Bangalore District Court
Loknath R vs Yellamma on 21 October, 2024
KABC010126042020
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
DATED THIS THE 21st DAY OF OCTOBER 2024
PRESENT: Sri. S. NATARAJ, B.A.L., LL.B.,
(Name of the Presiding Judge)
O.S.NO.3392/2020
PLAINTIFF Sri Loknath R.,
S/o Late Rudrappa,
Aged about 63 years,
R/at No.305, Bilad
Embassy Apartment,
3rd Floor, Beside Church,
Kengeri Satellite Town,
Kengeri,
Bengaluru - 560 060.
[By Sri Sharath S. Gowda, Advocate]
/Vs/
DEFENDANTS 1. Yellamma,
W/o Late Pillappa,
Age Major.
2. Ravikumar
2
OS.No. 3392/2020
S/o Late Pillappa,
Age: Major.
Both are R/at House List
No.112/1, New No.1826,
Marenahalli 7th Cross,
Behind Yellamma Temple,
J.P. Nagar, II Phase,
Bengaluru - 560 041.
3. Sri K.B. Krishna
S/o K. Byrashetty,
Age : 74 years
R/at No.3, 4th Block,
K.H.B. Quarters, Lalbagh,
Siddapura,
Bengaluru - 560 011.
4. Meenakshi K.S.,
W/o P.V. Venkatesh Iyer,
Age: Major
New No.1824, Khatha No.437,
House List No.112/1,
Marenahalli 7th Cross,
Behind Yellamma Temple,
J.P. Nagar, II Phase,
Bengaluru - 560 041.
[Exparte]
Date of Institution of the suit : 04-08-2020
Nature of the Suit : Specific Performance
Date of commencement of recording
of evidence : 14-03-2023
Date on which the Judgment was
pronounced : 21-10-2024
3
OS.No. 3392/2020
Year/s Month/s Day/s
Total Duration : 04 02 17
(S. NATARAJ)
VI ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This is a suit for cancellation of registered sale deed dated 06-10-1990 executed by Pillappa, Power of Attorney Holder of the plaintiff in favour of defendant No.3 and to declare the sale deed dated 17-06-1991 executed by the defendant No.3 in favour of defendant No.4 as null and void and not binding on the plaintiff and directing the 4 th defendant to deliver the vacant possession of the suit schedule property to the plaintiff.
2. The plaintiff's case in brief are as follows : 4
OS.No. 3392/2020 The plaintiff has purchased the suit schedule property from Pillappa S/o Venkatappa, husband of defendant No.1 and father of defendant No.2 through registered sale deed dated 16-04-1987. The said Pillappa while executing the sale deed had suppressed about the pending litigation in respect of suit schedule property. Because of said reasons, katha was not transferred in the name of the plaintiff. The Pillappa had deceived the plaintiff and got obtained GPA dated 22-09-1989 assuring that he will get the litigation solved. In the said GPA no authority was given to sell the suit schedule property. The plaintiff is not in possession of original GPA and it was handed over the vendor Pillappa. The plaintiff was working in Chennai and he was unable to look after the affairs of the suit schedule property. Taking advantage of the same, Pillappa on the basis of the GPA dated 22-09-1989 having no authority to sell, had sold the suit property through registered sale deed dated 06-10-1990 in favour of defendant No.3. 5
OS.No. 3392/2020 2(a). The plaintiff recently after finishing his work assignment at Chennai came back to Bangalore, when he had visited the suit property, he came to know that the 4th defendant had constructed the house by demolishing the earlier house. After obtaining documents, the plaintiff came to know about the said transaction. The plaintiff is still in possession of original sale deed. The 4 th defendant is not having any right. The plaintiff is not the signatory to the sale deed nor authorized to Pillappa to alienate the suit property in favour of defendant No.3. The plaintiff issued legal notice to defendant No.4 demanding hand over the possession of the suit property, which was not returned as not claimed. Therefore, suit is filed.
3. The defendants No.1 to 4 are placed exparte. 6
OS.No. 3392/2020
4. The plaintiff examined himself as PW.1. In his support, Exs.P-1 to P-14 documents are marked.
5. Heard arguments of plaintiff. Perused records.
6. On the basis of the above said pleadings, the following points would arise for my consideration :
1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property ?
2) Whether the plaintiff proves, he has not given any authority under GPA dated 22-09-1989 to Pillappa to sell the suit schedule property in favour of defendant No.3 ?
