Bangalore District Court
Smt. Sunandamma vs Sri B.N. Janardhana on 20 November, 2019
IN THE COURT OF THE LIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 20th day of November 2019
: PRESENT :
Sri B. B. Jakati, B.A., LL.M.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
O.S.No.245/2016
PLAINTIFFS: Smt. Sunandamma,
D/o Late Papaiah
W/o Nagareddy,
Aged about 57 years,
R/at No.229, 2nd Cross,
Singasandra Hosuru Main road,
Bengaluru - 560 068.
Rep. By her GPA Holder
Sri M. Manjun,
S/o Mallareddy,
Aged about 31 years,
R/at No.843, 3rd Cross,
Channakeshava Nagar,
Begur Hobli,
Bengaluru - 560 100.
(By Sri K.G. Sadashivaiah,
Advocate)
V/S.
DEFENDANTS: 1. Sri B.N. Janardhana,
S/o Narayanappa,
Aged about 57 years.
2 O.S.No.245/2016
2. Smt P. Vanajakshi,
W/o B.N. Janardhana,
Aged about 49 years.
Both are R/at No.286,
Bellandur Village,
Varhur Hobli,
Bengaluru East Taluk,
Bengaluru - 560 037.
(By Sri B.N., Advocate)
Date of institution of the : 07.01.2016
suit
Nature of the suit : Declaration & Possession
Date of commencement :
of recording of the 10.02.2017
evidence
Date on which the :
Judgment was 20.11.2019
pronounced.
: Year/s Month/s Day/s
Total duration
03 10 13
(B. B. JAKATI)
LIX ADDL. C.C. & SESSIONS JUDGE,
BENGALURU CITY.
JUDGMENT
The plaintiff has filed this suit for declaration of her ownership over the schedule property, for permanent injunction and for alternative relief of possession. 3 O.S.No.245/2016
2. The case of the plaintiff in brief is that, Papaiah, S/o Late Muniyappa was the owner and in possession of Sy.No.48, which was subsequently renumbered as Sy.No.48/1 measuring 2 acres 10 guntas situated in Singasandra Village, Begur Hobli, Bengaluru East Taluk. The land was re-granted under the Land Reforms Act. In the year 1991 he formed private layout in his land and he was intending to sell such sites. There was bar for sale of revenue sites. At that time the defendant No.1 approached Papaiah for the purpose of developing the land Papaiah executed power of attorney dated 24.02.1992 in favour of defendants. There was no agreement to sell land in favour of defendant No.1. Papaiah died on 05.03.1996 leaving plaintiff as his sole heir. Therefore, plaintiff inherited entire land sy.48/1 and she is the absolute owner. The schedule property is part of Sy.No. 48/1 and it is measuring 90 ft x 45 ft. It has been alleged that in second week of November, 2015 the plaintiff noticed 4 O.S.No.245/2016 that defendant No.1 based on the power of attorney executed by Papaiah executed sale deed in the name fo his wife / the defendant No.2 by selling the schedule property though registered sale deed dated 29.01.2003. The GPA dated 24.02.1992 lost its legal sanctity soon after the death of Papaiah on 05.03.1996 and therefore, defendant No.1 had no right to execute the sale deed in the name of defendant No.2 on 29.01.2003 and hence, sale deed is null and void. On these grounds the plaintiff prayed to declare her ownership and to issue order of permanent injunction and alternatively prayed to pass decree for possession.
3. The defendant No.1 filed written-statement. The defendant No.2 not filed written-statement. The defendant No.1 in his written-statement admitted the ownership of Papaiah over Sy.No. 48/1 and schedule property as part of such survey number. He has not denied the execution of GPA by Papaiah in his name and sale deed executed by him in favour of defendant 5 O.S.No.245/2016 No.2 on 29.01.2003. However, the defendant No.1 has denied other allegations made by the plaintiff. He has taken the defence that suit is filed by the P.A.Holder, who was minor at the time of alleged transaction and therefore, suit filed by P.A.Holder on behalf of the plaintiff is not maintainable under law. On these main contentions, the defendant No.1 prayed to dismiss the suit with costs.
4. On the rival pleadings of the parties, the following issues have been framed:
(1) Whether the plaintiff proves her ownership over the schedule property?
(2) Whether the plaintiff further proves her possession over the schedule property as on the date of the suit?
(3) Does she prove the alleged obstruction made by the defendants?
(4) Whether plaintiff is entitled for relief of declaration and injunction ?
(5) Whether plaintiff is entitled for relief of possession?6 O.S.No.245/2016
5. To prove the claim, the P.A.Holder of plaintiff examined himself as P.W.1 and examined another witness as PW.2 and got marked the documents at Ex.P.1 to P.6, in order to substantiate the claim of the plaintiff over the schedule property. PW.2 not submitted for Cross-examination and therefore, his evidence was struck down. To substantiate the defence, the first defendant examined himself as D.W.1 and got marked documents at Ex.D.1 to Ex.D.31.
