Bangalore District Court
Sri.K.Lakshminarayana vs Sri.K.Kariyappa on 16 September, 2015
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BANGALORE.
PRESENT:SRI.BHAIRAPPA SHIVALING NAIK, B.Com.,LL.B.(Spl),
XII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
DATED: THIS THE 16TH DAY OF SEPTEMBER 2015
O.S.No.1049/2010
Plaintiff:- Sri.K.Lakshminarayana,
Aged about 49 years,
S/o Sri.C.T.Kalaiah,
R/at No.176/B, 10th Cross,
Bapuji Nagar,
Bangalore-560 026.
(By Sri.K.T.Dakappa-Advocate)
-VS-
Defendants:- 1. Sri.K.Kariyappa,
Aged about 64 years,
S/o Late Kariyanna,
R/at Nagarabhavi Village,
Yeshwanthpura Hobli,
Bangalore North Taluk.
2.Smt.Lakkamma,
Aged about 70 years,
W/o Late Sanjeevaiah,
2 O.S.No.1049/2010
3.Sri.S.Maruthi,
Aged about 43 years,
S/o Late Sanjeevaiah,
4.Sri.S.Krishanamurthy,
Aged about 35 years,
S/o Late Sanjeevaiah,
5.Sri.S.Manjunath,
Aged about 32 years,
S/o Late Sanjeevaiah,
6.Sri.S.Kantharaja,
Aged about 29 years,
S/o Late Sanjeevaiah,
No.2 to 6 residing at No.15,
Vinyas Renaissance,
Jnanabharathi Main Road,
Nagarabhavi, Banglaore-
560 072.
(Deft.No.1 by M/s.Law
Associates, Advocates
Defts.2 to 6 by Sri.AVK
Advocate )
Date of Institution of the suit : 15/02/2010
Nature of the suit : Declaration & injunction
Date of commencement of
recording of the evidence : 10/07/2012
3 O.S.No.1049/2010
Date on which the Judgment was
pronounced : 16/09/2015
Total Duration Years Months Days
: 05 07 01
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
J U D G M E N T
This is a suit filed by the plaintiff for declaration and permanent injunction against the defendants in respect of the suit schedule property.
2. The case of the plaintiff is that the defendant being owner of land measuring 2 Acres 36 Guntas of Nagarabhavi village, Bengaluru North Taluk was entered into an Agreement of Sale with the plaintiff on 21.1.2002 agreeing to sell the entire land Sy.No.1/5 to the plaintiff or his nominee for total sale consideration of Rs.30 Lakhs. The defendant represented to the plaintiff at the time of executing the Agreement that the schedule property was free from encumbrances and there were sites formed for the said Sy.No.61 and that there was no litigations whatsoever. The plaintiff paid a sum of Rs.10 Lakhs on the 4 O.S.No.1049/2010 said representation of the defendant on the date of Agreement and also paid the balance amount from time to time subsequently by taking necessary endorsement on the Agreement itself. After the Agreement the plaintiff came to know that the schedule property was the subject-matter of litigations between the plaintiff and one Nanjappa and others which are pending before the Hon'ble High Court of Karnataka, due to which the plaintiff was unable to get the Sale Deed executed and registered in terms of the Agreement. The defendant executed General Power of Attorney in favour of the plaintiff authorising the plaintiff to look after and deal with the schedule property and also represent in all litigations. Accordingly the plaintiff took General Power of Attorney from the defendant dated.8.8.2005 registered before the Sub-Registrar, Bengaluru North Taluk. The General Power of Attorney was executed is one for consideration. There was no amount payable by the plaintiff to the defendant in respect of the sale consideration of the schedule property. On the basis of the said irrevocable authority given by the defendant, the plaintiff made improvements on the land and fought the 5 O.S.No.1049/2010 litigations through out from the Date of Agreement and General Power of Attorney dealing with the schedule property. The plaintiff has been enjoying and dealing with the schedule property before all authorities including the courts as absolute owner.
3. The facts being so, the plaintiff received the notice form the defendant dated. 11.1.2010 stating that the General Power of Attorney is null and void and the defendant is going to cancel the General Power of Attorney. The defendant without mentioning the Agreement, receipt of consideration and act done by the plaintiff made threat on the plaintiff to revoke General Power of Attorney. The Defendant had no right to revoke the General Power of Attorney for the reasons stated above. The plaintiff replied the notice informing the fact that the General Power of Attorney is one for consideration and he has no authority to revoke the same. If the defendant succeed in his attempt, the plaintiff will be put to irreparable loss and injury. Further the plaintiff is answerable to several 3rd parties. The defendant is making hectic efforts to revoke the 6 O.S.No.1049/2010 General Power of Attorney by registering the Revocation Deed with the Sub-Registrar concern and in this regard the plaintiff is making open proclamation with the third parties. Therefore, the plaintiff has constrained to file the suit for declaring that the General Power of Attorney dated.8.8.2005 registered before the Sub-Registrar, Bengaluru North Taluk, Bengaluru registered as document No.197/05-06 is one for consideration and consequential permanent injunction restraining the defendants from in any way revoking the said General Power of Attorney and consequential relief of permanent injunction restraining the defendant, his agents, etc., claiming under him from unnecessary dealing with the suit schedule property.