3) Whether the plaintiff proves that the sale deed dated 06-10-1990 executed by Pillappa as a Power of Attorney holder in favour of defendant No.3 is liable to be cancelled ?
4) Whether the plaintiff proves that the sale deed dated 17-06-1991 executed by the defendant No.3 in favour of defendant No.4 is null and void and not binding on him ?
5) Whether the plaintiff proves that he is entitled for vacant possession of suit schedule property from defendant No.4 ?
6) What decree or order ?
7. My findings on the above points are as follows: 7
OS.No. 3392/2020 Points No.1 to 5 : In the Negative Point No.6 : As per the final order, for the following:
REASONS
8. POINTS NO.1 TO 5 :- All the points are taken together for common consideration to avoid the repetition of facts.
8(a). The plaintiff Lokanath in his chief-examination evidence deposed as per the plaint averments contending that he has purchased the suit schedule property from his vendor Pillappa through sale deed at Ex.P-1. At that time, Pillappa had suppressed about pending litigations and he obtained a GPA to solve the problems. There is no authority in the GPA at Ex.P-10 to sell the suit schedule property. The plaintiff was working in Chennai. After finishing his work recently he came to Bangalore and visited the suit schedule property and found that the defendant No.4 by demolishing old existed house, constructed a 8 OS.No. 3392/2020 new building. The Pillappa without authority executed the sale deed in favour of defendant No.3, who in turn executed the sale deed in favour of defendant No.4. The 4th defendant is not having any right, title or interest over the suit schedule property. The plaintiff has not handed over original sale deed in favour of Pillappa. Therefore, the plaintiff is the owner. The sale deed executed by Pillappa as a GPA holder in favour of defendant No.3 is liable to be cancelled and sale deed of the defendant No.4 is to be declared as null and void and he is entitled for vacant possession of suit schedule property.
9. The learned counsel for the plaintiff submitted that the GPA at Ex.P-10, there is no authority to sell the suit schedule property is given to Pillappa. On the basis of said GPA the sale deed executed by Pillappa in favour of defendant No.3 is not valid and liable to be cancelled. The counsel further submitted that once title deeds established, it is for the 9 OS.No. 3392/2020 defendants to establish that they have perfected title by adverse possession. The counsel further submitted that Art.65 of Limitation Act period of 12 years start from the date on which the adverse interest is started. The defendants have not appeared before the Court nor contested the matter and there is no material that they have perfected title by adverse possession. Therefore, the plaintiff is entitled for possession. The suit is within the limitation period.
9(a). The counsel further submitted that the original sale deed at Ex.P-1 is in the custody of the plaintiff, as such there is no authority for his vendor Pillappa to execute sale deed on the basis of GPA. The counsel relied upon the judgment of the 2022 LiveLaw (SC) 338 Mrs. Umadevi Nambiar vs. Thamarasseri Roman Catholic Diocese Rep. by its Procurator Devssia's son Rev. Father Joseph Kappil, wherein it is held that:
10
OS.No. 3392/2020 " The power to sell is not to be inferred from a document of power of attorney. Ordinarily a power of attorney is to be construed strictly by the Court. Cannot amplify or magnify the clauses contained in the deed of power of attorney. The document should expressly authorize the agent to execute a sale deed, to present it for registration and to admit execution before the Registering authority." 9(b). In respect of limitation point the learned counsel relied upon the judgments (1) (2005) 8 SCC 330 Saroop Singh vs. Banto and others ; (2) 2015 Supreme (Kar) 1203 Hon'ble High Court of Karnataka, S.D. Nagaraju and others vs. Sri Shivaganga Education and Charitable Trust ® and others ; (3) ILR 2014 KAR 4726 Janatha Dal Party, Bangalore vs. The Indian National Congress and others.
10. After considering the submissions. The plaintiff admittedly had purchased the suit schedule property through sale deed dated 16-04-1987 at Ex.P-1 from Pillappa, husband of defendant No.1 and father of defendant No.2. Ex.P-2 is the sale deed executed by 11 OS.No. 3392/2020 Pillappa as a Power of attorney holder of the plaintiff in favour of defendant No.3. Exs.P-3 and P-3(a) are the sale deeds dated 17-06-1991 executed by the defendant No.3 in favour of defendant No.4. Exs.P-6 and P-7 are the Encumbrance certificates reflecting the transactions between defendants No.3, 4 and Pillappa. Ex.P-8 is the Encumbrance certificate in respect of plaintiff Ex.P-1 sale deed transaction. 10(a). Ex.P-10 is the photostat copy of GPA dated 22-09-1989 executed by the plaintiff in favour of Pillappa. This documents has been marked through secondary evidence. The execution of this unregistered GPA is admitted by the plaintiff in his plaint as well as in chief-examination evidence. According to plaintiff this GPA has been executed by the plaintiff in favour of Pillappa to resolve the pending litigation. However, there is no such recitals that the GPA is executed to resolve the pending litigation. On the other hand, the power of attorney 12 OS.No. 3392/2020 has been executed by giving various powers to Pillappa.
