Karnataka High Court
Matilda D Lima Late G.L.D Lima vs Khaja Bee W/O Late S Abdul Rasheed on 3 February, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA.NO.5858/2012 (PI)
BETWEEN
1. MATILDA D LIMA LATE G.L.D LIMA,
AGE: 73 YEARS,
2. SUNITHA JOYCE D'LIMA W/O LATE KIRAN D'LIMA,
AGE: 39 YEARS, OCC: HOUSE WIFE,
R/O: VAILANKINI VILLA, CHURCH ROAD,
KONDAPURAM, DIST: UDUPI.
3. SHERWIN KELTH D'LIMA
S/O LATE KIRAN D'LIMA,
AGE: 16 YEARS, MINOR,
4. SAMUEL ALOSIUS D'LIMA S/O LATE KIRAN D'LIMA,
AGE: 4 YEARS, MINOR,
APPELLANTS 3 AND 4 ARE MINOR
REPTD., BY MOTHER AND NATURAL GUARDIAN SUNITHA
JAYCE D'LIMA W/O LATE KIRAN D'LIMA ,
AGE: 39 YEARS, OCC: HOUSE WIFE,R/O: VAILANKINI VILLA,
CHURCH ROAD,KONDAPURAM, DIST: UDUPI.
... APPELLANTS
(BY SRI.ANANDKUMAR A.MAGADUM, SMT.ARCHANA MAGADUM AND
SRI. A.P.MURARI, ADVS.)
AND
1. KHAJA BEE W/O LATE S ABDUL RASHEED,
AGE: 93 YEARS,
2
2. S IQUBAL HUSSAN
S/O LATE S ABDUL RASHEED,
AGE: 68 YEARS,
3. S ABDUL HYE
S/O LATE S ABDUL RAZAK,
AGE: 66 YEARS,
4. SULTHAN SALLAUDDIN
S/O LATE ABDUL RAZAK,
AGE: 66 YEARS,
ALL ARE R/O: DOOR NO. 211,
7TH WARD,
PARTHAKANDAKANI STREET,
BRUCEPET,BELLARY.
... RESPONDENTS
(BY SRI.K.RAGHAVENDRA RAO & SMT.V.VIDYA, ADVS. FOR R1 & R2,
R3 SERVED; R4 APPAL DISMISSED)
THIS APPEAL IS FILED UNDER 100 OF C.P.C., AGAINST THE
JUDGEMENT & DECREE DTD:17.03.2012 PASSED IN R.A.N0.142/2009
ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT -III
AT HOSPET, DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT DTD:06.08.2009 AND THE DECREE PASSED IN O.S.
NO.30/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DVN), AT
KUDLIGI, DISMISSING THE SUIT FILED FOR PERMANENT
INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This captioned regular second appeal is filed by unsuccessful plaintiffs being aggrieved by the concurrent judgment and decree of the courts below wherein both the courts below have dismissed the suit filed by the appellants/plaintiffs.
2. Brief facts of the case are that:
Appellants/plaintiffs filed a bare suit for injunction in O.S.No.30/2007. The appellants/plaintiffs contended that suit schedule properties were originally owned by one Soudagar Abdul Razaak Saheb. The appellants/plaintiffs further contended that said Soudagar Abdul Razaak died leaving behind his children who are co-owners of the suit schedule property. The appellants/plaintiffs further contended that said Soudagar Abdul Razaak died on 22.09.1990. The appellants/plaintiffs contended that due to difference in the family, a suit came be filed in O.S.No.17/1976 pertaining to the suit schedule property 4 and also other properties. The appellants/plaintiffs claim that present suit property was allotted to Abdul Rasheed's share pursuant to a compromise recorded in the suit stated supra. In terms of compromise, Abdul Rasheed was appointed as receiver of the suit schedule properties. The appellants/plaintiffs have further contended that said Abdul Rasheed with the concurrence of his brothers obtained a mining lease on 04.04.1986 and later he entered into an agreement on 15.09.1986 with defendant No.5 thereby authorizing defendant No.5 to carryout mining operations on behalf of family of Abdul Rasheed. The appellants/plaintiffs have further contended that Power of Attorney dated 14.9.1986 in favour of defendant No.5 was coupled with interest. The appellants/plaintiffs contended that due to unavoidable circumstances, defendant No.5 was not in a position to personally carryout acts, he was not in a position to invest money for mining purpose.