4. In response to the suit summons, the defendant has appeared and filed written statement. The defendant has denied each and every allegations made in the plaint as false. However the defendant has admitted that the land measuring 2 Acres 6 Guntas situated at Nagarabhavi village, as described in the plaint was originally owned and possessed by the defendant. Infact, Survey Number is 1/5, but the plaintiff has omitted to mention the Survey Number. The 7 O.S.No.1049/2010 defendant has stoutly denied that he had entered into an Agreement with the plaintiff on 21.2.2002 agreeing to sell 2 Acre and 6 Guntas in favour of the plaintiff or his nominees for a total sale consideration of Rs.30 Lakhs and at the time of executing Agreement, the defendant represented to the plaintiff that the suit property was free from encumbrances and there were sites formed in the said Survey Number 61 and there was no litigations whatsoever and on the said representation of the defendant, the plaintiff paid Rs.10 Lakhs on the date of Agreement. It is also denied that there afterwards, the plaintiff paid the balance amount from time to time by taking necessary endorsement on the Agreement itself. The defendant has submitted that he has not received any amount from the plaintiff much less Rs.10,00,000/- or any sums as averred by the plaintiff. The defendant has further submitted that there was no privity of contract between the plaintiff and the defendant and the question of defendant informing the plaintiff about the pending litigations at the time of execution of the alleged Agreement of Sale. The defendant had executed General Power of Attorney on 8.8.2005 which was registered in the 8 O.S.No.1049/2010 office of the Sub-Registrar, Bengaluru North Taluk, Bengaluru as documents No.1972005-06 in order to facilitate the plaintiff to develop the schedule property for and on behalf of the defendant.
5. The defendant has specifically denied that the said General Power of Attorney was executed for consideration in as much as the plaintiff has paid the alleged sale consideration of Rs.30 Lakhs to the defendant and that there was no amount payable to the plaintiff to the defendant in respect of the suit schedule property and the same was executed in pursuance of alleged Agreement of sale and payment of full consideration to the defendant and it was irrevocable. The plaintiff has been representing the defendant before all the authorities concerned in relation to the suit schedule property and not as the absolute owner as alleged by the plaintiff and the authority conferred on the plaintiff is not one for valuable consideration. Such contentions have been taken by the plaintiff with dishonest intention of prejudice the mind of the Court and harassing the defendant and with ulterior motive of grabbing the suit 9 O.S.No.1049/2010 schedule property from the defendant. The defendant has admitted the notice issued by her dated.11.1.2010 to the plaintiff and plaintiff replied to the said notice on 16.1.2010.
6. The defendant has further pleaded that the plaintiff has acquired no right, title or interest over the suit schedule property under the Agreement of sale as alleged, since the plaintiff has done precious little for development of the suit schedule property by virtue of the registered General Power of Attorney, the defendant has every right to revoke the same and hence the defendant had notified his intention to revoke the General Power of Attorney. In view of non-performance of the powers conferred on the plaintiff under the said General Power of Attorney and there is nothing wrong in making open proclamation in this regard. There is no cause of action for filing the suit. The suit has not been properly valued. The plaintiff has not made any declaration about his not filing any other suit etc., or pendency of such suit etc., before the competent court of law on the same subject-matter. Making such a declaration in 10 O.S.No.1049/2010 the suit is mandatory. On this ground also, the suit is liable to be dismissed in limine.
7. The defendant has further submitted that originally, mother of the defendant was the owner of land bearing Sy.No.1/5 measuring 2 Acre 36 Guntas and Sy.No.1/5 measuring 0-28 Guntas situated at Nagarabhavi village, Yeshwanthpura Hobli. The mother of the defendant had filed suit for permanent injunction against the children of her husband's brother late Siddaramaiah and Kendriya Upadyayara Sangha. Since Kendriya Upadyayara Sangha claimed to be an Agreement holder of the said property in question and agreed to purchase the same from children of late Siddaramaiah under the guise of khatha is in their name. During the pendency of O.S.No.2443/1984 filed by his mother before the XIX Addl. City Civil & Sessions Judge, at Bangalore, she died. During her lifetime, she had executed a Will bequeathing all her immovable properties in favour of the defendant. Hence the defendant being legal representative and beneficiary of the Will has conducted the above proceedings. After hearing the parties-in-lis therein 11 O.S.No.1049/2010 the Hon'ble High Court has decreed the suit in favour of the defendant on 24.2.2005. The defendants in O.S.No.2443/1984 being aggrieved by the Judgment preferred appeal in R.F.A.No.671/2005 before the Hon'ble High Court of Karnataka which is pending for consideration in respect of the suit schedule property there are 61 sites formed. The defendant is suffering from heart disease and he could not able to lookafter the schedule property to the plaintiff who claims to be a developer came forward to look after the schedule property. Accordingly the defendant had executed GPA in favour of the plaintiff on 8.8.2005. The plaintiff had committed many irregularities on the basis of the GPA executed by the defendant and has misused the same. Hence the defendant issued notice dated.11.1.2010 for canceling the Power of Attorney and cancelled the Power of Attorney by way of registered document on 12.1.2010 itself. The said revocation of the GPA presented for registration on 12.1.2010 itself and registering authority has kept it pending for clarification and subsequently it has been registered. The GPA executed has been cancelled before the suit filed by the plaintiff. The plaintiff has sold as many 12 O.S.No.1049/2010 as 34 sites which was formed in the suit schedule property by taking advantage of the GPA executed in favour of the plaintiff by the defendant. The Power of Attorney executed by defendant is not an agency coupled with interest. The defendant has developed the land and formed the sites. Since the plaintiff claims to have taken possession of the schedule property under alleged agreement, he has to pay the stamp duty as per the conveyance as per Article 5(e) of the Karnataka Stamp Act 1957 as the stamp duty paid by the plaintiff is only Rs.200/- and the document relied on by the plaintiff is liable to be impounded. Further the suit of the plaintiff is for declaration that the GPA dated.8.8.2005 is for consideration and also sought for permanent injunction against the defendant. The plaintiff has not paid the proper stamp duty for the alleged power of attorney which is also liable to be impounded. Therefore, the defendant prays to dismiss the suit with exemplory costs.
8. It is relevant to note here that infact defendants No.2 to 6 themselves are got impleaded as per order dated.30.11.2011 on I.A.9 filed by them. Meanwhile, the 13 O.S.No.1049/2010 defendants 2 to 6 have filed joint written statement verified by them on 29.3.2012. The defendants 2 to 6 have not put their signatures on each of the pages of written statement except the verification.
