Karnataka High Court
Sri Somashekar vs Smt.Sunanda on 23 September, 2025
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NC: 2025:KHC:38305
RFA No. 566 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
REGULAR FIRST APPEAL NO.566 OF 2022 (DEC/POS)
BETWEEN:
1. SRI SOMASHEKAR
S/O LATE GOVINDAPPA,
AGED ABOUT 45 YEARS,
R/AT NO.7/1, 1ST MAIN,
NANJUNDESHWARA NAGAR,
NANDHNI LAYOUT,
BANGALORE-560 096.
2. SRI B. BHANUPRAKASH
S/O LATE GOVINDAPPA
AGED 39 YEARS,
R/AT NO.323, 3RD MAIN,
VIJAYANANDA NAGAR,
NANDHINI LAYOUT,
BANGALORE-560 096.
...APPELLANTS
Digitally signed by
MAHALAKSHMI B M (BY SRI PRASANNA KUMAR P., ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
SMT. SUNANDA
W/O BASAVARAJU,
AGED ABOUT 51 YEARS,
R/AT NO.126, 4TH CROSS,
MUNESHWARA BLOCK,
MAHALAKSHMI LAYOUT,
BANGALORE-560 086.
...RESPONDENT
(BY SRI ANDANAPPA GURAPPA BALLOLLI, ADVOCATE)
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NC: 2025:KHC:38305
RFA No. 566 of 2022
HC-KAR
THIS RFA IS FILED UNDER SECTION 96 READ WITH UNDER
ORDER 41 RULE 1 OF CPC., CALL FOR RECORDS, IN
O.S.NO.7157/2012 ON THE FILE OF X ADDITIONAL CITY CIVIL AND
SESSION JUDGE, BENGALURU (CCH-26); SET ASIDE THE IMPUGNED
JUDGMENT AND DECREE DATED 21.01.2022 PASSED IN
O.S.NO.7157/2012 ON THE FILE OF THE X ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT
FOR DECLARATION, POSSESSION AND INJUNCTION.
THIS APPEAL COMING ON FOR ORDER, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
The present regular first appeal is filed by the defendants assailing the judgment and decree dated 21.01.2022 passed in O.S No.7157/2012 on the file of the X Additional City Civil and Sessions Judge, Bengaluru (CCH-26) ('the Trial Court for short). By the impugned judgment and decree, the trial court, partly decreed the suit, by declaring the plaintiff as lawful owner under the registered sale deed dated 26.09.2008 and directed delivery of vacant possession, while dismissing the suit for permanent injunction.
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR Plaint averments:
2. The plaintiff claims to be the absolute owner of the suit schedule property i.e., Site No.11, Survey No.1, Block No.56 of Jarakabandikaval Village, Yeshwanthapura Hobli, Bengaluru North Taluk (herein referred to as the 'suit property' for short). It is the case of the plaintiff that the property was originally a gomal land granted by the Government of Mysore in 1969 to Smt. Venkatamma. She alienated 50 guntas in favour of K. Shanmugam, K. Kadiravelu and K. Thangavelu by registered sale deed dated 02.08.1980. Further, the purchasers formed sites, through GPA and affidavit dated 10.01.1984 site No.11 was put in possession of Smt. Lakshmamma. Later, the plaintiff agreed to purchase directly from the surviving owners i.e., K. Thangavelu and Smt. Vijaya, wife of late K. Kadiravelu and they executed a registered sale deed dated 26.09.2008 in plaintiff's favour with Anandakumar (son of K. Kadiravelu) and Lakshmama, as consenting witnesses.
It is stated that on the strength of the sale deed, the -4- NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR plaintiff is a lawful owner and in possession. The defendants, without any right or title, claimed under a sale deed dated 29.07.2008 executed by their mother Ramarathnamma @ Hemaratnamma as GPA holder. By that time, the two GPA executants (Shanmugam and K. Kadiravelu) had already died extinguishing the authority. Further, the earlier suit O.S. No.7591/2008 for permanent injunction which was decreed, the Court held that their possession was only settled possession 'liable to be evicted through due process' and hence, the plaintiff sought for declaration of ownership, recovery of possession and permanent injunction.