Therefore, the appellants/plaintiffs claim that they thought of appointing suitable agent and accordingly, appointed 5 husband of plaintiff No.1 and father of plaintiff No.2 as his agent and executed Power of Attorney on 17.10.1986. Therefore, the appellants/plaintiffs contended that it is in terms of authorization given by deceased defendant No.5 during his lifetime, the suit schedule property was delivered to the present plaintiff.
3. The grievance of the appellants/plaintiffs is that in spite of specific demand and requests, the original licencee i.e., Abdul Rasheed failed to secure permission from the forest department to carryout mining operations and in between Abdul Rasheed died leaving behind defendant Nos.1 and 2 as his legal heirs. It is also contended that husband of plaintiff No.1 also died on 26.12.2004. Therefore, the present appellants/plaintiffs were stepped into the shoes of G.L.D'Lima and requested the defendants to perform their part of agreement. The appellants/plaintiffs further contended that they are ever ready and willing to perform their part of obligation under 6 the agreement executed by late Abdul Rasheed. The present suit is filed on an apprehension that defendants are negotiating with private parties by suppressing the agreement dated 15.09.1986 executed in favour of defendant No.5.
4. On receipt of summons, respondent Nos.1 and 2 appeared and contested the proceedings and stoutly denied the entire averments made in the plaint. Respondent Nos.1 and 2 specifically disputed the alleged authorization given by defendant No.5 in favour of husband of plaintiff No.1 as per Ex.P6. Respondent Nos.1 and 2/defendant Nos.1 and 2 further specifically contended that Power of Attorney if any executed by defendant No.5 in favour of husband of plaintiff No.1 would stand terminated on account of death of defendant No.5 and also on account of death of husband of plaintiff No.1 in whose favour the authorization was given by defendant No.5 under Ex.P6. The trial court having assessed oral and documentary evidence has 7 answered issue Nos.1 and 2 in the negative by recording a categorical finding that appellants/plaintiffs have failed to prove their lawful possession over the suit schedule property. Infact having examined ocular evidence of P.W.1, the trial court found that plaintiffs are totally ignorant about the transaction between the original mining lessee namely, Abdul Rasheed in whose favour the mining lease was issued. The trial court was also of the view that Abdul Rasheed was not the absolute owner of the property. Further, the trial court has taken judicial note of admission given by P.W.1 wherein he has admitted in unequivocal terms that his father was not conducting mining operations in the suit schedule property as he was not allowed to carryout mining operations. Therefore, in this background, the trial court was of the view that the ingredients to seek injunction is to establish lawful possession as on the date of the suit and burden is also on the plaintiff to prove alleged interference. Both these elements were found 8 missing by the trial court. Therefore, the trial court proceeded to dismiss the suit.
5. The present appellant preferred an appeal before the first appellate court. The first appellate court having independently assessed oral and documentary evidence on record found that both Abdul Rasheed who had authorized defendant No.5 under Ex.P3 and also husband of plaintiff No.1 who was authorized by defendant No.5 under Ex.P6 are no more. The first appellate court having meticulously examined the material on record also found that the plaintiff who is examined as P.W.1 was not at all aware of the earlier transactions and therefore, the first appellate court has also come to the conclusion that plaintiffs are not in lawful possession of the suit schedule property. On these set of reasoning, the first appellate court has proceeded to dismiss the appeal.
6. It is against these concurrent judgments and decree of the courts below, the present appeal is filed. 9
7. Learned counsel for the appellants would vehemently argue and contend before this court that General Power of Attorney executed by Abdul Rasheed in favour of defendant No.5 on 15.09.1986 was coupled with interest and therefore, death of principal would not in itself terminate the GPA, as it was coupled with interest and would clearly fall within the domain of Section 202 of the Indian Contract Act. She would further argue and contend before this court that though there is further delegation by defendant No.5 by executing GPA in favour of husband of plaintiff No.1 as per Ex.P6, the said authorization would not be invalid, as it was ratified by Abdul Rasheed during his lifetime. On these two grounds, she would submit to this court that both the courts below have not examined clinching evidence, which is placed on record by the plaintiffs. Therefore, she requests this court that substantial question of law would arise in the present case on hand and warrant interference at the hands of this court.