6. The learned counsel for the plaintiff has argued that the defendants have not disputed the fact that plaintiff is the daughter of Papaiah, who was the owner of Sy.No. 48/1 and schedule property is part of such land. Even the defendants have not denied the power of attorney executed by Papaiah in favour of the defendant No.1 on 24.02.1992 and sale deed executed by defendant No.1 in favour of defendant No.2 on 29.01.2003 produced at Ex.P.6. The plaintiff has 7 O.S.No.245/2016 produced the death certificate of her father at Ex.P.5, which shows that Papaiah died on 05.03.1996 and soon after his death the Power of Attorney dated 24.02.1992 lost its legal validity and then also the defendant No.1 executed sale deed in the year 2003 in favour of his wife without any right. Therefore, the defendant No.1 or defendant No.2 not acquired any right, title and interest over the schedule property. The title remained with plaintiff and even the plaintiff has produced evidence to show her possession. Therefore, such evidence on record is sufficient to decree the suit of the plaintiff. In support this argument he placed reliance on the decisions reported in (1) 2012 (1) SCC 656 {Suraj Lamp and Industries Private Limited(2) through Director V/s. State of Haryana and Another} and (2) 2009 (7) SCC 363 {Suraj Lamp and Industries Private Limited through Director V/s. State of Haryana and Another} and prayed to decree the suit.
8 O.S.No.245/2016
7. The learned counsel for the defendants argued that the GPA was executed by Papaiah in the year 1992 and based on such GPA the defendant No.1 got entered his name in the records of the schedule property and Thereafter he has executed the sale deed in the name of defendant No.2. The revenue records are in the name of defendant No.2. Ex.P.5 / Death certificate is not of Papaiah who executed GPA in favour of the defendant No.1 as the name of his father is shown as Muni Nanjappa and the name of father of Papaiah is Muniyappa. Therefore, the plaintiff has not proved the fact of death of her father before execution of the sale deed dated 29.01.2003 and hence, the suit is not maintainable. He has further argued that there was a contract between Papaiah and defendant No.1 for sale of schedule property. Under such contract the defendant No.1 came in possession of schedule property by paying consideration and such contract is sustainable under law under Section 202 of Indian 9 O.S.No.245/2016 Contract Act. His next argument is that the power of attorney executed in the year 1992 and sale deed was executed in the year 2003 and suit was filed in the year 2016. From 1996 the plaintiff is having knowledge of power of attorney and also the sale deed and she kept quiet till 2016 and therefore, suit is barred by law of limitation. On these main grounds the counsel for the defendants prayed to dismiss the suit with costs. In support of his argument he placed reliance on the following decisions:
(1) Civil Appeal No.2869-2870 of 2010 dated 01.10.2019 passed by Hon'ble Supreme Court {Mohinder Kaur V/s. Sant Paul Singh} ; (2) (2005) 2 SCC 217 {Janki Vashdeo Bhojwani and Anr V/s.
Indusind Bank Ltd. And others} ; (3) ILR 2006 KAR 3129 {Bhimappa and others V/s. Allisab and others} ; (4) AIR 2004 KAR 156 {H.S. Indresh V/s. N. Ravi} ; (5) 2014 SCC ONLINE DELHI 3152 {Sh.
Bidhan Chand Biswas (since deceased) through Lrs. V/s. Sh. Prakash Chand 10 O.S.No.245/2016 Bansal and Ors.} ; (6) S.A. (MADRAS) No.309/13 {M. Karuppannan and Others V/s. Mariyamma and others} ; (7) 193(2012) DELHI LAW TIMES 168 {Hardip Kaur V/s. Kailash and Anr.} ; (8) AIR 2000 SC 3576 (1) {Udhav (dead) by Lrs and Another V/s. Pandarinath Kishanrao Tak and another} ; (9) AIR 2012 KAR 155 Ameeruddin V/s.
Hussainsab Imamsab Hakki} ; (10) AIR 1999 KAR 231 {K. Premananda and anr.
V/s. Syndicate Bank}; (11) 2010 (3) KCCR 2093 {H.D. Hanumanthappa V/s.
Mohammed Sab and Others} ; (12) ILR 1993 KAR 2306 {Mohammed @ Podiya V/s. Assistant Commissioner}.