11. The counsel for the plaintiff has mainly contended that there is no expressed authority is given to the GPA holder to sell the suit schedule property. However, the recitals of the GPA would disclose Clause-9 the relevant portion reads as follows :-
".........and to negotiate for sale of the property to any intending purchaser on such price as he deems fit and property."
11(a). The above said clause explicitly conferred power upon Pillappa, Power of attorney holder to alienate the suit schedule property to the intending purchasers. Therefore, at the very outset, the very contention of the plaintiff that under GPA no authority to sell suit schedule property is baseless. Therefore, as per GPA Pillappa has executed Ex.P-2 sale deed in favour of defendant No.3, who in turn executed sale deed in favour of defendant No.4. 13
OS.No. 3392/2020 Presently, the 4th defendant has constructed house. Exs.P-11 and P-12 are the photographs would show the existing building in the suit schedule property. The plaintiff has also contended the original sale deed is in his custody, therefore, it is to be inferred that the GPA was not executed to sell the suit schedule property. Since the original GPA is in the custody of the plaintiff cannot be said that no power is given to GPA holder to alienate the suit property. Clause-9 of GPA is specifically authorize Pillappa - Power of attorney holder to execute the sale deed. Therefore, just because merely original sale deed Ex.P-1 is in the custody of the plaintiff cannot be held that no authority was given to Pillappa to sell the property.
12. The plaintiff after obtaining sale deed on 16-04-1987 he had not obtained katha transferred in his name or paid tax. Therefore, this is one of the circumstances which would show that he has given 14 OS.No. 3392/2020 authority to Pillappa under GPA to sell the property. Therefore, the sale deeds at Exs. P-2 and P-3 are valid and binding. The plaintiff is not in possession. The question of canceling Ex.P-2 sale deed and declaring Ex.P-3 sale deed as null and void is not entitled by the plaintiff. The plaintiff is also not entitled for possession. All other judgments relied by the plaintiff counsel with regard to Art.65 of the Limitation Act does not arise for consideration since title is not proved by the plaintiff. If at all, the plaintiff establishes title, then as per Art.65 of the Limitation Act, the question for consideration whether the plaintiff is entitled for possession or not would be available. Under the circumstances, the plaintiff failed to prove his title to the suit schedule property. Accordingly, answered the points No.1 to 5 in the Negative.
13. POINT NO.6: As per the findings on points No.1 to 5, I proceed to pass the following: 15
OS.No. 3392/2020 ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(Dictated to the Stenographer Grade-I, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, on this the 21st day of October 2024.) (S. NATARAJ) VI Addl.City Civil & Sessions Judge Bengaluru City.16
OS.No. 3392/2020 ANNEXURE
1. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 Sri Lokanath R. dt: 14-03-2023
(b) Defendants' side : - NIL -
2. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Original sale deed dt: 16-04-1987
Ex.P.2 Certified copy of sale deed dt: 06-10-1990
Ex.P.3 Certified copy of sale deed dt: 17-06-1991
Ex.P.3(a) Typed copy of Ex.P-3
Ex.P.4 Copy of notice dt: 22-01-2020
Ex.P.5 RPAD covers
Ex.P.6 EC from 01-04-1990 to 31-03-2004
Ex.P.7 EC in form No.16
Ex.P.8 EC from 01-04-1974 to 02-06-1987
Ex.P.9 Paper publication notice to Defendant to
produce GPA, in Udayavani Kannada daily newspaper dated 22.02.2024 Ex.P.10 Xerox copy of GPA as a secondary evidence, after exhausting remedy under Section 66 of Evidence Act Ex.P.11 2 photographs with CD to Ex.P.13 Ex.P.14 65B certificate
(b) Defendants' side : - NIL -
VI Addl. City Civil & Sessions Judge Bengaluru City.