Written statement averments:
3. The defendants denied the plaintiff's ownership and possession. They admitted that the original grant in favour of Venkatamma and sale of 50 guntas in favour of K. Shanmugam, K. Kadiravelu and K. Thangavelu, but denied plaintiff's chain of transaction. They claimed that their mother Ramarathnamma was a valid GPA holder -5- NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR dated 16.12.1983 executed by the three owners. On that basis, she executed the sale deed dated 29.07.2008 in their favour. It is contended that they are absolute owners in possession and that the plaintiff's sale deed is invalid because the said sale deed was not executed by all the legal heirs. Further, the GPA holder Lakshmamma had no valid authority to transfer. The defendants pleaded adverse possession, claiming continuous and uninterrupted possession since their purchase.
4. The trial Court, upon considering the oral and documentary evidence, observed that the plaintiff has proved ownership, the defendants did not prove title, GPA of 1983-Ex.D3 lost force on death of the executants, their mother had no right to sell in the year 2008 and the defendants' possession was recognized as a settled possession under the earlier suit. The plaintiff is entitled for recovery of possession. The injunction claimed was rejected, as there was no evidence of an alienation attempt. Since the defendants raised adverse possession, -6- NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR the burden was on them and they failed to establish that they were in continuous possession adverse to the knowledge of the plaintiff. The suit was partly decreed and declared that the plaintiff is the absolute owner under the registered sale deed dated 26.09.2008, defendants were directed to deliver vacant possession within two months, failing which the plaintiff may recover possession through Court process. Relief of permanent injunction came to be dismissed.
5. Heard learned counsel for the appellants and learned counsel for the respondent.
6. Learned counsel appearing for the appellants/defendants submits that the joint owners of the property namely K. Shanmugam, K. Kadiravelu and K. Thangavelu executed an irrevocable General Power of Attorney dated 16.12.1983-Ex.D3 in favour of Ramarathnamma @ Hemarathnamma (mother of defendants). Pursuant to the said authority, Ex.D2, a -7- NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR registered sale deed dated 29.07.2008, was executed by the said GPA holder Ramarathnamma @ Hemarathnamma in favour of the defendants, thereby conveying title and possession. It is contended that the trial Court erred in discarding Ex.D3 and holding that Ramarathnamma lost her rights on account of death of two executants prior to execution of Ex.D2. It is urged that under Section 3 of the Powers of Attorney Act, 1882, unless knowledge of the death of the principal is established, acts of the attorney cannot be invalidated and therefore, the sale deed in favour of the defendants is valid and binding. It is further contended that the plaintiff can claim title only to the extent of her vendors' title and in the instant case, all the joint owners of the property or their legal heirs have not conveyed their share in the suit site. It is argued that the plaintiff was well aware about the existence of other co-
owners and their heirs, yet proceeded to purchase under Ex.P4. The death certificates produced by the plaintiff Ex.P6 and Ex.P7 clearly establish that Shanmugam and -8- NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR Kadiravelu had expired long prior to Ex.P4. Therefore, the sale deed executed in favour of the plaintiff at Ex.P4 dated 26.09.2008 suffers from want of title of all co-owners.
7. It is argued that the defendants had filed O.S No.7591/2008 seeking permanent injunction against the plaintiff and the said suit has been decreed in their favour and the judgment is marked at Ex.P20. Further, the regular first appeal preferred by the plaintiff against the said decree came to be dismissed for non-prosecution, and the finding that the plaintiff was not in possession has attained finality. It is argued that the plaintiff has not sought for cancellation of the sale deed in favour of defendants under Ex.D2. Without seeking such cancellation, the present suit for declaration and possession is not maintainable. Further, the principle under Section 48 of the Transfer of Property Act, 1882, squarely applies in cases involving successive transfers by persons with limited rights. Accordingly, the earlier conveyance (Ex.D2) in favour of the defendants prevails -9- NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR over the subsequent sale. In O.S. No.7591/2008, it has already been held that the plaintiff was not in possession and the defendants are in settled possession. It is submitted that the trial Court misdirected itself in law and facts and the impugned judgment and decree deserves to be set aside.