8. On careful consideration of the materials on record and the decisions relied upon by both parties, I proceed to give the finding as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : The plaintiff is entitled for
11 O.S.No.245/2016
the relief of declaration
Issue No.5 : In the Affirmative
for the following:
REASONS
9. ISSUE NO.1 : - The suit is filed through GPA holder and even the evidence has been let in through GPA holder. The defendant No.1 in the written- statement seriously disputed the filing of the suit through GPA holder and raised the contention of admissibility of evidence of PW.1. Therefore, whether the suit filed through GPA holder and evidence given by him is sustainable under law or not is to be decided before proceeding to consider the suit on merit.
10. The P.A.Holder has produced the GPA at Ex.P.2. This deed has been executed by the plaintiff in favour of P.A.Holder on 08.12.2015. Based on this GPA the PW.1 has filed the suit and even he has deposed on behalf of the plaintiff. The suit is one for declaration of ownership over the schedule property, permanent 12 O.S.No.245/2016 injunction and alternative relief of possession. The plaintiff has authorized the PW.1 to institute the suit and also to depose in the suit. Such authorization is not disputed by the plaintiff.
11. The Hon'ble Supreme Court in the decision reported in (2005) 2 SCC 217 has held that P.A.Holder cannot depose for Principal in respect of matters of which only Principal can have personal knowledge and in respect of which Principal is liable to be cross examined. The said principle has been reiterated in the decision of the Hon'ble Supreme Court in Civil Appeal No.2869-2870 of 2010. The Hon'ble High Court of Karnataka in ILR 2006 Karnataka 3129 in Para No.15 held as under:
PARA 15: Therefore, the contention that the evidence on record cannot be taken into consideration to declare the title of the plaintiff has no substance. The suit is one for declaration of title and for possession. In a suit for declaration of title, the plaintiff has to establish his title. Title cannot be established 13 O.S.No.245/2016 by his personal knowledge. It has to be established by producing documents under which he is claiming title, most of the time under a registered document. In so far as documents are concerned Section 61 of the Evidence Act mandates that the contents of documents may be proved either by primary or secondary evidence. Primary evidence means the documentary evidence produced for inspection of the Court. Therefore, when a particular fact is to be established by production of documentary evidence there is no scope for leading oral evidence and there is no scope for personal knowledge. What is to be produced is the primary evidence, i.e., document itself. The said evidence can be adduced by the party or by his Power of Attorney Holder. Production of the document, marking of the document is a physical act which does not need any personal knowledge. Even proof of the document is by examining the persons who are well versed with the document or by examining the attesting witnesses or the executant of the document. Again the personal knowledge of 14 O.S.No.245/2016 the plaintiff has no role to play. In those circumstances it is open to the plaintiff to examine the Power of Attorney Holder, produce the documents through the Power of Attorney Holder, mark the same and examine witnesses to prove the said document if it is denied. Therefore, the contention that the evidence of a Power of Attorney Holder cannot prove the case of the plaintiff in all cases is not correct and that is not the law laid down by the Supreme Court in the aforesaid judgment. In the instant case, the registered sale deed is produced and the same is proved by examining the executant of the said document, and it is on the basis of the said evidence the suit is decreed, which cannot be found fault with.
12. In AIR 2004 KAR 156, the Hon'ble High Court of Karnataka has held that when there was no hurdle for the party to appear before the court, permission cannot be granted to the party to appear through P.A.Holder.
13. The principles laid down by the Hon'ble Supreme Court in the matter of Janki Vashdeo Bhojwani 15 O.S.No.245/2016 V/s. Indusind Bank Ltd., referred above and also the principles of Hon'ble High Court in Bhimappa and Allisab case are binding on the court. These principles clearly show that there is no bar under the law to institute the suit through P.A.Holder. Further, there is no bar under law to depose by the P.A.Holder on behalf of the principal in respect of title of immovable property based on the documents. The personal examination of a party is necessary in respect of matters which only Principal can have personal knowledge and in respect of which Principal is liable to be cross examined. Therefore, in the present case whether there is any personal knowledge to the plaintiff to depose to establish her claim is to be seen.
14. It is the claim of the plaintiff that her father was the owner of the schedule property and he executed power of attorney in favour of the defendant No.1 and the defendant No.1 even after the death of father of the plaintiff exercised the power given to him 16 O.S.No.245/2016 under GPA and thereby executed the sale deed in the name of defendant No.2, which is illegal. Based on these principal grounds the plaintiff has claimed her ownership over the immovable property, sought the relief of permanent injunction and even sought alternative relief of possession. In order to establish the title, how the father of the plaintiff acquired the schedule property and in which capacity the plaintiff acquired her right in the schedule property after the death of her father is to be established. The defendants have admitted that father of the plaintiff was the owner and in possession of the schedule property. Even they have admitted the GPA executed by father of the plaintiff in favour of defendant No.1 in respect of schedule property and admitted that plaintiff is the daughter of Papaiah who executed the GPA. Therefore, the plaintiff has to prove her possession over the property based on the documents. There is no personal knowledge involved in the suit, which is known 17 O.S.No.245/2016 to the plaintiff alone. Even if plaintiff depose in respect of the claim, there will not be any personal knowledge and her deposition would be based on the records which are produced before the court. Therefore, I hold that there is no necessity of the examination of the plaintiff herself by entering into witness box to prove the claim. She can substantiate her claim based on the records through P.A.Holder. In this view of the matter based on the principles referred above of the Hon'ble Supreme Court and Hon'ble High Court of Karnataka, I hold that PW.1 who has filed the suit and who has given his evidence on behalf of the plaintiff is sustainable under law. Accordingly, the objection raised by the defendants for institution of the suit through P.A.Holder and in respect of evidence of PW.1 is hereby rejected.