9. Defendants 2 to 6 have also denied each and every allegations made in the plaint by the plaintiff as false. Defendants 2 to 6 have shown their ignorance about the Agreement of sale dated. 21.1.2012 and General Power of Attorney dated.8.8.2005 executed by defendant in favour of the plaintiff in respect of land Sy.No.1/5 for a total sale consideration of Rs.30 Lakhs. The alleged transaction between the plaintiff and defendant in respect of the suit schedule property is not concerned with them and also same is not binding on them.
10. In turn, the defendants 2 to 6 have submitted that the land bearing Sy.No.1/5 measuring 2 Acres 36 Guntas belongs to one Smt.Gangamma mother of the 1st defendant which is her absolute self acquired property. That Gangamma had got five sons namely, Mallappa, Sanjeevaiah, Kariyanna the 1st defendant herein, Chikkamallappa, Ramaiah 14 O.S.No.1049/2010 and daughters by name Puttamma and Lakshmamma. Sanjeevaiah died leaving behind the defendants No.2 to 6 as his L.Rs. The said Gangamma along with her sons Sanjeevaiah, Kariyanna, Chikkamallappa and Ramaiah has filed O.S.No.2443/1984 against defendant No.1 and others for declaration of title and injunction on the file of the City Civil Court, Bengaluru. Smt.Gangamma died intestate on 16.3.1993 leaving behind the said sons and daughters as her L.Rs during the pendency of the suit. The 1st defendant was conducting the case on behalf of other L.Rs of Gangamma but the 1st defendant has not brought on record all the L.Rs of Smt.Gangamma in O.S.No.2443/1984.
11. These defendants have further submitted that Sanjeevaiah brother of 1st defendant who was 2nd plaintiff in that suit died on 4.11.1993 leaving behind the defendants 2 to 6 as his legal representatives. The said suit in O.S.No.2443/1984 would have continued even in the absence of the L.Rs of the said Sanjeevaiah as the cause of action to the said suit survives on the remaining plaintiffs. On the other hand, the 1st defendant concocted the Will 15 O.S.No.1049/2010 dated.19.6.1992 alleged to be executed by Smt.Gangamma in his favour.
12. The 1st defendant has filed O.S.No.6970/1993 on the file of the City Civil Judge Court, CCCH.13 Bengaluru based on the concocted Will against his brothers and sisters without impleading his brother Mallappa and defendants 2 to 6 as L.Rs of Sanjeevaiah as defendants in the said suit. The defendant No.1 along with the defendants in the said suit have filed collusive compromise petition on 18.2.1994 and the suit was decreed in terms of the said compromise petition. Defendant No.2 is an illiterate and he has no worldly knowledge. The defendants 2 to 6 were minors. Defendants after coming to know the pendency of the suit have filed application to brought on record as L.Rs of late Sanjeevaiah on 15.1.2001. That application was opposed by defendant No.1 herein and the said application was dismissed on the ground of delay and latches on 30.1.2002. Thus the defendants 2 to 6 were kept out of the suit in O.S.No.2443/1984. The defendant No.1 has amended the plaint in O.S.No.2443/1984 to suit his convenience. After the contest the said suit was 16 O.S.No.1049/2010 dismissed. The 1st defendant had challenged the said Judgment in R.F.A.No.451/2002 on the file of Hon'ble High Court of Karnataka. Defendants 2 to 6 have filed application under Or.1 Rule 10(2) of CPC to implead the respondents in the said R.F.A.No.451/2002 and the Hon'ble High Court of Karnataka has dismissed the said application on 13.8.2002 and directed to file proper application as per law. The Hon'ble High Court has allowed R.F.A.No.451/2002 and remanded back to the Trial court. After remand, the fresh trial in O.S.No.2443/1984 was decreed in favour of defendant No.1 as per Judgment & Decree dated.24.02.2005. The defendants in the said suit have filed R.F.A.No.671/2005 against the said Judgment & Decree on the file of Hon'ble High Court of Karnataka and the same is pending. Defendants 2 to 6 have filed an application in R.F.A.No. 671/2005 to implead them as respondents and that application is also pending for consideration.
13. Defendants 2 to 6 have further submitted that admittedly the suit schedule property belongs to Smt.Gangamma as her absolute property. After her death, all the L.Rs have got equal share in the legal estate left by 17 O.S.No.1049/2010 the said Gangamma. The defendant No.1 is got to prove the alleged concocted Will dated.19.6.1992 said to be executed by Smt.Gangamma in favour of defendant No.1 before the competent Civil Court. Further the defendants 2 to 6 have filed O.S.No.3976/2005 against all the L.Rs of Smt.Gangamma for partition and separate possession of their share in respect of the properties left behind by Smt.Gangamma on the file of City Civil Judges Court, CCH.No.7 which is pending. The plaintiff was impleaded as defendant in the said suit. Any transaction entered into by defendants 1 to 4 and other 3rd parties is not binding on these defendants. Defendant No.1 has absolute right, title or interest to alienate the suit schedule property. If the plaintiff alienates to 3rd party, it will lead to multiplicity of proceedings. Defendant No.1 entered into collusive transaction to deprive the legitimate share of these defendants over the suit schedule property as claimed by them in O.S.No.3976/2005. Therefore, it is prayed to dismiss the suit with costs.
18 O.S.No.1049/2010
14. On the basis of the pleadings the following issues have been formulated on 15.6.2012:-
ISSUES
1. Does the plaintiff prove that, he has purchased the suit schedule property for a valid sale consideration amount of Rs.30,00,000/- as contended in the plaint?
2. Does the plaintiff prove that, the General Power of Attorney Dated:8.8.2005 executed in his favour is a irrevocable G.P.A as contended in the plaint?
3. Does the plaintiff prove that, he is in possession of the suit schedule property as on the date of filing of the suit?
4. Does the plaintiff prove that, the defendants are interfering in his possession over the suit schedule property?
5. Is the suit property valued and court fee paid on the same is sufficient?
6. What order or decree?19 O.S.No.1049/2010
15. In order to substantiate the claim, the plaintiff and his two supporting witnesses were got examined as P.Ws.1 to 3 and adduced documentary evidence from Ex.P1 to Ex.P31. Thereafter defendant No.6 is got examined on behalf of defendants 2 to 6 as D.W.1 and got marked Ex.D1 to Ex.D30 on 1.4.2014.
