Karnataka High Court
Sri. Jawahar Gopal vs Sri. Vishal Baliga D on 11 July, 2025
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NC: 2025:KHC:25510
MFA No. 3947 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 3947 OF 2025 (CPC)
BETWEEN:
1. SRI. JAWAHAR GOPAL
S/O GOPAL RAMANARAYAN
AGED ABOUT 68 YEARS
RAMKRUPA, 6TH MAIN ROAD
GANDHINAGAR
BANGALORE - 560 009
2. SMT. SHEELA GOPAL
W/O GOPAL RAMANARAYAM
AGED ABOUT 88 YEARS
RAMKRUPA, 6TH MAIN ROAD
GANDHINAGAR
BANGALORE - 560 009
REPRESENTED BY GPA HOLDER
MR. JAWAHAR GOPAL
Digitally signed AGED ABOUT 68 YEARS
by ANJALI M
Location: High PRESENTLY BOTH THE APPELLANTS
Court of ARE RESIDENTS AT NO.21
Karnataka
3RD FLOOR, RAMAKRIPA
BENSON CROSS, OPPOSITE MILLER'S ROAD
BENSON TOWN, BENGALURU 560 046
...APPELLANTS
(BY SRI. DHANANJAY JOSHI, SENIOR COUNSEL FOR
SMT. KAVITHA DAMODARAN, ADVOCATE)
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NC: 2025:KHC:25510
MFA No. 3947 of 2025
HC-KAR
AND:
SRI. VISHAL BALIGA D
S/O DINESH BALIGA
AGED ABOUT 34 YEARS
RESIDING AT NO.56/3
MADHURI, BOREWELL ROAD
BANGALORE NORTH, WHITEFIELD
BANGALORE-560 066
...RESPONDENT
(BY SRI. C.V. NAGESH, SENIOR COUNSEL A/W
SRI. SUBRAMANYA R, ADVOCATE)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT. 02.06.2025 PASSED ON IA NOS. I
AND II IN O.S.NO. 1708/2024 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, ANEKAL,
ALLOWING THE IA.NOS 1 AND 2 FILED U/O.39 RULE 1 AND 2
R/W SEC.151 OF CPC.
THIS MFA HAVING BEEN RESERVED FOR JUDGMENT,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This Misc. First Appeal is filed under Section 104 read with Order 43 Rule 1 (r) of the CPC, 1908 by the appellants challenging the order dated 02.06.2025 passed by the learned II Addl. Senior Civil Judge and JMFC, Anekal, in OS No.1708/2024 whereby, the learned trial -3- NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR Court allowed the IA's 1 and 2 filed by the plaintiff respondent under Order 39 Rule 1 and 2 read with Sec.151 of CPC, restraining the defendants their men, agents and anyone claiming through or under them from interfering with the respondents possession with the suit schedule property and also from cutting and removing standing trees in the said property pending disposal of the suit.
2. The primary contentions of Sri.Dhananjay Joshi learned Senior Counsel appearing for the appellants in the present appeal is that, they are the lawful owners and in possession of the plaint such property by virtue of registered sale dead 6.9.2005 executed by appellant no.1, acting under a (GPA) said to have been executed by late Smt.Sharada Baliga i.e., the grand mother of the respondent in the year 1995. The appellants further contend that, the revenue records reflect their names, the General Power of Attorney is genuine and that their title was indirectly affirmed in earlier litigation culminating -4- NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR before the Hon'ble Apex Court. The appellants further submit that, the respondent has failed to establish a prima facie case and learned Trial Court failed to appreciate the documents and the legal position correctly while granting the injunction.
3. Learned Senior Counsel pointed out that, the reasoning of the trial Court and specifically contend that, by virtue of the power of attorney, the appellant no.1 has executed the sale deed and the same is not challenged by any of the parties much less, the respondent. He relied upon various documents produced by the appellants in this appeal and submits that, the plaintiff respondent is no way concerned to the schedule-B property at any point of time and falsely claiming right over the property alleged to have been executed by his grand mother Sharada Baliga dated 10.1.1994. He would submit that, the learned trial Court has committed a grave error in believing the video clip produced by the respondent alleging that, there was attempt of dispossession of plaintiff from suit schedule -5- NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR property by using anti-social elements with the help of police. Repeatedly the respondent is submitting about alleged high handed act of anti-social elements and police to help the appellants which is not true. The learned counsel for the appellants further relied upon the observations of the trial Court which according to him are erroneous. In addition to the grounds urged in the appeal memo, he submits, there is concrete defence of the appellants before the trial Court and the serious objections raised to allow the application. Therefore, he prays to allow this appeal and set aside the impugned order.