15. Now the title of the schedule property claimed by the plaintiff is to be scrutinized. The plaintiff has categorically stated that Papaiah, S/o Late Muniyappa was the owner and in possession of land 18 O.S.No.245/2016 Sy.No. 48/1 measuring 2 acres 10 guntas and schedule property is part of such survey number. This contention of the plaintiff has been admitted by the defendants in the pleadings itself. So, the ownership of Papaiah and his possession over the entire land Sy.No. 48/1 including the schedule property as on 24.02.1992 is not in dispute.
16. The plaintiff claims that Papaiah executed GPA in the name of defendant No.1 on 24.02.1992 authorizing the defendant No.1 to sell, mortgage etc., of the schedule property. But such GPA terminated after the death of Papaiah on 22.02.1996. It has been claimed that the defendant No.1 had no right to exercise power given under GPA after the death of Papaiah and therefore, sale deed executed on 29.01.2003 in favour of defendant No.2 is illegal. The defendants admitted the GPA dated 24.02.1992 executed by Papaiah and even admitten the execution of sale deed dated 29.01.2003 by defendant No.1 in 19 O.S.No.245/2016 favour of defendant No.2. Therefore, the entire claim of the defendants is based on the GPA dated 24.02.1992. In case the defendants establish the right of the defendant No.1 under the GPA, who executed the sale deed in favour of defendant No.2 on 29.01.2003, the suit of the plaintiff will fail, otherwise the plaintiff will succeed in getting the title over the schedule property based on succession after the death of Papaiah. With these observations, the title of the plaintiff is to be ascertained.
17. It is to be noted that the defendant No.1 alone filed written-statement and there is no written- statement by the defendant No.2. Even in the written- statement of defendant No.1 there is no specific assertion that Papaiah executed power of attorney on 24.02.1992, such power of attorney not terminated either during the life time of Papaiah or after his death. Even there is no pleading that the GPA executed by Papaiah was coupled with interest and for consideration 20 O.S.No.245/2016 and such power of attorney continued even after the death of Papaiah. For that matter even there is no oral evidence with regard to these material aspects in the case. So, in the absence of these material pleadings and the evidence from the mouth of defendants, whether the defendants succeed in proving that even after the death of Papaiah, the defendant No.1 had right to execute the sale deed in the name of defendant No.2 is to be seen.
18. The defendants have produced GPA executed by Papaiah in favour of defendant No.1 at Ex.D.30 dated 24.02.1992. The execution of this GPA by Papaiah is not disputed by the plaintiff. Therefore, there is no need for the defendants to prove Ex.D.30 under Section 67 of Evidence Act. Admission of plaintiff is sufficient for the proof of Ex.D.30. In Ex.D.30 it has been shown that Papaiah authorized the defendant No.1 to look after the schedule property, to sell, to mortgage, to gift or to convey the schedule property in 21 O.S.No.245/2016 any manner. Even the contents of this GPA is not disputed by the plaintiff. Therefore, from Ex.D.30 it can be safely held that Papaiah authorized the defendant No.1 to deal with schedule property in any manner including the sale.
19. Ex.D.31 is the affidavit dated 24.02.1992 executed by Papaiah in favour of the defendant No.1. In this affidavit it has been shown that Papaiah sold the schedule property in favour of the defendant No.1 for consideration amount of Rs.1,20,000/- and entire consideration amount is received by Papaiah. There is recital in Ex.D.31 that Papaiah agreed to execute the sale deed in favour of defendant No.1 on demand Ex.D.31 is styled as affidavit and the recitals made therein show that it is agreement of sale of immovable property. From combined reading of Ex.D.30 and D.31, it appears that Papaiah not only given authority to the defendant No.1 to alienate the schedule property but also agreed to sell the schedule property for 22 O.S.No.245/2016 consideration amount of Rs.1,20,000/- by receiving entire consideration. The plaintiff has denied the contents of Ex.D.31. However, she has not denied the signature of her father in Ex.D.31. Therefore, Ex.D.31 and Ex.D.30 if compared, it appears that both documents were executed by Papaiah on the same day.