16. Meanwhile, as per order dated.1.12.2014, the defendants 3 to 6 were permitted to withdraw from the suit. As such pleadings and evidence of defendants No. 2 to 6has to be ignored. Though defendant No.1 has resisted the claim of the plaintiff by filing his written statement and also cross-examined P.W.1 to 3, yet he has not adduced any oral or documentary evidence in support of his defence.
17. I have heard the counsel for the plaintiff and 1st defendant. Besides, the counsel for the plaintiff has filed written arguments with rulings.
18. My findings on the afore said issues are as under:
Issue No.1: In the Negative
Issue No.2: In the Negative
Issue No.3: In the Negative
20 O.S.No.1049/2010
Issue No.4: In the Negative
Issue No.5: In the Negative
Issue No.6: As per final order
for the following:-
/REASONS/
19. Issues No.1 to 4:- Since these issues being interlinked with each other, in order to avoid repetition of discussions, are taken up together for consideration.
20. The plaintiff has filed the suit against the 1st defendant for declaring that the General Power of Attorney dated.8.8.2005 registered before the Sub-Registrar, Bengaluru North Taluk registered as Document No.197/05- 06 is one for consideration and for a relief of permanent injunction, restraining the defendants from in any way revoking the said General Power of Attorney and consequential relief of permanent injunction restraining the defendant, his agents, servants workers or anybody claiming under him from in any way dealing with the suit schedule property bearing Sy.No.1/5, measuring 2 Acres 36 Guntas situated at Nagarabhavi Village, Yeshwanthpura, Bengaluru 21 O.S.No.1049/2010 North Taluk, Bengaluru District as described with boundaries in the suit schedule annexed to the plaint.
21. The 1st defendant has not only denied the execution of Agreement of sale dated.21.01.2002 and passing of consideration of Rs.30 Lakhs under the said Agreement from the plaintiff to him but also heirs said to have cancelled the registered power of attorney dated.8.8.2005 by executing registered Cancellation Deed dated.12.1.2010. According to the 1st defendant, he executed registered General Power of Attorney on 8.8.2005 only in order to facilitate the plaintiff to develop the schedule property for and on behalf of the defendant. But the said General Power of Attorney is not coupled with interest and already the defendant has revoked the alleged registered power of attorney on 12.01.2010 which has been registered on 24.10.2010 prior to filing of the suit of the plaintiff. As such, there is no cause of action for the plaintiff to file the present suit against the defendant in respect of the suit schedule property.
22 O.S.No.1049/2010
22. The plaintiff is relying on oral evidence of P.W.1 to 3 coupled with documentary evidence on record. P.W.1 has reiterated the averments made in the plaint in the course of his examination-in-chief by way of an affidavit. In view of admission of P.W.1 in the course of his cross-examination by the Learned counsel for the defendant No.1. It is crystal clear that the plaintiff worked as agent of the 1st defendant under the General Power of Attorney. After execution of General Power of Attorney, Agency Agreement was drafted between the plaintiff and defendant No.1 and the plaintiff paid consideration to defendant No.1 under the same and no consideration amount is paid to defendant at the time of execution of the power of attorney executed by defendant No.1. The plaintiff came to know about the revocation of his power of attorney only after the receipt of notice issued by the defendant No.1, prior to the institution of this suit. The plaintiff is said to have enforced the agreement at Ex.P1 on 21.1.2002. The plaintiff has not obtained any decree from the competent court under Ex.P.1 which was never converted as Sale Deed. It is an admitted fact that the defendant No.1 has not executed a registered sale deed with respect to the 23 O.S.No.1049/2010 suit schedule property as mentioned in Ex.P.1. The plaintiff had not filed suit either for specific performance of contract or refund of earnest money against defendant No.1. However the plaintiff had taken possession of the suit schedule property under Ex.P1. There is no mention in Ex.P1 with regard to handing over the possession of the suit schedule property by defendant No.1 to the plaintiff. At the time of execution of Ex.P.2, Ex.P1 was in force. After execution of Ex.P.1 defendant No.1 expressed his inability to execute a registered sale deed with respect to the suit property stating that a suit is pending before the court, so he has executed Ex.P.2. On the date of execution of Ex.P.2 no sites was formed over the suit land. But he had informed defendant No.1 about the sale of the said sites. As deposed by P.W.1, he has not sold any sites formed over the suit land. But those sites were sold by defendant No.1. The Sale Deeds marked as Ex.P11 to 31 are not the sale deeds executed by defendant No.1 or by the plaintiff in favour of the vendees mentioned in the said Sale Deeds. The plaintiff had never challenged the sale deeds marked at Ex.P11 to 24 O.S.No.1049/2010 Ex.P31. There was no impediment for the plaintiff to recover amount from the defendant No.1 under Ex.P1. The plaintiff paid sale consideration of the defendant No.1 through cheque and by cash. There is no documentary evidence to show the formation of sites by the plaintiff over the suit land and investment made by him for development and for formation of sites. The plaintiff has no any revenue records or registered documents with regard to deriving his title to the suit land. The registered Sale Deed ought to have been executed within one year from the date of execution of that Agreement. As per agreed terms, the plaintiff could not get registered Sale Deed from defendant No.1 in view of pendency of the suits before the court. The plaintiff knew that at the time of execution of Agreement, O.S.No.2443/1984 was pending before the court. The possession of the schedule property was delivered to plaintiff as per Clause-(e) of Agreement of sale.
