Karnataka High Court
Abdul Hamid Haji Abdul Rehman vs Sudarshan W/O Srinivas David And Anr on 22 November, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.200136/2016 (INJ)
C/W
RSA NOS.200135/2016 & 200189/2016 (INJ)
RSA NO.200136/2016
BETWEEN
ABUDL HAMID HAJI ABDUL REHAMAN
AGE: 46 YEARS, OCC: BUSINESS
R/O:CTS NO:43/A OF WARD NO.V VIJAYAPUR
TQ & DIST:VIJAYAPUR-586101
...APPELLANT
(BY SRI GURUDAR KANNOR SR. COUNSEL FOR
SRI PATIL SHRINIVAS BASAVANTRAO AND
SRI VINAYAK APTE, ADVOCATES)
AND
1. WILSON SRINIVAS DAVID
AGE: 51 YEARS, OCC:MEDICAL
PRACTITIONER, R/O: MISSION COMPOUND
NEAR BUS STAND
TQ & DIST: VIJAYAPUR-586101
2. VIJAY SRINIVAS DAVID
AGE: 48 YEARS, OCC: BUSINESS
R/O: MISSION COMPOUND,
NEAR BUS STAND
TQ & DIST: VIJAYAPUR-586101
2
3. SRINIVAS DAVID
SINCE DEAD BY LRs.
I.E., RESPONDENT NOS.1, 2 & 4
4. SUDARSHANA SRINIVAS DAVID
AGE: 73 YEARS, OCC: H.H.WORK
NEAR BUS STAND
TQ: & DIST: BIJAYAPURA-586101
...RESPONDENTS
(BY SRI D.P.AMBEKAR, ADVOCATE FOR R2 TO R4;
R1 SERVED; R3 DEAD AND HIS LRs. ARE R1, R2 & R4)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
29.02.2016 PASSED IN R.A.NO.28/2008 ON THE FILE OF THE
COURT OF THE III ADDL. SENIOR CIVIL JUDGE, VIJAYAPUR AND
TO DECREE THE SUIT OF PLAINTIFF BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 31.01.2008 PASSED IN
O.S.NO.340/2003 ON THE FILE OF III ADDL. CIVIL JUDGE
(JR.DN.) VIJAYAPUR.
RSA NO.200135/2016
BETWEEN
ABDUL HAMID HAJI ABDUL REHMAN
AGE: 46 YEARS, OCC: BUSINESS,
R/O A.P.BUILDING NEAR MOSQUE,
CHANDAPUR COLONY, IBRAHIMPUR,
VIJAYAPUR, TQ: & DIST. VIJAYAPUR - 586101
...APPELLANT
(BY SRI GURUDAR KANNOR SR. COUNSEL FOR
SRI PATIL SHRINIVAS BASAVANTRAO AND
SRI VINAYAK APTE, ADVOCATES)
AND
1. SUDARSHAN W/O SRINIVAS DAVID
AGE: 73 YEARS, OCC:RETIRED TEACHER,
R/O MISSION COMPOUND,
3
TQ: & DIST. VIJAYAPUR - 586101.
2. VIJAYAKUMAR SOLOMON
S/O SRINIVAS DAVID
AGE: 48 YEARS, OCC: ADVOCATE,
R/O MISSION COMPOUND,
TQ & DIST. VIJAYAPUR - 586101.
3. WILLIAM PRABHAKAR GUNDI
AGE: 49 YEARS, OCC: BUSINESS,
R/O BASSEL MISSION COMPOUND,
VIJAYAPUR, NOW R/O NEAR RAM MANDIR,
BETAGERI, TQ: & DIST. GADAG
...RESPONDENTS
(BY SRI D.P.AMBEKAR, ADVOCATE FOR R1 & R2;
SRI BHEEMARAYA M.M., ADVOCAET FOR R3)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
29.02.2016 PASSED IN R.A.NO.29/2008 ON THE FILE OF THE
COURT OF THE III ADDL. SENIOR CIVIL JUDGE, VIJAYAPUR AND
TO DISMISS THE SUIT OF PLAINTIFFS BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 31.01.2008 PASSED IN
O.S.NO.357/2003 ON THE FILE OF III ADDL. CIVIL JUDGE
(JR.DN.) VIJAYAPUR.