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8. However, learned counsel for the respondents repelling the contentions canvassed by the counsel appearing for the appellants would submit to this court that original principal who authorized defendant No.5 under Ex.P3 has died on 22.09.1990. She would further vehemently argue and contend before this court that rebuttal clinching evidence let in by the respondents/defendants would clearly indicate that husband of plaintiff No.1 was never put in possession over the property in question. She would brought to the notice of this court that authorization given by Abdul Rasheed in favour of defendant No.5 would automatically stands terminated on account of death of Abdul Raheed. Further, the authorization given by defendant No.5 in favour of husband of plaintiff No.1 would also stands terminated. In this background, she would submit to this court that appellants/plaintiffs have no legal right to lay claim over the suit schedule property. She would further submit to this court that both the courts have held that 11 appellants/plaintiffs are not in lawful possession and therefore, the said finding cannot be interfered with under Section 100 of CPC.
9. Heard the learned counsel for the appellants, learned counsel for the respondents and pursed the judgments under challenge.
10. Original principal who authorized defendant No.5 under Ex.P3 died on 22.09.1990. Defendant No.5 based on Ex.P3 has further executed GPA in favour of husband of plaintiff No.1 who is also reported to be dead and he died on 26.12.2004. Though learned counsel for the appellants has vehemently argued and contended that Ex.P3 is coupled with interest however, on perusal of the same, this court would find that under Ex.P3 Abdul Rasheed has authorized defendant No.5 to carryout mining operations. The terms of agreement clearly indicate that defendant No.5 was required to carryout mining and secure contract for sale of iron and manganese ore for maximum 12 quantity in his own account. Under Clause 4 of the agreement, defendant No.5 was also required to supply iron ore and manganese after mining and transport at his own cost and thereafter pay the mine owner, consideration at Rs.5/- per tonne. Defendant No.5 was also required to pay the government royalty after carrying out mining. Defendant No.5 was also authorized to collect and receive payment for having supplied the mined ore under the contract. He was also authorized to receive entire payment. If these terms and conditions are meticulously examined, this court would find that GPA was not coupled with interest. There is no substantial investment which would bring the contract under Section 202 of Contract Act. Under Ex.P3, defendant No.5 was required to carryout mining, supply the same, collect payment and then share the revenue with the mining licencee i.e., Abdul Rasheed. Therefore, strictly speaking, the terms and conditions under Ex.P3 do not indicate that it was coupled with interest. Defendant No.5 would incur expenses only after 13 carrying mining. In the present case on hand, defendant No.5 never commenced with the mining in terms of Ex.P3. On the contrary, defendant No.5 has further executed GPA in favour of husband of plaintiff No.1. All these significant details would give an indication that authorization were not coupled with interest and therefore, neither defendant No.5 nor husband of plaintiff No.1 could have asserted any right pursuant to death of Abdul Rasheed who died on 22.09.1990. It is in this background, the contention raised by the appellants/plaintiffs cannot be acceded to and the same is not at all tenable.
11. Even otherwise, under Ex.P3, Abdul Rasheed executed GPA in favour of defendant No.5, which is dated 15.09.1986. The period fixed under the agreement was 20 years. Therefore, by efflux of time Ex.P3 automatically stands terminated in the year 2006. The material on record would also indicate that original lessee has failed to secure permission from the forest department. Material on record 14 also indicate that defendant No.1 has made efforts to obtain permission from the concerned department including forest department and these attempts were made somewhere in 2006. The evidence of P.W.1 would also give an impression that plaintiffs are not at all in lawful possession. No documents are produced to demonstrate that pursuant to Ex.P6, they have commenced with mining and they were in physical possession of the suit schedule property. Both the courts below have exhaustively dealt with the rival contentions of the parties and have concurrently held that appellants/plaintiffs are not in lawful possession of the suit schedule properties.
12. In a bare suit for injunction the courts are only required to examine as to whether plaintiff is in lawful possession and whether there is an alleged interference by the other side. If these two ingredients are not satisfied, it is well within the jurisdiction of the courts to decline the grant discretionary relief of perpetual injunction. Both the 15 courts below have dealt with this issue and have come to the conclusion that appellants/plaintiffs are not in lawful possession. Therefore, this disputed question of fact cannot be re-examined under Section 100 of CPC.
The appeal is devoid of any merits is accordingly, dismissed.
SD/-
JUDGE MBS/-