23. P.W.1 has further stated that Nagarabhavi is about 3 K.Ms far from Vijayanagara extension and the suit property is situated in Nagarabhavi limits. The General 25 O.S.No.1049/2010 Power of Attorney is valued at Rs.1,000/- for its registration. On the basis of Ex.P.2 he formed a layout over the suit land but no document is produced regarding formation of residential layout over the suit land. P.W.1 does not know about O.S.No.3976/2005 filed by defendant No.2 and 6 against the legal heirs of deceased Gangamma. The suit in O.S.No.6970/1993 came to be decreed on 18.02.1994, but he does not know as to why the decree passed in O.S.No.6970/1993 is not mentioned in the agreement marked at Ex.P1. It is also admitted that the suit land is the self acquired property of Gangamma under the sale deed dated:13.01.1931 and that Gangamma was having sons by name Mallappa, Sanjeevaiah, Kariyappa, Chikkamallappa and Ramaiah and daughters namely, Puttamma and Laxmamma. The plaintiff herein was not a party to RFA 671/2005. The sale deeds marked at Ex.P.13 to Ex.P.31 are not signed by defendant No.1. However the plaintiff executed those documents on behalf of defendant No.1.
26 O.S.No.1049/2010
24. As noted supra, the defendant is very much relying on Agreement to sell dated.21.1.2002 at Ex.P1. Accordingly the defendant Kariyappa was agreed to sell the suit schedule land bearing Sy.No.1/5 measuring 2 Acres 36 Guntas situated at Nagarabhavi, Bengaluru North Taluk within the following boundaries as an agricultural land for total consideration of Rs.30 Lakhs:-
East by: Land bearing No.54/2 West by: Road North by: Land bearing No.1/2 & South by: Land bearing No.1/6, National Law School As recited in the Agreement to sell, the plaintiff was said to have paid a sum of Rs.2 Lakhs through cash as advance sale consideration and agreed to pay a sum of Rs.8 Lakhs within three months from the date of Agreement and balance sale consideration of Rs.20 Lakhs within 9 months from thereafter and get the Sale Deed registered in his favour. The defendant has delivered vacant possession of the schedule property in favour of the plaintiff under the Agreement to Sell. P.W.2 one of the witness to the Agreement has deposed to the effect of execution of the 27 O.S.No.1049/2010 said Agreement to sell by the defendant in respect of the suit schedule property in favour of the plaintiff. P.W.3 has deposed about the endorsement made on 1.12.2002, 17.2.2007 and 21.9.2007 over the Agreement to sell for the plaintiff having paid a sum of Rs.1,50,000/- by cash, Rs.10 Lakhs through cheque and Rs.10 Lakhs to the defendant towards the balance sale consideration to the defendant. As per the terms of Agreement, the defendant should have performed his part of contract within one year from the date of execution of Agreement to sell. The plaintiff has failed to pay the balance sale consideration within the stipulated period as recited in the Agreement. The defendant has denied Agreement to Sell dated.21.1.2002 in respect of the suit schedule property for total sale consideration of Rs.30 Lakhs to the plaintiff.
The plaintiff is relying on oral evidence of P.W.2 and 3 so far execution of Agreement to Sell and passing of sale consideration to the defendant. P.Ws.2 and 3 have no personal knowledge about the actual sale transaction/negotiations between the plaintiff and defendant so far terms of Agreement as recited in the 28 O.S.No.1049/2010 Agreement to Sell. As it is evident from cross-examination of P.W.1, the plaintiff paid sale consideration to the defendant No.1 through cheque and by cash. But the plaintiff has not produced any documentary evidence to that effect. On the other hand, the plaintiff admittedly did not show his readiness and willingness to perform his part of contract within the stipulated period of one year from the date of execution of Agreement to Sell. The plaintiff has failed to pay the balance consideration within 9 months from the date of Agreement to Sell. The plaintiff has not taken steps to enforce Agreement to sell dated.21.1.2002. The defendant No.1 has not executed registered Sale Deed with respect to the suit schedule property as per the terms of Ex.P1. Even the plaintiff had not filed suit either for specific performance of contract or for refund of earnest money against defendant No.1. Except the recitals in the Agreement to sell, nothing is placed on record by the plaintiff to show that he is in possession of the suit schedule property under Ex.P1 since 21.01.2002 till today. 29 O.S.No.1049/2010
25. It is evident from further cross-examination of P.W.1 itself that, after execution of Ex.P1, defendant No.1 expressed his inability to execute a registered Sale Deed with respect to the suit property as a suit is pending before the court and defendant has executed Ex.P2- registered General Power of Attorney dated.8.8.2005 in respect of the suit schedule land in favour of the plaintiff as developer for the purpose of the development of the land and also dealing with the said property in any manner. There is no reference of either Agreement to Sell dated.21.1.2002 or passing of consideration in General Power of Attorney at Ex.P2 so as to take into consideration. On taking into consideration the endorsement made on Agreement to Sell, the plaintiff was said to have paid only Rs.3, 50,000/- during the period from 21.1.2002, 1.12.2002. As per subsequent endorsements, the plaintiff was said to have paid balance consideration of Rs.20 Lakhs on 17.2.2007 and 21.9.2007 after more than two years from the date of execution of General Power of Attorney at Ex.P2.
30 O.S.No.1049/2010
26. It is relevant to note here that, as per certified copy of absolute Sale Deeds at Ex.P11 to Ex.P31, various sites formed in Sy.No.1/2, 1/3, 1/4, 1/5,1/6, 1/7, 2, 10, 50/1, 53, 54/1, 54/4A, 54/4B, 55 of Nagarabhavi village, Yeshwanthpura Hobli Bengaluru North Taluk, were sold to various persons/vendees by Kendria Upadhyayara Sangha, Bengaluru South Taluk, represented by its General Secretary Sri.Mariswamy during the period from February 2007 to April 2007. As recited in each of the Sale Deeds, the vendor has registered the Lease -cum- sale Agreement dated.22.1.1990 and delivered possession of the site under sale to the respective purchasers. In fact Sri.Kariyappa the defendant herein was executed registered power of attorney in respect of Sy.No.1/5 in favour of plaintiff dated.8.8.2005. The common layout was formed in the said Survey Numbers including the suit schedule land Sy.No.1/5 herein. Though the plaintiff is registered General Power of Attorney holder of the defendant in respect of the said land, yet he has signed the said Sale Deeds as consenting witness. Neither the defendant nor the plaintiff is made as a party to the said Sale Deeds except the said General Secretary of Kendria 31 O.S.No.1049/2010 Upadhyayara Sangha. This fact itself goes to show that the General Power of Attorney at Ex.P2 is not at all acted upon.
