Karnataka High Court
Sri. Abdul Razak vs Sri.U.Sudhakara Malya on 9 October, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:36493
RSA No. 2242 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2242 OF 2017 (DEC/INJ)
BETWEEN:
1. SRI. ABDUL RAZAK
S/O LATE M. MOHMMED
AGED 48 YEARS,
RESIDING NEAR KOOLUR
PUMP HOUSE
PADUKODI VILLAGE
MANGALURU TALUK - 575 006
2. SRI S.R. MOHIDDIN
S/O LATE AHAMED BAWA
AGED 69 YEARS
RESIDING NEAR PUMP HOUSE,
PADUKODI VILLAGE
MANGALURU TALUK - 575 006
3. S/O M.G. ABUBAKER
S/O LATE HUSSAINABBA
Digitally signed AGED 52 YEARS,
by SHARANYA T RESIDING NEAR PUMP HOUSE,
Location: HIGH PADUKODI VILLAGE
COURT OF
KARNATAKA MANGALURU TALUK - 575 006
4. SRI D. HAMZA
S/O AHAMED BAWA
AGED 54 YEARS
RESIDING NEAR PUMP HOUSE,
PADUKODI VILLAGE
MANGALURU TALUK - 575 006
...APPELLANTS
(BY SRI. UDAYA PRAKASH MULIYA, ADVOCATE)
-2-
NC: 2023:KHC:36493
RSA No. 2242 of 2017
AND:
1. SRI. U.SUDHAKARA MALYA
S/O LATE U NARASIMHA MALYA
AGED 54 YEARS,
RESIDING AT MALYA COMPOUND,
BEHIND URWA MARKET
MANGALURU - 575 006
2. SMT U.SHANTHA MALYA
D/O LATE U. NARASIMHA MALYA
AGED 54 YEARS,
RESIDING AT MALYA COMPOUND,
BEHIND URWA MARKET
MANGALURU - 575 006
3. SRI M. DINAKARA SHETTY
S/O LATE SHANTHAPPA SHETTY
AGED 54 YEARS,
RESIDING AT MADAKANAGUTHU HOUSE
RESIDING AT MALYA COMPOUND
BEHIND URWA MARKET
MANGALURU - 575 006
4. THE GOKARNANATHA CO-OPERATIVE BANK
KULOOR BRANCH
MANGALURU - 575 006
BY ITS BRANCH MANAGER
5. PUNJAB & SIND BANK
MARKET ROAD BRANCH
MANGALURU - 575 006
BY ITS BRANCH MANAGER
...RESPONDENTS
(BY SRI. DEVI PRASAD SHETTY, ADV. FOR R1 AND 2;
R3 - D/W V/O DATED 24.07.2023;
R4 AND R5 ARE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 29.08.2017 PASSED IN
R.A.NO.58/2014 ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE, MANGALURU, D.K., DISMISSING THE APPEAL
-3-
NC: 2023:KHC:36493
RSA No. 2242 of 2017
AND CONFIRMING THE JUDGMENT AND DECREE DATED
28.02.2014 PASSED IN O.S.NO.54/2009 ON THE FILE OF THE
III ADDITIONAL CIVIL JUDGE, J.M.F.C., MANGALORE, D.K.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the learned counsel for the appellants and also the learned counsel for the respondents.
2. The factual matrix of the case of the appellants before the Trial Court is that defendants seeking a relief of declaration that the sale deeds executed by the 1st defendant as General Power of Attorney holder of late Subraya Mallya in favour of second, third, fourth and fifth defendants, dated 14.05.2004, 28.05.2004 and 22.12.2003 are null and void, fraudulent and not binding on the plaintiffs. The plaintiffs also sought for the relief of mandatory injunction directing defendant Nos.2 to 5 to clear the trespass and surrender schedule properties to the plaintiffs by clearing illegal structures put up by them and for a consequential relief of directing the Sub-Registrar Mangalore Taluk to make an entry regarding nullity of the sale deeds detailed in the schedule 'B' and also the Tahasildar, Mangalore -4- NC: 2023:KHC:36493 RSA No. 2242 of 2017 Taluk directing to delete the names of defendant Nos.2 to 5 in the revenue records.
3. The defendants appeared and filed written statement contending that they are the bona fide purchasers of the schedule property and they have purchased the schedule property for valid consideration and they had titled is legal.