20. Ex.D.17 is the sale deed dated 29.01.2003 executed by the defendant No.1 in favour of defendant No.2. There is no dispute between defendant No.1 and 2 in respect of Ex.D.17. The plaintiff has challenged Ex.D.17 on the ground that defendant No.1 had no authority to execute the sale deed. In case the plaintiff fails to prove such contention, then the sale deed at Ex.D.17 holds good under law.
21. It is surprising to note that defendants in the written-statement of defendant No.1 not made any assertion about Ex.D.30, D.31 and Ex.D.17. Even there is no evidence in the examination-in-chief of DW.1 in respect of transactions shown in these three important 23 O.S.No.245/2016 documents. Therefore, it has to be held that without any foundation in the pleadings, the defendants adduced documentary evidence in respect of GPA, affidavit and the sale deed produced at Ex.D.30, D.31 and D.17. It is settled principle of law that without pleading, whatever amount of evidence is not sustainable under law. Therefore, in the absence of pleadings in the written-statement, the evidence in the form of Ex.D.30, D.31 and D.17 is not admissible in law. This is the basic mistake committed by the defendants before tending these three documents in evidence and therefore, these three documents which are vital documents have not shown in the pleadings and therefore, no evidentiary value can be attached to these documents.
22. Coming to the contention of the plaintiff that defendant No.1 lost his right under Ex.D.30 after the death of Papaiah, the plaintiff has produced Ex.P.5, which is the Death Certificate of Papaiah. The 24 O.S.No.245/2016 certificate indicates that Papaiah, S/o Muni Nanjappa died on 22.02.1996. The PW.1 has deposed that Ex.P.5 relates to Papaiah, who is the father of plaintiff and who is executant of Ex.D.30. During the Cross- examination of PW.1, the defendants have not denied the date shown in Ex.P.5 including the fact that such certificate is of Papaiah, the executant under Ex.D.30. Even in the examination-in-chief of DW.1 the defendants have not disputed Ex.P.5 including the date shown therein. On the other hand, the D.W.1 pleaded his ignorance about date of death of Papaiah. However, during the course of argument the defendants have contended that Ex.P.5 is the death certificate of Papaiah, S/o Muni Nanjappa and whereas Ex.D.30 has been executed by Papaiah, S/o Muniyappa and there is difference in the name of father and hence, it is not the death certificate of executant of Ex.D.30. This contention raised in the argument is not sustainable as there is no oral or documentary evidence produced by 25 O.S.No.245/2016 the defendants. Not only that even the defendants have not denied the certificate at Ex.P.5 and not taken any contention in the Cross-examination of PW.1, that certificate at Ex.P.5 is not relating to the father of the plaintiff. It appears from Ex.P.5 that while entering the name of Papaiah, the name of his father has been shown as Muni Nanjappa instead of Muniyappa. There is clerical mistake in entering the name of father of Papaiah. Therefore, looking to the evidence on record, I hold that Ex.P.5 is the death certificate of Papaiah who executed Ex.D.30 and who is the father of the plaintiff. Such certificate is sufficient to hold that Papaiah died on 22.02.1996.
23. When Papaiah died on 22.02.1996, whether the defendant No.1 had any right to alienate the schedule property based on Ex.D.30 is the question for consideration. Section 201 of Indian Contract Act, 1872 provides that "an agency is terminated by the principal revoking his authority, or by the agent renouncing the 26 O.S.No.245/2016 business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors. "However, Section 201 of Indian Contract Act has exception under Section 202 of the said Act, which reads as under:
202. Termination of agency, where agent has an interest in subject-matter.--Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. --Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest." Illustrations
(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death. (a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A 27 O.S.No.245/2016 cannot revoke this authority, nor can it be terminated by his insanity or death."
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death. (b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."
24. The Hon'ble Delhi High Court in the decision reported in 2014 SCC On Line Delhi 3154 in Para No.4 held as under:
"The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney."28 O.S.No.245/2016
25. The Hon'ble Madras High Court in the matter of M. Karuppannan and otehrs V/s. Mariyammal and others in S.A. (md) No.309/2013 held that power of attorney executed for consideration would remain valid even after the death of executant. The Hon'ble Delhi High Court in another judgment reported in RFA No.648/2006 in Para No.24 (ii), (iii), (viii), (x), (xi) and
(xii) held as under:
24(ii) The agreement to sell of itself may not create any interest in the property under Section 54 of the T.P.Act, 1882 but the agreement along with the payment of entire sale consideration, handing over possession, execution of receipt, affidavit, will, indemnity bond and irrevocable GPA create "an interest in the property" within the meaning of Section 202 of Contract Act.