27. The source of title in respect of the suit schedule property flows from mother of defendant by name Gangamma. The said Gangamma had purchased the land Sy.No.1/5 measuring 3 Acres 36 Guntas and Sy.No.1/7 measuring 28 Guntas of Nagarabhavi village under registered Sale Deed dated.13.01.1931. The mother of the 1st defendant during her lifetime filed a suit for declaration and permanent injunction in O.S.No.2443/1984 against the brother of her husband. During the pendency of that suit, Gangamma died. According to defendant, his mother had executed a Will during her life-time bequeathing all her immovable properties in his favour. The defendant being legal representative and beneficiary of the Will had conducted the proceedings in O.S.No.2443/1984 which came to be decreed in his favour on 24.2.2005. Even the defendants in O.S.No.2443/1984 were preferred the appeal in R.F.A.No.671/2005. During the pendency of that proceeding, the defendant had executed power of attorney as per Ex.P2 on 8.8.2005 in favour of the 32 O.S.No.1049/2010 plaintiff and the defendant is said to have cancelled that power of attorney by way of registered document on 12.1.2001 and also issued notice of canceling the power of attorney to the plaintiff as per Ex.P3 on 11.01.2010 one day prior to execution of alleged document canceling the power of attorney due to irregularities committed by the plaintiff on the basis of the General Power of Attorney executed by him. The defendant has brought to the notice of the plaintiff through notice at Ex.P3 that the plaintiff has committed many irregularities on the basis of his General Power of Attorney and not furnished the Statement of Accounts in respect of the alienation of sites in favour of 3rd parties in the schedule property and thereby misused the General Power of Attorney and the defendant is in position to look after the property without the assistance of the plaintiff and for the said reasons, the defendant intends to cancel the General Power of Attorney at Ex.P2. The defendant has further brought to the notice of the plaintiff that he was canceling the General Power of Attorney and in view of the cancellation, the plaintiff does not have any right, title or interest or possession over the suit property. 33 O.S.No.1049/2010 The defendant has called upon the plaintiff to take notice that in future, the plaintiff is not supposed to indulge in any transaction based on the General Power of Attorney dated. 8.8.2005 as the said document stands cancelled by him by way of that cancellation notice etc.,
28. The plaintiff was replied to the notice of defendant as per Ex.P5 on 16.1.2010 through his Advocate to the Advocate for the defendant. Whereby, the plaintiff has brought to the notice of the defendant about the Agreement of sale dated.21.2.2002 and payment of entire consideration of Rs.30 Lakhs as narrated therein. The plaintiff has also narrated about the past and subsequent litigations in respect of the suit schedule property. As on that date, only 19 sites were available for plaintiff and by virtue of irrevocable General Power of Attorney executed by the defendant, the plaintiff sold all the 19 sites in favour of 3rd parties by entering into an Agreement of Sale and received sale consideration from them. The plaintiff had waited from 2002-05 till the decree came to be passed in favour of the defendant in the said O.S.No.2443/1984 and 34 O.S.No.1049/2010 thereafter, the defendant executed irrevocable General Power of Attorney as per Ex.P2 who had already acted upon in all respect. The defendant has also entered into compromise petition before the Hon'ble High Court of Karnataka with the consent of plaintiff. In pursuance to the Agreement of sale, the plaintiff spent huge amount in all Rs.1, 80, 00,000/- including the sale consideration. The defendant after solving the problems, litigation and development of the layout, started acting in a detrimental manner, contrary to the terms and conditions of the Agreement of sale and also irrevocable General Power of Attorney executed in favour of the plaintiff. Under such circumstances, it is not permissible for the defendant to cancel the irrevocable registered General Power of Attorney as per Clause-22.
As per order dated.14.11.2007 passed in CCC.332/2007(Civil) by the Hon'ble High Court of Karnataka, the said Ramaiah and two others filed that petition U/s.11 and 12 of the Contempt of Court Act against the General Secretary, Kendriya Upadhyayara Sangha and defendant herein for having disobeyed the order dated.28.6.2005 in R.F.A.No.671/2005. The said matter was ended in 35 O.S.No.1049/2010 compromise and that petition came to be rejected. R.F.A.No.671/2005 preferred by Kendria Upadhyayara Sangha against the defendant herein and others also came to be compromised as per the terms of the compromise petitions at Ex.P8 to Ex.P10 subsequent to execution of General Power of Attorney.
29. It is pertinent to note here that the defendant has filed O.S.No.6970/1993 based on the said Will against his brothers and sisters. On the other hand, the other legal heirs of deceased Gangamma have filed O.S.No.3976/2005 for partition and separate possession of their share in respect of properties left behind by Smt.Gangamma and in that suit the defendant and plaintiff herein are the defendants 2 and 7 respectively. The said Gangamma died intestate and there is no partition among the members of the Hindu Undivided Family. On the other hand, the defendant herein is claiming his exclusive right, title or interest over the immovable property left by Smt.Gangamma as beneficiary under the Will. As such, the title of vendor of the plaintiff i.e., the defendant in respect of the suit 36 O.S.No.1049/2010 schedule property is yet to be adjudicated after full fledged trial in the aforesaid suits. This is another important aspect to be taken into consideration.