4. The Trial Court taking into note of the averment made in the plaint, has framed the issues that whether the properties originally belongs to late U.Subraya Mallya?, whether the plaintiffs have succeeded to the properties of Subraya Mallya and whether the sale deeds executed by the 1st defendant as GPA holder of late Subraya Malya are null and void?; and whether they are entitled for the relief of declaration and mandatory injunction as sought? and also framed the issue with regard to whether the defendants are bona fide purchasers? and whether the suit is in time?.
5. The Trial Court allowed the parties to lead evidence before the Trial Court and accordingly, the plaintiffs examined one witness as PW.1 and got marked documents Exs.P1 to 22 and also on the other hand, the defendants examined one witness -5- NC: 2023:KHC:36493 RSA No. 2242 of 2017 as DW.1 and got marked documents Exs.D1 to 23. The Trial Court having considered the material on record, decreed the suit in coming to the conclusion that defendant No.1 was not having any right to execute the sale deeds and original power of attorney was also not placed before the Court and also taken note on the fact that the original owner Subraya Mallya died in the year 1981 and General Power of Attorney came into existence in the year 1997 and the sale is concocted document and declare the sale deeds are null and void and same are fraudulent and not binding on the plaintiffs and granted the relief as sought by the plaintiffs.
6. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.58/2014. It contended that they are the bona fide purchasers and the trial Court committed an error in coming to the conclusion that the sale deeds are not binding and the fact that they had purchased the property for valuable consideration has not been considered and having considered the grounds urged in the appeal, the First Appellate Court has formulated the following points for consideration:
1. "Whether the plaintiffs have proved their title and ownership over the suit 'A' -6- NC: 2023:KHC:36493 RSA No. 2242 of 2017 schedule property and alleged GPA is fraudulent and the sale is null and void?
2. Whether the impugned judgment of the trial Court is against the law, fact, evidence and probabilities of the case and liable to be intervened with the findings of the Trial Court?"
7. The First Appellate Court having re-considered the material available on record, both oral and documentary evidence and also the grounds urged in the appeal answered the first point in the affirmative in coming to the conclusion that the plaintiffs are the absolute owners of the plaint 'A' schedule properties and General Power of Attorney is null and void and also comes to the conclusion that it does not requires any interference of the First Appellate Court and dismissed the appeal.
8. Being aggrieved by the judgment and decree of the trial Court as well as the First Appellate Court, the present second appeal is filed before this Court.
9. The main contention of the learned counsel appearing for the appellants is that both the Courts have committed an error in granting the relief of decree and confirming the same and -7- NC: 2023:KHC:36493 RSA No. 2242 of 2017 fails to take note of period of limitation while considering the suit when the sale deeds are of the year 2003, 2004 and 2005 and also Courts below have not considered the effect of presumption available under Section 85 of the Indian Evidence Act, 1872 regarding power of attorney on the basis of which the deed of sale was executed and also fails to take note of the fact that Succession Certificate Ex.P22 is not binding on the appellants as they are not parties and filing of suit for only declaration simplicitor is not maintainable unless possession is sought from the appellants and hence, this Court has to frame substantial question of law.
10. Per contra, the learned counsel appearing for the respondents/plaintiffs vehemently contend that both the Courts have been taken note of the material on record and given anxious consideration to the material on record and also the Trial Court in detail discussed with regard to the contention of the defendants and also the answer elicited from the mouth of DW.1 that they have not even obtained legal opinion before purchase and even not seen the original owner Subraya Mallya and not produced the general power of attorney and all these admissions were taken note of by the learned counsel were noticed at -8- NC: 2023:KHC:36493 RSA No. 2242 of 2017 paragraph 30, 31 while answering issue Nos.1 to 5 and also learned counsel would vehemently contend that when the plaintiffs comes to know about the defendants, started claiming right in respect of the property, even the notice in the year 2006 and suit is filed within three years and hence, the same is also taken note of by the Trial Court and rightly decreed the suit.
11. The learned counsel would also submits that the First Appellate Court also and re-appreciation of both oral and documentary evidence taken note of particular fact that the original owner Subraya Mallya died in the year 1981 and the General Power of Attorney was created in the year 1997 and sale deeds are executed in the year 2003, 2004 and 2005 and nothing is placed before this Court except examining DW.1 before the Court and the documents which have been produced before the trial Court are subsequent to the sale deeds and very execution of the sale deeds based on the power of attorney is nothing but fraudulent act at the instance of defendant No.1 and the same does not convey any right and the same is also considered by the First Appellate Court and dismissed the appeal and hence, no ground has been made to admit and frame substantial question of law.