RSA 200189/2016
BETWEEN
SRI WILLIAM S/O. PRABHAKAR GUNDI
AGED ABOUT 48 YEARS, OCC: BUSINESS
R/O. BASSEL MISSION COMPOUND
VIJAYAPURA
...APPELLANT
(BY SRI MALLIKARJUN C. BASAREDDY, ADVOCATE)
AND
1. SRI DARSHAN S/O SRINIVAS DAVID
AGED ABOUT 73 YEARS, OCC: H.H.WORK
4
2. SRI. VIJAYA KUMAR SOLOMAN
S/O. SRINIVAS DAVID
AGED ABOUT 48 YEARS, OCC: ADVOCATE
BOTH RESIDING AT BASSEL
MISSION COMPOUND, VIJAYAPURA
3. SRI ABDUL HAMID
S/O HAJI ABDUL REHMAN
AGED ABOUT 46 YEARS,
OCC: BUSINESS,
R/O A.P. BUILDING NEAR MOSQUE
CHANDAPUR COLONY
IBRAHIMPUR, VIJAYAPUR
...RESPONDENTS
(BY SRI D.P. AMBEKAR, ADVOCATE R1 & R2;
SRI VINAYAK APTE, ADVOCATE FOR R3)
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 29.02.2016, PASSED IN R.A.
NO.23/2008, ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE AT VIJAYAPURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
31.01.2008, PASSED IN O.S. NO.357/2003, ON THE FILE OF
THE III ADDL. CIVIL JUDGE (JR.DN.), BIJAPUR.
THESE APPEALS ARE COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These three captioned second appeals arise out of common judgment rendered in O.S.Nos.340/2003 and 357/2003. RSA No.200135/2016 is filed by defendant No.1 questioning the judgment and decree 5 passed in O.S.No.357/2003 and R.A.No.29/2008, RSA No.200136/2016 is filed by the plaintiff in O.S.No.340/2003, who is defendant No.1 in O.S.No.357/2003 questioning dismissal of suit for bare injunction in O.S.No.340/2003 and RSA No.200189/2016 is filed by defendant No.2, who is a GPA holder questioning the judgment and decree passed in O.S.No.357/2003, wherein GPA by defendant No.2 is held to be null and void document and also consequential lease deed executed by defendant No.2 - GPA holder.
2. For the sake of brevity, the parties are referred to as per their ranks in O.S.No.357/2003.
3. The plaintiffs instituted suit in O.S.No.357/2003 seeking relief of declaration that the lease deed dated 22.01.2003 and power of attorney dated 10.10.2010 alleged to have been executed by 6 United Bassel Mission Church Trust as void and non-est and for perpetual injunction to restrain the defendants from putting up construction and running a hotel in the suit property. While defendant No.1 filed a bare suit for injunction in O.S.No.340/2003, who claims that under valid GPA, a lease is executed in his favour for a period of 99 years and pursuant to lease, he has put up construction by investing huge amount and he is running a hotel and therefore, he sought for relief of perpetual injunction.
4. While the plaintiffs in O.S.No.357/2003 contended that trustees, who have executed GPA were not the trustees and the change report is accepted by Charity Commissioner was rightly set aside by the appellate authority in Misc.A.Nos.38/1990 and 39/1990. Therefore, the plaintiff contended that the lease deed which is in contravention of the provisions of Bombay Public Trusts Act, 1950 (for short 'BPT Act') 7 is void and non-est document and therefore, sought for declaration to declare that the power of attorney dated 10.10.2010 as null and void and consequently lease deed executed in favour of defendant No.1 dated 21.01.2003 as illegal, void, non-est and not binding on the trust.
5. The plaintiffs to substantiate their claim let in oral and documentary evidence. The defendant No.1 has let in oral evidence and has also produced rebuttal documentary evidence to substantiate his defence. Defendant No.2, who has executed the lease deed based on a GPA has not chosen to contest the proceedings by filing written statement.
6. Both the suits are clubbed and trial Court having examined the material on record answered issue Nos.1 to 3 in the affirmative. The trial Court held that the plaintiffs have succeeded in proving that 8 power of attorney dated 10.10.2010 executed in favour of defendant No.1 is null and void and therefore, by answering issue No.2 in the affirmative held that lease deed executed by defendant No.2 in favour of defendant No.1 is illegal, void and non-est. The trial Court answered issue Nos.1 to 3 in O.S.No.340/2003, which was one for bare injunction in the negative. The trial Court held that defendant No.1 has failed to prove his lawful possession and alleged obstruction. The contention of defendant No.1 that plaintiffs' suit is not maintainable without seeking relief of declaration was also answered in the negative. Consequently, suit was dismissed.