30. As noted supra, the plaintiff did not choose to enforce the Agreement to Sell within the stipulated period either for specific performance of Contract or for refund of sum of Rs.30 Lakhs from the defendant in pursuance of the terms of the Agreement. The plaintiff has merely sought for declaration that the General Power of Attorney dated.8.8.2005 at Ex.P2 is one for consideration and for consequential relief of permanent injunction restraining the defendants from in any way revoking the said General Power of Attorney or from in any way dealing with the suit schedule property. The nature of the suit schedule property as described in the schedule annexed to the plaint is not at all in existence as it is evident from sale of sites formed not only in land Sy.No.1/5 but also other Survey Numbers as referred in Sale Deeds at Ex.P11 to Ex.P31. The plaintiff had put his signature on each of the said Sale Deeds along with alleged vendor as consenting party, but not as a party to the 37 O.S.No.1049/2010 Sale Deed as General Power of Attorney of the defendant i.e., the owner. The plaintiff has not adduced any evidence to show not only passing of consideration under Agreement to Sell, but also General Power of Attorney was executed for consideration or coupled with interest in favour of the plaintiff in respect of the suit property. In the absence of evidence, it cannot be said that the General Power of Attorney at Ex.P2 is for consideration. The plaintiff came to know from the notice at Ex.P3 dated.11.01.2010 that the defendant was canceling/cancelled General Power of Attorney not only under that notice but also executed registered document on 12.1.2010 thereby cancelled the power of attorney in question but even then, the plaintiff has neither challenged or sought for canceling that document . Though the defendant has disclosed the material fact of execution of registered document dated.12.1.2010, canceling the power of attorney, yet he has not produced that document so as to take into consideration. Looking to the facts and circumstances surrounding the execution of power of attorney as well as cancellation of the same by executing 38 O.S.No.1049/2010 the registered document, the suit of the plaintiff in the present form itself is not maintainable.
31. The counsel for the plaintiff has argued that the defendant has stated in his notice that he intended to cancel the General Power of Attorney and he is canceling the General Power of Attorney, but it was not cancelled. Further the General Power of Attorney is a registered document. It is a bilateral contract signed by both the parties. A registered instrument cannot and shall not be cancelled by means of notice or a letter. As such, the notice of cancellation has no any binding in the eye of law as registered instruments prevails over the notice unless the instrument is cancelled by means of one more registered instrument of cancellation or by order of the court it cannot be said that, the General Power of Attorney was cancelled.
32. The counsel for the plaintiff has placed his reliance on a decision reported in AIR 1969 SC 73 in Seth Loon Karan Sethiya Vs. Ivan E.John and Others. In the said case, "the appellant was indebted to a Bank. He executed a power of attorney in favour of the Bank authorising the 39 O.S.No.1049/2010 Bank to execute a decree obtained by the debtor against a third person and credit the realisations to the debtor's account. The bank levied execution of the decree. The execution application was filed in the name of the appellant but it was his power of attorney holder. The appellant objected to the execution. Under such circumstances, the Hon'ble Supreme Court of India has held that on the tenor of the document as well as from its terms (i) that the power given to the Bank was a power coupled with interest and same was irrevocable in view of Section 202 of Contract Act"
33. In AIR 1979 Karnataka 126 in Smt.Nagar Susheela Nayak, Vs. The Headquarters Sub-Registrar and Deputy Commissioner of Stamps, Tumkur and another, wherein the Special Bench of our own Hon'ble High Court has held that:
"It was clear that an interest in the property was created in favour of the Bank. Therefore, the petitioner had no power to revoke the deed unilaterally. Thus it is clearly falls under 40 O.S.No.1049/2010 Entry 41 (e) of the Karnataka Stamp Act."
34. In AIR 1973 Gauhati 90 in Mst.Jurmati Bewa and others, Vs. Anwar Rasul and others, wherein it is held that:
"when a party to a suit avoids the witness box, the presumption is that he is withholding himself to avoid pertinent questions in cross-examination."
35. In the instant case as noted supra, the defendant has contested the claim of the plaintiff by filing his written statement and also cross-examined P.Ws.1 to 3. But the defendant for the reasons best known to him has not entered into witness box and deposed in support of his defence. Infact, defendants 2 to 6 themselves were got impleaded by filing application and participated during trial and got examined D.W.1 and also adduced documentary evidence. However defendants 2 to 6 for the reasons best known to them have got deleted them from this suit. As such, no other evidence is placed on record as against the plaintiff except the cross-examination P.W. 1 to 3 by the counsel for defendant No.1.
41 O.S.No.1049/2010
36. It is very much relevant to note here that the burden of proving issues arising out of the pleadings of both the parties is exclusively on the plaintiff so as to grant reliefs as sought against defendants herein. When the plaintiff has failed to discharge his burden of proving material facts in controversy and then the question of onus shifting on the defendant does not arise. Looking to the strange circumstances of the case between the parties, the defendant not-entering into witness box is not fatal to the defence so set up by the defendant as against the claim of the plaintiff. On taking into consideration the nature of the reliefs claimed by the plaintiff against the defendant in respect of the suit schedule property, the question of possession of the suit property is totally irrelevant at this juncture.
37. On the other hand, the counsel for the defendant has placed his reliance on Judgment passed in W.P.No.20683/2012 in case of Gaddam Laxmaiah and Others dated.30.4.2013 by Hon'ble Andhra High Court wherein, it is observed that " there is a distinction between registration of 42 O.S.No.1049/2010 deeds canceling transactions of transfer of title and those canceling the power of attorney and held that in the light of the amendment to Rule 26(i) (k) (i), while the deeds unilaterally executed purporting to cancel registered transactions of transfer of title cannot be registered, however, held that as the execution of power of attorney in respect of a property would not lead to a transaction of transfer of title in respect of the property, it is always the prerogative of the principal to withdraw the authorisation, that an agent cannot derive any independent rights under such Agreements and that the same can be unilaterally cancelled and such documents registered."
38. The ratio laid down in the aforesaid decision is aptly applicable to the facts of the instant case. It is settled principle of law that power of attorney is an authority whereby one is set instead or in place of another to act for him. Power of attorney does not include cases of contract creating relationship of principal and agent. In case of agency the agent himself executes instrument and in case 43 O.S.No.1049/2010 of power of attorney the name of the principal in the instrument is used. Both the agent and the attorney act on behalf of another person. A power of attorney is a special power of agency it may be general or special. A holder of power of attorney was as agent cannot go beyond the principal.