(iii) The words "an interest in property which forms the subject matter of the 29 O.S.No.245/2016 agency" in Section 202 of the Contract Act, 1972 are of wider amplityde than the words "an interest in or charge of such property" in Section 54 of the TP.Act, 1882. Where the seller has received the sale consideration in pursuance of the agreement to sell and has delivered the possession to the purchaser, the purchaser would have interest in the property within the meaning of Section 202 of Contract Act.30 O.S.No.245/2016
(viii) The object of giving validity to a power of attorney given for consideration even after death of the executant is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
(x) All the conditions or irrevocabiilty are satisfied in the present case. The authority to the agent was given for valuable consideration which proceeded from Mohinder Kaur. It was given to Surinder Jit Singh, son and nominee of Mohinder Kaur to ensure and secure the performance of the contract by the plaintiff in favour of Mohinder Kaur.31 O.S.No.245/2016
(xi) The GPA dated 5th June, 1989 is irrevocable in view of Section 202 of the Contract Act. The plaintiff therefore, had no right to terminate the said GPA. The GPA is legal, valid and subsisting. The revocation of the GPA by the plaintiff is therefore, of no consequence.
(xii) The defendants are protected by Section 53A of the T.P.Act, 1882 and, therefore, the plaintiff is not entitled to the recovery of possession of the suit property.
26. From the principles laid down in the decisions referred above, it is very clear that normally the agency created under GPA terminates on the death of executant. Further, such agency would not terminate even after death of executant if agent has an interest in the subject matter. In the present case under Ex.D.30 no interest has been created in favour of agent. Further, Ex.D.30 is not executed for consideration. In 32 O.S.No.245/2016 other words the executant in Ex.D.30 not created any interest in favour of agent in schedule property. Therefore, under Ex.D.30 power was conferred on the defendant No.1 / agent to alienate the property and this deed was not executed for consideration or coupled with interest. Therefore, Section 202 of Indian Contract Act cannot be pressed into service including the decisions referred above if Ex.D.30 is alone considered based on the recitals made therein.
27. If Ex.D.31 / affidavit is read along with Ex.D.30, then it appears that principal executed Ex.D.30 for consideration in favour of agent and Ex.D.30 is coupled with interest. However, there is no indication of receipt for consideration or interest created in favour of agent in Ex.D.30. Even there is no recital in Ex.D.30 that this deed is to be read along with affidavit/Ex.D.31. However, there is recital in Ex.D.31 about execution of GPA produced at Ex.D.30. Therefore, Ex.D.30 recitals are seen, it has to be read in isolation of Ex.D.31. If 33 O.S.No.245/2016 Ex.D.31 is seen, then it has to be read along with GPA at Ex.D.30. The combined reading of Ex.D.30 and Ex.D.31 show that GPA was executed for consideration coupled with interest.
28. What is the effect of GPA sale or sale by agreement is dealt with by the Hon'ble Supreme Court in the decision reported in (2012) 1 SCC 656 wherein the Hon'ble Supreme Court in Para No.24, 26 and 27 held as under:
24. We therefore, reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed od 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 or immovable property. The courts will not treat such transactions as completed or concluded 34 O.S.No.245/2016 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 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 assignment of lease. It is time that an end is put to the precious practice of SA/GPA/will transactions known as GPA sales.
26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/Will transactions are not "transfers" or "sales" and that such 35 O.S.No.245/2016 transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title.
"The said SA/GPA/Will transactions" may also be used to obtain specific performance or to defend possession under Section 53-A of TP.Act. If they are entered before this day, they may be relied upon to apply for regularisation of allotments/leases by development authorities. We make it clear that if the documents relating to SA/GPA/Will transactions have been accepted/acted upon by DDA or other developmental authorities or by the municipal or Revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.36 O.S.No.245/2016
27. We make it clear that our observations are not intended to in any way affect the vaidity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a power of attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective 37 O.S.No.245/2016 purchasers. In several States, the execution of such development agreements and power of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding "SA/GPA/Will transactions" are not intended to apply to such bonafide/genuine transactions.
29. Ex.D.30 and 31 were executed on 24.02.1992 and whereas the Hon'ble Supreme Court has decided the above said case on 11.10.2011. Therefore, it has to be held that Ex.D.30 and 31 are not the deeds of complete transfer or conveyance of the property. Both documents can continue to be treated as existing agreement of sale and the beneficiary under the deeds not prevented from getting registered deeds of conveyance to complete their title. But the defendant No.1 after the decision of the Hon'ble Supreme Court referred above not taken any steps to get the sale deed executed in his favour as per the recitaps in Ex.D.31. 38 O.S.No.245/2016 Therefore, there is no complete transfer or conveyance of the title over the schedule property by Papaiah in favour of defendant No.1. Therefore, Ex.D.30 and 31 are not legal documents for transfer of title of the schedule property in favour of defendant No.1.