4. On the other hand, the counsel for the respondent Sri C.V.Nagesh asserts that, the plaint schedule properties are bequeathed to the plaintiff by his grand mother Sharda Baliga by way of duly executed will dated 10.1.1994. The learned counsel for respondent would submit that, by virtue of the said Will, it is plaintiff who has been in possession of suit schedule property which includes a residential house in which plaintiff and his family reside -6- NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR ever since the demise of his grandmother in the year 1997. The plaintiff disputes the validity and legality of GPA and the consequent sale deed dated 6.9.2005. He would contend that, the appellants with an intention to dispossess the plaintiff unlawfully and for commercial motives attempted to enter the plaint B- Schedule property with the help of anti-social elements and police and tried to cut and remove valuable trees standing therein. In support of his submission, the learned counsel for respondent also relied upon various documents produced along with memo so also video clip showing alleged interference by the defendants. He submits that, the trial Court with well reasoned order, has passed the impugned order which does not call for any interference by this Court and thus, prays to dismiss this appeal.
5. Having heard both the counsel for the parties and having perused the entire records of the case including the impugned order and the material placed on record, this Court finds that, learned trial Court has passed a well- -7-
NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR reasoned and legally sustainable order which does not call for interference by this Court in its appellate jurisdiction for the following reasons:
The controversy in the present case essentially centers around two documents - firstly, a Will executed by Smt.Sharada Baliga in favour of the respondent on 10.1.1994, and secondly, a general power of attorney said to have been executed by her on 19.1.1995 in favour of appellant no.1. As per the documents produced, the Will is a registered document executed much prior to alleged GPA and by virtue of this Will, the testator has bequeathed the plaint schedule properties in favour of the respondent. The GPA on the other hand, is claimed to have authorized the appellant no.1 to sell the plaint B-Schedule property.
Based on the GPA the appellant no.1, is said to have executed a sale deed in favour of his own mother i.e., appellant no.2 on 6.9.2005.
6. A General Power of Attorney is essentially a legal instrument through which one person known as -8- NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR principal authorizes another known as agent or attorney, to act on behalf of the executants in specified matters. In the absence of any special statute to the contrary, such an instrument is governed by the principles of Agency under the provisions of Indian Contract Act, 1872. The foundational nature of power of attorney is that, it merely facilitates representation; it does not create or transfer ownership rights in itself. The agent derives no proprietary interest in the subject matter unless the instrument specifically confers such interest. By the operation of law, an agency relationship stands terminated upon the death or mental incapacity of either the principal or the agent. This principle is rooted in the concept that the agency is a personal relationship based on mutual trust and confidence However, there is one statutory exception to this rule. If the power of Attorneys coupled with interest - meaning thereby, the agent is conferred with not just authority, but also, an independent, proprietary rights or financial interest in the subject matter - the agency does not automatically -9- NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR terminate with the death of the principal. Such an arrangement must be clearly expressed and supported by consideration.
7. Now turning to the facts of this case, the respondent-plaintiff is basing his claim on the registered Will executed by Sharada Baliga. It is important to note that, the Will is solemn document intended to operate after the death of the testator. It is governed by the provisions of Indian Succession Act. For the Will to be valid, the law requires that, the testator must have the legal capacity to make a Will and that the document must be properly executed and attested. The signature of the testator and the attestation by atleast two attesting witnesses are essential formalities. Once these requirements are satisfied, the Will stands on a strong legal footing.
8. It is settled position of law that, a general power of attorney is an instrument of agency and is governed by the provisions of Indian Contract Act, 1872.
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NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR The legal consequence of GPA is not coupled with interest and it automatically terminates upon the death of principal. In the present case, it is not in dispute that, Smt.Sharada Baliga passed away on 14.9.1997. The GPA is dated 19.1.1995, therefore, lapsed upon the death, unless it can be shown that the same was irrevocable and coupled with interest. However, the recitals of the GPA as per the records, do not disclose that, any proprietary interest or consideration was conveyed to the agent i.e. appellant no.1. Hence, on a prima facie basis, the GPA now relied upon by the appellants was not one coupled with interest and accordingly, it ceased to have legal effect upon the death of Smt.Sharada Baliga on 14.9.1997. Despite such termination, or lapse, the sale deed was executed by appellant no.1. on 6.9.2005 i.e., nearly eight years after the death of principal. This, by itself, renders the said conveyance prima facie invalid and void ab initio. It is further pertinent to note that, the very person who held the GPA, executed the sale deed in favour of his own mother
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NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR i.e., appellant no.2 which adds to the suspicion and demands strict scrutiny with regard to the conduct of the appellant during the course of trial. The GPA has also been challenged by the respondent as a forged document. The respondent has placed on record an expert opinion by handwriting analyst suggesting that, the signatures appearing on the GPA do not match the admitted signatures of Smt.Sharada Baliga. Although the veracity of this expert opinion shall be tested in trial, it certainly fortifies the respondent's case at this interlocutory stage.