8. Learned counsel for the appellants has relied upon the following decisions:
i. D.N. Raju Vs. Smt. Santosh Verma and another1 (D.N. Raju) and Smriti Debbarma (Dead) Through Legal Representative Vs. Prabha Ranjan Debbarma and others2 (Smriti Debbarma) to contend regarding burden of proof;
ii. A. Abdul Rashid Khan (Dead) and others Vs. P.A.K.A. Shahul Hamid and others3 (A. Abdul Rashid Khan), to contend that the burden is on the plaintiff to establish title, and it is only when the plaintiff 1 2006 SCC Online AP 1103 2 Civil Appeal No.878/2009 3 (2000) 10 SCC 636
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR establishes the title, the burden shifts on the defendant to prove his plea of adverse possession;
iii. SK. Golam Lalchand Vs. Nandu Lal Shaw @ Nand Lal Keshri @ Nandu Lal Bayes @ Ors4 (SK. Golam Lalchand);
iv. State of H.P. and others Vs. Baldev and others5 (Baldev);
v. Union of India and others Vs. Vasavi Cooperative Housing Society Limited and others6 (Vasavi Cooperative Housing Society).
9. Per contra, learned counsel appearing for the respondent submits that the appellants/defendants' sale deed under Ex.D2 dated 29.07.2008 is inherently defective. Two of the joint owners, namely Shanmugam and Kadiravelu had already died prior to the execution of Ex.D2. This fact is clearly established through the death 4 Civil Appeal No.4177/2024 5 2015 SCC online HP 3847 6 (2014) 2 SCC 269
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR certificates (Exs.P6 and P7) and has been recorded in paragraph No.13 of the trial Court's judgment, and consequently, the GPA holder, Smt. Ramarathnamma, had no authority to execute the sale deed in the absence of executants. Further, it is contended that the question of the plaintiff seeking cancellation of such a void and ineffective document therefore does not arise.
10. The GPA dated 16.12.1983-Ex.D3 is not a registered instrument conveying any interest. It is not coupled with consideration, nor was any trust created and as per the settled law and the ratio in Suraj Lamp & Industries Private Limited (2) Through Director Vs. State of Haryana and Another7 (Suraj Lamp), GPA transactions do not convey title. Thus, Ex.D2 executed on the strength of Ex.D3 is a nullity in the eye of law. The plaintiff purchased the suit property under Ex.P4 dated 26.09.2008 executed by K. Thangavelu and Smt. Vijaya (wife of deceased co-owner K. Kadiravelu). PW4- 7 (2012) 1 SCC 656
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR Anandakumar son of Kadiravelu also joined as a consenting witness. Therefore, the plaintiff derived lawful title from living co-owners and heirs of the deceased. Though O.S. No.7591/2008 was decreed in favour of the defendants, the trial Court in that case specifically held that the defendants' possession was only a settled possession 'without legal right' and they are liable to be evicted through due process. Thus, the present suit for declaration and possession was filed in pursuance of that liberty and the decree of possession is therefore proper. Learned counsel has placed reliance on the decision of the Apex Court in the case of M.S. Ananthamurthy and another Vs. J. Manjula Etc.,8 (M.S. Ananthamurthy).
11. Having heard the learned counsel for the parties, the point that arises for consideration is:
"Whether the impugned judgment and decree passed by the trial Court requires any interference by this Court?"8
Civil Appeal Nos.3266-3267/2025
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR
12. The law is well settled that when the plaintiff approaches the Court seeking for declaration, the burden of proof is on the plaintiff to establish title. The Apex Court in the case of and the Apex Court in the case of Vasavi Cooperative Housing Society has held at paragraph Nos.15 to 20 as under:
"15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.
16. The High Court, we notice, has taken the view that once the evidence is let in by both the parties, the question of burden of proof pales into insignificance and the evidence let in by both the parties is required to be appreciated by the court in order to record its findings in respect of each of the issues that may ultimately determine the fate of the suit. The High Court has also proceeded on the basis that initial burden would always be upon the plaintiff to establish its case but if the evidence let in by the defendants in support of their case probabilises the case set up by the
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR plaintiff, such evidence cannot be ignored and kept out of consideration.
17. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in Moran Mar Basselios Catholicos v. Thukalan Paulo Avira observed that: (AIR p. 37, para 20) "20. ... in a suit [for declaration] if the plaintiffs are to succeed they must do so on the strength of their own title."