7. Feeling aggrieved by the judgments of the Courts below, defendant No.1 preferred two appeals questioning the judgment and decree in O.S.No.357/2003 in R.A.No.29/2008 and feeling aggrieved by dismissal of bare suit for injunction, 9 defendant No.1 preferred an appeal in R.A.No.28/2008. The defendant No.2, who has not chosen to file written statement, also preferred an appeal questioning the judgment and decree passed in O.S.No.357/2003 in R.A.No.23/2008.
8. The appellate Court has exhaustively dealt with voluminous evidence on record. The evidence has been independently assessed by the appellate Court. All the three appeals are clubbed together and the appellate Court having assessed the oral and documentary evidence has also recorded a finding that the lease deed executed by defendant No.2 in favour of defendant No.1 contravenes the provisions of Section 36 of BPT Act. The appellate has culled out Section 36 of BPT Act at paragraph No.63 of its judgment. Referring to Section 36 of BPT Act, the appellate Court held that admittedly lease being in excess of 3 years, which is intended to be for non 10 agricultural purpose and same is executed without previous sanction of the Charity Commissioner. Therefore, lease deed is held to be in contravention of Section 36 of BPT Act. Consequently, the appellate Court also held that lease deed is ab initio. On these set of reasonings, the appellate Court has dismissed all the three appeals.
9. Feeling aggrieved by the common judgment rendered in all three appeals, defendant No.1 has preferred two appeals in RSA No.200136/2016 and RSA No.200135/2016 and defendant No.2 has filed RSA No.200189/2016.
10. Learned Senior Counsel Sri Gurudar Kannor reiterating the grounds urged in RSA No.200136/2016 and RSA No.200135/2016 has strenuously argued and contended that the possession was handed over to defendant No.1 under valid document and therefore, 11 defendant No.1 having secured possession pursuant to lease deed executed by the authorized persons has invested money and therefore he would contend that the present suit seeking relief of declaration and injunction is not at all maintainable. He would contend that the plaintiffs cannot maintain the relief sought in the plaint in absence of relief of possession.
11. In regard to the genuineness of GPA, he would point out that new trustees who were elected under due process and the constitution of new committee was conveyed to the Assistant Charity Commissioner and the change in committee was duly reflected in PTR and therefore, he would contend that the transferees who were authorized to deal with the trust property has rightly executed a general power of attorney in favour of defendant No.2 and therefore, consequent lease in favour of defendant No.1 creates valid right in favour of defendant No.1. He would 12 further contend that pursuant to lease, defendant No.1 with a bonafide intent has put up construction and therefore, at this juncture if the lease deed is set at naught that would cause irreparable loss to defendant No.1. Therefore, he would contend that having regard to the facts and circumstances of the case, the equities would obviously lean in favour of defendant No.1 and therefore, his possessive rights have to be protected till the plaintiffs seek recovery of possession in the manner known to law. On these set of grounds he would contend that the appeals need re-consideration and therefore, these appeals are to be admitted by formulating substantial question of law in that regard.
12. Learned counsel appearing for the appellant in RSA No.200189/2016 arguing in the same vein would contend that there was a valid authorization in favour of defendant No.2 and 13 therefore, the lease executed by defendant No.2 in favour of defendant No.1 binds the interested parties as well as the trust and therefore, the lease which is created for a period of 99 years cannot be prematurely terminated. On these set of grounds, he would contend even connected RSA No.200189/2016 needs re-consideration and substantial question of law arises for consideration.
13. Per contra, learned counsel appearing for the plaintiffs repelling the contention canvassed by the learned Senior Counsel and learned counsel appearing for defendant No.2 would however, contend that the GPA executed in favour of defendant No.2 does not confer any right on defendant No.2. Placing reliance on Sections 32 and 33 of the Registration Act, he would point out that document is not admissible in evidence for want of registration. He would further 14 point out that Clause 11(v) of GPA which is marked as Ex.P.29 clearly contemplates that defendant No.2/agent shall seek permission from the executant before proceeding to execute any registered document. He would content that both the condition are violated. Firstly, the GPA for want of registration cannot be looked into. Secondly, even otherwise contrary to recitals at Clause 11(v), defendant No.2/agent has acted in contravention of restriction imposed on him at Clause 11(v). If this document is held to be void, then the consequence would follow. He would further point out that defendant No.2 could not have created lease in excess of three years as there is clear bar under Section 36 of BPT Act and therefore, he would contend that the judgment and decree rendered by the Courts below are in accordance with law. The Concurrent findings recorded by both the Courts do not suffer from any 15 infirmities and hence, requests this Court to dismiss the appeals.
