed is a genuine sale deed which is registered one and on the basis of this document, he is in possession of the suit schedule property. When such being the case, the claim made by the plaintiff is not based on any valid document. There is inconsistency in respect of place in which site No.52 situated and also General Power of Attorney. In the schedule property as described in the suit, it is mentioned as the property situated in Laggere village, whereas in GPA, it is mentioned as it was situated in Peenya. The plaintiff himself has to find whether it was situated in Peenya or Laggare. Since there was a dispute pending between the KIADB and the society with regard to boundaries, more particularly, in site No.52 till it is resolved in 1997 and since GPA was cancelled, the question of executing and transferring the property in favour of plaintiff does not arise.
It is his further submission that when there is a cloud with regard to ownership, simply filing the suit for injunction would not be sufficient, he has to file the suit for declaration. As long as the cloud is clear, the question of granting or considering the relief of injunction does not arise. For the said purpose, he has relied on the judgment of Supreme Court in the case of Anathula Sudhakar Vs P Buchi Reddy (dead) by Lrs and others [(2008) 4 SCC 594] and submits that - such complicated question can be examined only in a suit for declaration and not in a suit for injunction. In the instant case also, there is much cloud against the plaintiff’s claim. He also relied Section 34 of The Karnataka Stamp Act, 1957 for payment of stamp duty. The requisite stamp duty was not paid, hence, the suit was not maintainable in the eye of law. Accordingly, on all these grounds, the learned Counsel for the appellant prays to allow the appeal by setting aside the Judgment of the Trial Court.
9. Learned Counsel for the respondent-plaintiff prays to dismiss the appeal. He submits that on the basis of pleadings, the issues were framed and decided according to law. If the defendant was aggrieved or if he wants the Court to frame additional issue, nothing prevented him from filing an application for re-casting the issue. Since he has not filed any application, the question of raising such ground before this Court does not arise. If he has filed an application for re-casting the issue and if application is allowed by the Court, then he could have made necessary application for amendment of prayer seeking declaratory relief. Since the defendant has not chosen to file any application with regard to re-casting or framing of issues, the question of seeking the said relief does not arise.
It is his further submission that the Court conclusively answered the issues framed by it on the basis of evidence and materials available on record and it is not open for the defendant to urge a new issue before this Court. He submits that the defendant could have made an application even here also, but he has not chosen to do so. He further submits that the Ex.P3 - GPA is coupled with Ex.P4 – Affidavit and it has been executed by all the office bearers of society. In the affidavit at para 4, it is stated that the schedule property has been sold for consideration amount of Rs.62,550/-. When such being the case, it is the society who has created interest or interest accrued in favour of the plaintiff. As per the affidavit, the suit property was sold at Rs.62,550/- and the amount was collected by all the office bearers of society. When such being the case, the cancellation of allotment of site and further cancellation of GPA has no base at all. Since Exs.P3 and P4 confer interest on the plaintiff for the purpose of Sections 202, 201 and 206 of the Indian Contract Act, it is the submission of the learned Counsel for the respondent-plaintiff that he should have been issued notice since he has got interest over the property and since he has paid entire consideration amount. Consequently, under Section 206 of the Indian Contract Act, notice of revocation should have been issued, but no such notice has been issued to the plaintiff or any of its vendor or GPA holder.
In support of his case, he relied on the judgment of Supreme Court in the case of Suraj Lamp and Industries Private Limited Vs State of Haryana and another [(2012) 1 SCC 656]. At para 20, it is observed thus:
“20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.”
In view of the submission made by the defendant with regard to clouds in respect to title of property, learned Counsel relied on the judgment of Hon’ble Supreme Court in the case of Anathula Sudhakar Vs P Buchi Reddy (dead) by Lrs and others [(2008) 4 SCC 594]. At paras 14 and 16, it is observed thus:
“14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff’s title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property.
On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff’ title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the Court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
16. In such a situation, where the title is clear and simple, the Court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction,. The proper course is to relegate the plaintiff to the remedy of a full- fledged suit for declaration and consequential relief’s.”
The learned Counsel further submits that the stamp duty paid is insufficient under Section 34 of the Karnataka Stamp Act. Hence, on all these grounds, he prays to dismiss the appeal.
10. On hearing both the learned Counsels, the point that arises for my consideration is:
“1) Whether the Court below committed an error in decreeing the suit?
2) Whether the Court committed an error in not framing proper issues on the basis of pleadings?