18. In Nagar Palika, Jind v. Jagat Singh this Court held as under: (SCC p. 427c) "The onus to prove title to the property in question was on the plaintiff-respondent. ... In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit."
19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited.
20. We notice that the trial court as well as the High Court rather than examining that question in depth, as to whether the plaintiffs have succeeded in establishing their title on the scheduled suit land, went on to examine in depth the weakness of the defendants' title. The defendants relied on the entries in the GLR and their possession or repossession over the suit land to non-suit the plaintiffs. The court went on to examine the correctness and evidentiary value of the entries in the GLR in the context of the history and scope of the Cantonment Act, 1924, the Cantonment Land Administration Rules, 1925 and tried to establish that no reliance could be placed on the GLR. The question is not whether the GLR could be accepted or not, the question is, whether the plaintiff could prove its title over the suit property in question. The entries in the GLR by themselves may not constitute title, but the
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR question is whether the entries made in Ext. A-3 would confer title or not on the plaintiff."
(emphasis supplied)
13. In the instant case, the plaintiff discharged the burden by producing the documents at Exs.P1 to P23. The burden later on shifted to the defendants to prove valid conveyance, which they failed. The plaintiff purchased site under Ex.P4 dated 26.09.2008 from K. Thangavelu, a co- owner and Smt. Vijaya, (wife of deceased co-owner Kadiravelu). PW.4-Anandakumar (son of Kadiravelu) and Smt. Lakshmamma, earlier GPA holder has joined as consenting witnesses. Thus, the deed-Ex.P4 bears not only the execution by surviving co-owner but also express consent of heirs of another co-owner. The omission of heirs of Shanmugam, if any, does not invalidate Ex.P4. At the best, the un-transferred shares remain available to the legal heirs of such co-owner to assert their rights in the appropriate proceedings. However, such a defect in the conveyance cannot be exploited by the defendants, who are complete strangers to the title and whose sale deed
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR under Ex.D2 is void ab initio. In other words, the right to challenge the transfer on the ground that all the co- owners or their heirs have not joined vests exclusively in those non-joining heirs, and not in third-party like the defendants, who claimed under an invalid GPA sale. This is reiterated by the Apex Court in the case of SK. Golam Lalchand stated supra, which is relied by the appellants. The said decision is not applicable to the present facts.
14. As stated supra, in the present case, it is noticed that the other legal heirs have expressly consented to the sale deed executed in favour of the plaintiff. Thus, not only the surviving co-owner executed the deed but the legal representative of the one of the deceased co-owner has also accented to the transaction. This fact has been noticed by the Trial Court in paragraph No.19 of the judgment.
15. In SK. Golam Lalchand's case the dispute was inter say between co-owners. One co-owners transfer was
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR challenged by another co-owners there, the Apex Court held that the transferring from one co-owner cannot claim exclusive ownership to the prejudice of the other co- owners. However, in the present case, the defendants are strangers to the title. They are not co-owners or heirs, but claim through void GPA transaction Ex.D2.
16. Further in O.S. No.7591/2008, the Civil Court specifically held that the defendants' possession was only settled possession following from Ex.D3 and they could be dispossessed only through due process of law. The present suit is precisely that due process, filed by the plaintiff to recover possession based on her valid title. Hence, SK. Golam Lalchand's case is distinguishable and cannot aid the appellants. The defendants relied on Ex.D2 dated 29.07.2008 executed by their mother as GPA holder under Ex.D3 dated 16.12.1983. By that date, two of the principals, i.e., Shanmugam and Kadiravelu had died and Exs.P6 and P7 are the documents to that effect. GPA Authority ceases on death unless coupled with interest,
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR which Ex.D3 was not. The Apex Court in the case of M.S. Ananthamurthy stated supra has held at paragraph Nos.51, 52, 53, 54, 55, 56, 57 as under:
"51. Section 17(1)(b) prescribes that any document which purports or intends to create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property is compulsorily registerable. Whereas, Section 49 prescribes that the documents which are required to be registered under Section
17 will not affect any immovable property unless it has been registered.