-9-
NC: 2023:KHC:36493 RSA No. 2242 of 2017
12. Having heard the learned counsel for the appellants and also the learned counsel appearing for the respondents and no dispute with regard to the fact that the property originally belongs to Subraya Mallya. It is also not is dispute that appellants are claiming right based on the sale deeds executed by defendant No.1, who claims that he is the power of attorney holder of Subraya Mallya. The fact that Subraya Mallya died in the year 1981 is also placed before the Court by producing the death certificate and the fact that power of attorney came into existence in the year 1997 also not in dispute and even though claims that Subraya Mallya had executed the power of attorney, original power of attorney has not been placed before the Court and when the defendants claim that they are the bona fide purchasers, they have to place the material on record. The learned counsel appearing for the appellants would vehemently contend that the appellants are not the legal heirs of Subraya Mallya and plaintiffs when the said defence was taken, placed the documents of Ex.P22 - Succession Certificate in P & SC 15/01 before the trial Court and the said document is of the year 2001 and the disputes started in the year 2003 when the sale deeds are executed in favour of defendant Nos.3, 4 and 5 in the year 2003, 2004 and 2005 and the exhibits are Exs.P5 to 7 of
- 10 -
NC: 2023:KHC:36493 RSA No. 2242 of 2017 the said sale deeds and also the fact that criminal complaint was also given and case is registered is also not in dispute. However, the learned counsel for the appellants brought to the notice of this Court that criminal prosecution initiated against them was quashed by this Court in Crl.P.No.551/2011 and having perused the material available on record both the trial Court and also the Appellate Court taken note of the fact that property originally belongs to Subraya Mallya who died on 21.09.1981. The fact that power of attorney came into existence in the year 1997 and no doubt it is the claim of the defendants before the trial Court that they are the bona fide purchasers and to that effect is concerned, the trial Court has also considered the evidence of DW.1 and admission given by DW.1 in his evidence. Discussed the same and in paragraph No.29 also taken note of the contention of bona fide purchaser and he categorically admitted in his cross-examination that they have not obtained legal opinion before purchase of the property and they have not seen any document of title of Subraya Mallya before purchase and they have not verified whether Subraya Mallya was alive or not before they purchased the property and having taken note of this material also comes to the conclusion that they are not the bona fide purchaser.
- 11 -
NC: 2023:KHC:36493 RSA No. 2242 of 2017
13. The First Appellate Court on re-appreciation of material available on record and also the grounds urged in the appeal memo formulated the points with that whether the plaintiffs are the owners of the suit schedule properties and also whether the judgment and decree of the trial Court requires interference and having considered the substantial questions of law raised by the appellants' counsel and very contention that both the Courts have not considered the material in a proper perspective, the said contention cannot be accepted, in view of document of power of attorney came into existence in the year 1997 even though the author was not alive. He died in the year 1981 itself and the other contention that Ex.D22 is not binding cannot be accepted and also the other contention raise that the trial Court ought not to have considered those documents and ought to have drawn the presumption under Section 85 of the Indian Evidence Act cannot be accepted and the very power of attorney itself is created subsequent to the death of original owner even after 16 years of his death and now they cannot contend that they have derived the title and they are the bona fide purchasers. No doubt the learned counsel for the appellants has produced some of the photographs for having constructed the building and this Court also suggested to make effort to settle the
- 12 -
NC: 2023:KHC:36493 RSA No. 2242 of 2017 matter. But in spite of sufficient opportunity given, no serious effort was made by the appellants also and having given ample opportunity only, this Court heard the matter. Having considering the material on record, I do not find any perversity in the findings of the Trial Court in considering the case of the plaintiffs and also the defendants and also First Appellate Court reassessed the evidence available on record and given anxious consideration to the material available on record and in absence of any perversity, question of invoking Section 100 of the Code of Civil Procedure does not arise. Hence, I do not find any merit in the second appeal to admit and frame any substantial question of law. In view of the discussions made above, I pass the following:
ORDER The Appeal is dismissed.
Sd/-
JUDGE KG List No.: 1 Sl No.: 38