9. On the other hand, the Will executed by Smt.Sharada Baliga in favour of respondent is a registered testamentary instrument which was not the subject matter of challenge in the earlier partition suit in OS No.10195/1995 or the connected appeal in RFA No.1664/2012 or before the Apex Court. The Will has been placed on record and prima facie satisfies the requirement of Section 63 of Indian Succession Act, 1925. The law is well settled that, a Will operates only after the death of
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NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR testator and Will executed and attested Will shall prevail unless there exists strong suspicious circumstance. In the case on hand, at this stage, no suspicious circumstance is surrounding in execution of the said Will has been pleaded or demonstrated by the appellants. Furthermore, the appellants have relied upon certain entries in the revenue record namely RTC's to claim possession. However, the very mutation application MR 34/2005 seeking entry of appellant nos. 2 name was rejected by the Tahsildar for non-production of GPA. This casts serious doubt on how appellant's no.2's name subsequently appeared in the RTCs. The respondent, in turn has placed on record numerous documents to demonstrate his continuous possession, including residential documents and electricity bills. Even the appellants also admit that, the respondent is residing in residential house with his family members but, it is with their permission. Most crucially, CCTV video footage as observed by the trial Court in the course of order show that the appellants along with group of persons including
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NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR police officials trespassed upon the property, broke down the compound wall using JCBs and intimidated the residents. In the course o the order, the trial Court has remarked that, the visuals in the video clip are disturbing and condemnable and there was an attempt of dispossession which must not be condoned in a civilized society governed by the rule of law.
10. On perusal of the impugned order, the learned trial Court has examined the pleadings, documents placed on record and relevant legal principles including the scope of grant of temporary injunction under Order 39 Rule 1 and 2 of CPC and also conducted the threshold test i.e. whether there exists a prima facie case, whether balance of convenience tilts in favour of applicant and whether irreparable injury will be caused if relief is denied - has been applied by the trial Court in its full breadth. The trial Court has rightly concluded that respondent-plaintiff has established a strong prima facie case particularly on account of his uninterrupted possession and expressed
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NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR grave doubts surrounding the GPA and the sale deed. The balance of convenience lies as the trial Court is preserving the status quo rather than the appellants to take law into their own hands. Irreparable injury is manifest especially considering the acts of destruction and risk of permanent deprivation of possession. Considering all these factors, the trial Court has passed the impugned order.
11. Another contention of appellants regarding lack of jurisdiction has also been addressed by the trial Court. The plaint comprises suit schedule property i.e. A and B while B is situated in Nallurhalli within the limits of Civil Court and B-Schedule is within the jurisdiction of Anekal Court. It is well established that, where the subject matter of suit comprises of properties situated in different Courts, the plaintiff has liberty to choose competent Court which has jurisdiction over any one of the properties. The trial Court's exercise of jurisdiction is not erroneous.
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NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR
12. This Court is also conscious of the limited scope of interference in appeals arising from discretionary orders passed under Order 39 Rules 1 and 2 of CPC. It is settled principle that, unless the order under challenge is perverse, arbitrary or contrary to settled principles of law, the appellate Courts cannot lightly interference with such order. The order passed by the trial Court is neither perverse nor arbitrary. It is supported by legal reasons, consideration of equity and fact-based evaluation of records.
13. For the foregoing reasons, this Court finds that, there is no merit in the present appeal. The impugned order does not suffer from legal infirmity or error of jurisdiction. Resultantly, I pass the following:
ORDER
(i) Appeal is dismissed.
(ii) The order dated 2.6.2025 passed by the learned II Addl.Senior Civil Judge and
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NC: 2025:KHC:25510 MFA No. 3947 of 2025 HC-KAR JFMC, Anekal, in OS No.1708/2024, is hereby affirmed.
(iii) The observations made herein are limited to the adjudication of this appeal filed by the appellants under Order 43 Rule 1 (r) of CPC and shall not influence the trial Court during trial or final adjudication of the suit.
Costs made easy.
Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE SK List No.: 2 Sl No.: 5