11. My answer to the above points is as follows:– The facts are not in dispute. The society has executed the General Power of Attorney in favour of one M Narayanan on 19.10.1989 as per Ex.P3. It is not merely a GPA, but it is coupled with an Affidavit as per Ex.P4. In the Ex.P4 – affidavit, all office bearers of the society including the President, Secretary and Treasurer have executed Exs.P3 and P4. In the affidavit at para 4 they have stated that they sold the schedule property for a sum of Rs.62,550/- and on receiving the said sum by cash from M Narayanan, there is no due from him, they further declared that they will register the schedule site when the Government opens its provisions and when the purchaser will demand for the registration before the concerned. The registration and stamp duty shall be payable by the purchaser.
12. By reading both Exs.P3 and P4, it discloses that all the office bearers have admitted the amount of transfer of property by executing the sale deed in favour of M Narayanan. It is not merely a General Power of Attorney, but it is coupled with an affidavit from which, it is clear that it is a sale deed and the consideration amount of Rs.62,550/- has been paid and the GPA has been executed by all the office bearers of society. It is a irrevocable GPA and the said M Narayanan gets all power and he need not secure any authority from the principal for the purpose of further delegation. As things stood thus, he has further delegated or executed the GPA in favour of Moshina on 08.01.1990 as per Ex.P5. The said Moshina in turn executed the general power of attorney in favour of K S Kasthuri, the wife of plaintiff. This transaction shows that the society has sold the property to M Narayanan by executing GPA and affidavit and the said M Narayanan has got interest in respect of the property. When the interest is involved in the schedule property, he has got right to transfer the property by executing GPA to Moshina and Moshina in turn to the wife of plaintiff and the wife of plaintiff executed the sale deed in favour of the plaintiff. It is under these circumstances, when irrevocable General Power of Attorney is executed in favour of M Narayanan, since the interest has been created in it, there should have been a compliance under Sections 202, 201 and 206 of the Indian Contract Act.
13. PW2 was the Director of society. In his cross examination, he has deposed that there was a dispute between KIADB and the society. He has stated that about 25% portion of suit schedule property i.e., site No.52 was within the limits of KIADB and the said dispute was resolved in the year 1997. He has further deposed in the cross examination that subsequently the society cancelled the allotment of sites. Though he has pleaded that the allotment of sites has been cancelled and also the dispute has been resolved before the Court, the evidence of PW2 is of no help. If at all, there was a cancellation of allotment of sites by the society by virtue of dispute, he has not produced any document to such effect and he has not examined any witness on behalf of KIADB.
14. PW4 who is the President of society as on the date of execution of sale deed is also a party in Exs.P3 and P4. In his cross examination, he has deposed that the society formed layout and sold the sites to MEC Employees. Mr.Narayanan S/o Khalappa Kurup is one of the employees of MEC and he was also allotted a site by the MEC Works Employees House Building Co-
operative Society Limited. This evidence discloses that what was executed as per Exs.P3 and P4 is only a General Power of Attorney, which is also coupled with an affidavit and it is not a sale deed. He has further deposed that the said M Narayanan sold the said property to Moshina and the said Moshina in turn sold the same to K S Kasthuri, the wife of plaintiff. He has further deposed that what was executed in GPA is nothing but the sale. This evidence is helpful to the plaintiff, since PWs.3 and 4 have deposed that they have executed Ex.P3 and they have also stated in the affidavit Ex.P4 that they have collected Rs.62,550/ from M Narayanan in whose favour GPA was executed and they are in possession of the property since from the date of execution of sale deed and they have established the same by producing Exs.P11 to 13 - tax paid receipts and Exs.P17 to 20 – copy of complaint, receipt issued by police and two photographs.
15. The learned Counsel for the appellant-defendant submits that there was a cloud in respect of title of property of the plaintiff. But the same was not explained before the Court since there was no such issues framed by the Court below. For the purpose of framing issues, it is for the Court to form an opinion as to what are the issues to be framed for the purpose of resolving the dispute after examining pleadings of respective parties. The Court must have felt that the issues framed in the suit were sufficient. When the issues were framed and allowed the parties to defend their case, nothing prevented the defendant from making necessary application for framing or re- casting of the issues. The appellant-defendant has not chosen to make such application, from which an inference could be drawn that he was satisfied with the issues framed for resolving the dispute. When he has not taken such steps to make application for re-casting or framing of issues, it is not open for him to make such submission. Though RFA is continuation of suit, it was open for the defendant to make such application before this Court for framing of issues, but no such application is filed. Accordingly, it is not for this Court to answer to the said question.
Accordingly, the points taken for disposal of this matter have been answered against the appellant and the appeal has to be dismissed.
Consequently, the appeal is dismissed.
Sd/- JUDGE *bgn/-