30. For these reasons I hold that basically there is no pleading in the form of defence in the written- statement that Papaiah executed Ex.D.30 and 31 for consideration coupled with interest. Directly the primary evidence in the form of Ex.D.30 and 31 have been tendered in evidence. Even there is no oral evidence for proof of contents of Ex.D.30 and 31. Further as per the principles of Suraj Lamp case, the defendant No.1 not taken any steps in getting registered deed of conveyance from Papaiah to complete his title under Ex.D.30 and 31. Therefore, the defendants failed to establish that their case falls under Section 202 of Indian Contract Act. On the other hand, the plaintiff has established that her father died 39 O.S.No.245/2016 on 22.02.1996. Becaue of his death, the agency created under Ex.D.30 terminated on 22.02.1996 itself. Thereafter the defendant No.1 without any authority executed the sale deed produced at Ex.D.17 in favour of his wife / defendant No.2 on 29.01.2003. On the date of execution of the sale deed, the defendant No.1 had no title over the property in dispute and hence, the sale deed at Ex.D.17 is null, void and not binding on the plaintiff. In view of these facts and circumstances of the case after the death of Papaiah on 22.02.1996, the property in dispute devolved upon the plaintiff as she being the Class-I heir of Papaiah and hence, she acquired absolute title over the schedule property. Therefore, I hold that the plaintiff has established her ownership over the schedule property by answering this issue in the Affirmative.
31. ISSUE Nos.2 & 3 :- The plaintiff has claimed that she is in possession of the schedule property as on the date of the suit and earlier her father was in 40 O.S.No.245/2016 possession. This allegation of the plaintiff has been specifically denied by the defendant No.1 in the written- statement. Even he has denied the alleged obstruction to the possession of the plaintiff. Therefore, the plaintiff is required to establish her possession over the schedule property as on the date of the suit.
32. Excluding the oral evidence of PW.1, who is the P.A.Holder of the plaintiff, there is no other evidence on record to support the statement of PW.1 for establishing the possession. The plaintiff has produced record of right of Sy.No. 48/1 in the year 2015-16 at Ex.P.4 which shows the name of plaintiff as possessor of entire land. The RTC has got presumption unless it is rebutted. Apart from Ex.P.4 there is no other documentary evidence for the proof of possession of the plaintiff. Whether the defendants rebutted the presumption available to RTC in respect of possession is to be looked into.
41 O.S.No.245/2016
33. The D.W.1 in his oral evidence has denied the possession over the schedule property of the plaintiff. To substantiate such contention the D.W.1 has produced assessment extract at Ex.D.1 for the year 1995-96 issued by City Municipal Council, Bommanahalli. In this regard it has been shown that there is a house and vacant site measuring 90 ft. x 45 ft. in property No.10 of Singasandra Village and it is standing in the name of defendant No.1. In this extract the date of issuance of the extract has not been shown. However, there is a seal and signature of Revenue Officer of CMC, Bommanahalli and therefore, it has to be presumed to be true unless it is rebutted. There is no rebuttal evidence adduced by the plaintiff to disprove Ex.D.1.
34. Ex.D2 is the endorsement dated 13.05.2003 issued by CMC, Bommanahalli, which shows that based on Ex.D.17/ sale deed the name of defendant No.2 has been entered in the records of schedule property and accordingly, assessment extract has been prepared and 42 O.S.No.245/2016 issued in the name of defendant No.1. Such assessment extract is at Ex.D.3 for the year 2009-10. Ex.D. 4 is the khatha certificate standing in the name of defendant No.2. The defendants have produced tax paid receipts at Ex.D. 5 to Ex.D. 11 issued by BBMP. Both parties have admitted that schedule property is not within the limits of BBMP and BBMP is collecting the tax. The tax paid receipts indicate that defendant No.2 is paying the tax of the schedule property.
35. Ex.D. 18 is the receipt issued by CMC, Bommanahalli dated 28.02.2003 in the name of defendant No.2 which show that the defendant No.2 paid some money to the CMC. In Ex.D. 19 to Ex.D. 22, there are receipts issued by BBMP in the name of defendant No.2 in the year 202. The amount in these receipts is received by BBMP towards tax of property No.2216/10, which is the subject matter of the suit. Ex.D. 23 is another receipt dated 06.04.2009 issued CMC, Bommanahalli which shows that defendant No.2 43 O.S.No.245/2016 paid the tax of the property in dispute. There are other receipts issued by BBMP at Ex.D. 24 to Ex.D. 26, which also show the payment of tax.