14. Heard the learned counsel for the parties. I have given my anxious consideration to the judgment rendered in all three appeals.
15. Both the Courts have concurrently held that GPA executed by the so called trustees in favour of defendant No.2 is a void document. Both the Courts referring to the clinching evidence let in by the plaintiffs vide Ex.P.3 which are orders passed in appeal Nos.17/1989 and 20/1989 have held that the change in committee has been set aside by the appellate authority. If the new trustees who were asserting rights have suffered an order at the hands of appellate authority, which has attained finality, then the consequent GPA by the said trustees who have suffered an order at the hands of appellate authority in appeal No.17/1989 and 20/1989 would render very 16 document as a void document. Therefore, both the Courts were justified in holding that Ex.P.29 which is alleged GPA executed in favour of defendant No.2 as a null and void document.
16. As rightly pointed out by the learned counsel for the plaintiffs this Court would also find that the GPA was executed to present the lease deed before the sub-Registrar and therefore, the agent will acquire competency provided the GPA is registered under Section 33 of the Registration Act. I find some forces in the submission made by the learned counsel appearing for the plaintiffs. Even on this count the GPA has to be rendered as a void document. The third ground on which the GPA document is found to be void document is that there is a condition imposed in the GPA that in the event agent meddles with the property has to seek prior permission from the executant. The said aspect is not forthcoming from 17 the records. Even on this count the GPA dated 10.10.2010 has to be rendered as a void document.
17. The lease deeds vide Ex.D.5 and 6 have come into existence based on the GPA. Under the lease, defendant No.2 has created a lease for a period of 99 years. The lease period contemplated in these two disputed documents clearly violates and contravenes Section 36 of the BPT Act. Both the Courts have dealt with this aspect and have come to the conclusion that on account of contravention, the lease deeds are held to be void documents.
18. If both the documents do not create any right in favour of defendant No.1, then relief of declaration and consequential relief of injunction sought by the plaintiffs is very much entertainable. The material on record clearly indicates that the subject matter of the suit was vacant site and pending suit, defendant No.1 was permitted to put up 18 construction. The permission was granted in the light of undertaking tendered by the defendant No.1. Defendant No.1 has given undertaking that he may be permitted to put up construction and further there is a declaration in the said undertaking, wherein defendant No.1 has clearly undertaken that he will not claim equity, if plaintiff succeeds in the suit. Therefore, the construction which was put up in the vacant site during pendency of suit was subject to undertaking tendered by defendant No.1. It is in this background, this Court is of the view that the relief of declaration of injunction is very much maintainable. The relief sought in the present suit has to be also examined in the context of memo of undertaking filed by defendant No.1 during pendency of the suit. The memo of undertaking given by defendant No.1 clearly indicates that he has undertaken to demolish the structure if he fails in the suit. Therefore, if defendant No.1 has 19 unconditionally tendered an undertaking, then he is bound by the undertaking. In view of the observations made in the preceding paragraph, this Court is of the view that the findings recorded by both the Courts on GPA vide Ex.P.29 and the lease deeds at Ex.D5 and 6 are in accordance with law. The findings and conclusions recorded by both the Courts are based on legal evidence let in by the plaintiffs. Both the Courts have held that GPA is void document. Both the Courts have concurrently held that the lease is executed in contravention of Section 36 of the BPT Act and therefore, no substantial question of law arises for consideration.
Accordingly, all the appeals are dismissed.
19. At this juncture, learned Senior Counsel would request this Court to grant some more time to defendant No.1. Having regard to the fact that defendant No.1 has put up construction, this Court 20 deems it fit to grant one year time to handover vacant possession to the plaintiffs. This concession granted by this Court is available to defendant No.1 only if he accepts the judgment and decree rendered by this Court. In the event, defendant No.1 challenges the judgment and decree of this Court, then he is not entitled for this concession.
In view of disposal of the main matters, pending interlocutory applications, if any, does not survive for consideration.
Sd/-
JUDGE Srt/RSP