39. It is proved form the preponderance of evidence on record with all probabilities that there is no link between Agreement to Sell dated.21.2.2002 and General Power of Attorney dated.8.8.2005 said to have been executed between the parties. The claim of the plaintiff under Agreement to Sell is barred by law of limitation. When the plaintiff has failed to prove that General Power of Attorney at Ex.P2 is executed in his favour is an irrevocable General Power of Attorney and the defendant being executant of the General Power of Attorney has got every right to cancel the registered General Power of Attorney either revocable or irrevocable executed in favour of the plaintiff and then the plaintiff cannot seek for the relief of declaration as sought against the defendants. Infact, the Agreement of Sale or 44 O.S.No.1049/2010 General Power of Attorney is not at all acted upon. In the absence of relevant documentary evidence, the bald oral evidence of P.W.1 alone is not sufficient and the same has been falsified by the execution of the Sale Deeds at Ex.P11 to Ex.P31. As such, the plaintiff has failed to prove his possession over the suit schedule property as on the date of filing of the suit and question of defendant interfering into the alleged possession of the plaintiff over the suit schedule property does not arise at all. Hence I answer Issue Nos.1 to 4 in the Negative.
40. Issue No.5:- The defendant has merely pleaded that the suit of the plaintiff is for declaration and consequential relief of permanent injunction. The plaintiff ought to have paid the Court Fee on the market value of the suit schedule property as on the date of the suit. The defendant has described the suit schedule property as a residential land but not produced relevant documents to that effect. However, the plaintiff has valued the suit at Rs.1000/- and paid separate Court Fee for the relief of declaration and consequential relief of permanent injunction 45 O.S.No.1049/2010 U/s.24 (d) and 26 (c) of Karnataka Court Fees & Suits Valuation Act. Looking to the nature of the reliefs claimed in respect of the residential/non agricultural land, the plaintiff ought to have valued the suit U/s.24 (b) of the Karnataka Court Fees & Suits Valuation Act and computed the market value atleast as shown in the Agreement of Sale i.e., Rs.30 Lakhs and could have paid the Court Fee on half of the market value i.e., Rs.15 Lakhs. Neither the plaintiff nor the defendant has produced material evidence either oral or documentary for determining the actual market value of the suit schedule property as on the date of the suit. Looking to the facts and circumstances, the valuation made at Rs.1000/- and Court Fee paid thereon is improper/insufficient. As such, it is very much necessary to direct the plaintiff to pay the deficit Court Fee for the relief of declaration and consequential relief of permanent injunction as provided U/s.24 (b) of the Karnataka Court Fees & Suits Valuation Act. If the market value of the schedule property as shown in the Agreement of Sale is taken into consideration and then the plaintiff is liable to pay Court Fee of Rs.87,125/-. After deducting the court fee Rs.50/- already paid, the 46 O.S.No.1049/2010 deficit Court Fee of Rs.87, 075/- should be collected from the plaintiff before drawing the decree. Hence I answer Issue No.5 in the Negative.
41. Issue No.6:- In view of my findings on the issues No.1 to 5 and the reasons stated therein, in the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is dismissed. The parties shall bear their own costs towards the suit.
Draw up a decree accordingly after collecting the deficit court fee of Rs.87,075/- from the plaintiff. (Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 16th day of September 2015.) (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore 47 O.S.No.1049/2010 A N N E X U R E I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Sri.K.Lakshminarayana
P.W.2: Sri.M.C.Madhu
P.W.3: Sri.Hanumantharayappa
(b) Defendant's side : Nil
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P1: Original Agreement of Sale dated
21.01.2002
Ex.P2: Original Registered Power of
Attorney dated 08.08.2005
Ex.P3: Office Copy of Legal Notice dated
11.01.2010
Ex.P4: Postal Acknowledgment
Ex.P5: Reply Notice dated.16.01.2010
Ex.P6: Certified copy of order sheet in
O.S.2443/1984
Ex.P7: Certified copy of order in C.C.C
No.332/2007 dated: 14.11.2007
Ex.P8-P10: Three Certified copies of
compromise petition filed in RFA
No.671/2005 Certified copy of
Ex.P11: sale deed dated. 09.04.2007
Certified copy of sale deed dated
Ex.P12: 26.02.2007
Certified copy of sale deed dated
Ex.P13: 04.04.2007
Certified copy of sale deed dated
Ex.P14: 26.02.2007
Two Certified copes of sale deed
48 O.S.No.1049/2010
Ex.P15& 16: dated: 15.3.2007
Ex.P17: Certified copy of sale deed dated
19.02.2007
Ex.P18: Certified copy of sale deed dated
24.03.2007
Ex.P19-P21: Three Certified copies of sale Ex.P22: deed dated: 15.03.2007 Certified copy of sale deed dated Ex.P23: 25.03.2007 Certified copy of sale deed dated Ex.P24: 08.03.2007 Certified copy of sale deed dated Ex.P25: 19.03.2007 Certified copy of sale deed dated Ex.P26: 08.03.2007 Certified copy of sale deed dated Ex.P27: 19.02.2007 Certified copy of sale deed dated Ex.P28: 07.03.2007 Certified copy of sale deed dated Ex.P:29: 15.03.2007 Certified copy of sale deed dated Ex.P30: 12.03.2007 Certified copy of sale deed dated Ex.P31: 19.03.2007 Certified copy of sale deed dated 09.04.2007
(b) For defendant's side:- NIL (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore 49 O.S.No.1049/2010 (Judgment pronounced in open court) The suit of the plaintiff is dismissed.
The parties shall bear their own costs towards the suit.
Draw up a decree accordingly after collecting the deficit court fee of Rs.87,075/- from the plaintiff.
(vide Judgment passed) 50 O.S.No.1049/2010 XII ACCJ;Bangalore