52. The aforesaid has been emphatically laid down by this Court in Shyam Narayan Prasad v. Krishna Prasad & Ors., reported in (2018) 7 SCC
646. The relevant observations are reproduced herein below:--
"20. Section 17(1)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and deals with the
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR documents that are required to be registered under Section 17 of the Registration Act. Since, the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property, namely, RCC building, it requires registration under Section
17. Since the deed of exchange has not been registered, it cannot be taken into account to the extent of the transfer of an immovable property."
53. Even from the combined reading of the POA and the agreement to sell, the submission of the appellants fails as combined reading of the two documents would mean that by executing the POA along with agreement to sell, the holder had an interest in the immovable property. If interest had been transferred by way of a written document, it had to be compulsorily registered as per Section 17(1)(b) of the Registration Act. The law recognizes two modes of transfer by sale, first, through a registered instrument, and second, by delivery of property if its value is less than Rs. 100/-.
54. This principle was recently elaborated by the High Court of Karnataka in Channegowda and Anr. v. N.S. Vishwanath and Ors., reported in
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR 2023 SCC OnLine Kar 153. The relevant portion is reproduced as under:--
"14. An attempt is made on behalf of the plaintiffs to contend that the second plaintiff has sold the property as a General Power of Attorney Holder and not as a title holder. It is argued that the Power of attorney is not compulsorily registrable. The submission is noted with care. Suffice it to note that a deed of power of attorney is not one of the instruments specified under Section 17 of the Registration Act compulsorily registrable. However, if a power has been created empowering the attorney to sell the property i.e., if a document that gives a right to the attorney holder to sell the immovable property, then it would be a document creating an interest in immovable property, which would require compulsory registration. In the present case, the General Power of Attorney alleged to have been executed by defendants 1 to 3 in favor of the second plaintiff is coupled with interest i.e., power of alienation is conferred but it is not registered. The Apex Court in the SURAJ LAMP's case has held that the General Power of Attorney Sale, or Sale Agreements/Will do not convey title
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR and do not amount to transfer, nor can they be considered valid modes of transfer of immovable property. Therefore, it can be safely concluded that the declaration of facts/statement of facts (affidavit) and General Power of Attorney do not convey title. They are inadmissible in evidence."
55. The High Court rightly held that even though the GPA and the agreement to sell were contemporaneous documents executed by the original owner in favour of the holder, this alone cannot be a factor to reach the conclusion that she had an interest in the POA. Thus, even though the GPA and the agreement to sell were contemporaneous documents executed by the original owner in favour of the same beneficiary, this cannot be the sole factor to conclude that she had an interest in the subject-matter. Even if such an argument were to persuade this Court, the document must have been registered as per Section 17(1)(b) of the Registration Act. In the absence of such registration, it would not be open for the holder of the POA to content that she had a valid right, title and interest in the immovable property to execute the registered sale deed in favour of appellant no. 2.
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR
56. The practice of transferring an immovable property vide a GPA and agreement to sell has been discouraged by the following observations of this Court in Suraj Lamp (supra). The relevant observations are reproduced herein below:--
"24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of "GPA sales" or "SA/GPA/will transfers" do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of Section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/will transactions known as GPA sales."
iv. Effect of Suit for Injunction simpliciter
57. The appellants submitted that the answering respondent had not challenged the validity of the GPA and the agreement to sell dated 04.04.1986 executed in favour of the holder and registered sale deed dated 01.04.1998 executed in favour of appellant no.2. The appellants' submission does not hold good, as the absence of a separate suit for declaration or even a specific prayer to that effect does not alter the legal position of either party in the facts of this case. The legal standing of both parties remains unaffected, for want of a distinct challenge to the instruments in question."
17. In light of the settled proposition of law, since Ex.D2 in favour of the defendants is void, their possession cannot override the plaintiff's lawful ownership under Ex.P4. For the foregoing reasons, the point framed for consideration is answered and this Court pass the following:
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NC: 2025:KHC:38305 RFA No. 566 of 2022 HC-KAR ORDER i. The regular first appeal is hereby dismissed.
ii. The judgment and decree dated 21.01.2022 passed in O.S No.7157/2012 on the file of the X Additional City Civil and Sessions Judge, Bengaluru (CCH-26) stands confirmed.
Sd/-
_____________________ JUSTICE K.S. HEMALEKHA MBM List No.: 1 Sl No.: 21