36. The D.W.1 has stated that he is in possession of the schedule property based on Ex.D.30 and D.31. He has also stated that he has constructed a shed in the schedule property. Such fact has been reiterated even in the Cross-examination. The assessment extract, khatha certificate including the tax paid receipts referred above support the statement of D.W.1 about possession. The defendants by producing contrary records rebutted the presumption available to RTC at Ex.P.4. The plaintiff not examined any witness in support of his statement about possession. There are no records in the form of tax receipts etc., in support of statement of PW.1. Therefore, by evaluating the oral and documentary evidence produced by both parties, I hold that plaintiff is not in possession of the schedule property. The records show that defendants are in 44 O.S.No.245/2016 possession. When the plaintiff was not in possession of property there was no question of obstruction as pleaded. Thus, I hold that plaintiff has failed to establish her possession over the schedule property as on the date of the suit. Accordingly, these two issues are answered in the Negative.
37. ISSUE Nos.4 & 5 :- The plaintiff has proved her title / ownership over the schedule property and therefore, she is entitled for the relief of declaration of her ownership as sought in the suit, if her suit is within limitation. The plaintiff has failed to establish that she was in possession of the schedule property as on the date of the suit. Therefore, the plaintiff is not entitled for the relief of permanent injunction against the defendants. The plaintiff has sought the relief of possession from the defendants based on title. When the plaintiff has established her title over the schedule property and if her claim for possession is within limitation, then her suit for possession is to be decreed. 45 O.S.No.245/2016
38. The learned counsel for the defendants during the argument has vehemently submitted that suit is barred by law of limitation and therefore, plaintiff is not entitled for the relief of declaration and also possession. In AIR 2000 SC 3576 (1) the Hon'ble Supreme Court has held that when the sale deed is challenged after 17 years, the suit is time-barred and therefore, no relief could be granted. In AIR 2012 KAR 155, the Hon'ble High Court of Karnataka has held that the limitation of three years prescribed under Article 58 of Limitation Act, 1963 commences when the cause of action arose to the plaintiff to establish his right. In AIR 1999 KAR 231, the Hon'ble High Court of Karnataka has held that Section 3 of Limitation Act imposes the duty on the court to dismiss the suits which are barred by limitation. It has been further held that even if plea of limitation is not raised and the suit appears prima facie barred by limitation, then it should be dismissed. In another judgment reported in 2010(3) KCCR 2093, the Hon'ble 46 O.S.No.245/2016 High Court of Karnataka has held that Section 3(1) lf Limitation Act casts a duty on the court to see whether the claim made in a suit is in time.
39. In the present case the defendants have not taken the defence that suit is barred by law of limitation. However, such plea has been taken during the course of argument. There is no issue relating to limitation. Now the court comes to conclusion that the plaintiff has established her ownership and she is entitled for possession. Even in order to grant the relief of declaration and possession, by virtue of Section 3 of Limitation Act, the court is required to decide whether the claim is in time. Therefore, by relying on the decisions referred above, I hold that even though there is no issue relating to limitation, the court is required to decide whether relief of declaration and possession claimed by plaintiff is in time.
40. Article 58 of Limitation Act, 1963 provides period of three years to obtain decree for declaration 47 O.S.No.245/2016 and such limitation begins when the right to sue first accrues to the plaintiff. Article 65 of Limitation Act provides period of 12 years to file a suit for possession of immovable property and such period commences when the possession of the defendant becomes adverse to the plaintiff. So, the defendants are required to establish that to file a suit for declaration of ownership right was accrued to the plaintiff before three years prior to filing of the suit. Further, they have to establish that their possession over the schedule property was adverse to plaintiff 12 years prior to institution of the suit.
41. The plaintiff has pleaded that she came to know that the sale deed executed by defendant No.1 in favour of defendant No.2 in second week of November 2015 and with such pleading the suit was filed on 07.01.2016. Even in the Cross-examination this fact has been reiterated by PW.1. The defendants in the Cross-examination of PW.1 not suggested that from the 48 O.S.No.245/2016 date of sale deed in Ex.D.17 i.e. from 29.01.2003, the plaintiff was knowing the execution of the sale deed. Even there is no suggestion to PW.1 that the possession of the defendants was adverse to the plaintiff 12 years prior to institution of the suit. Even there is no such evidence in he examination-in-chief of D.W.1. Therefore, the evidence shows that the plaintiff first time came to know the sale deed at Ex.D. 17 in November 2015 and immediately she has filed the suit for declaration, injunction and possession.
42. The entries in Municipal records themselves would not give indication to the plaintiff that the possession of the defendants over the schedule property has become adverse. Positive action of the defendants is required to show that their possession was adverse to the plaintiff. There is no such positive action of the defendants. Mere possession of property exceeding 12 years would not bar the owner to seek possession of the property unless it has been show that 49 O.S.No.245/2016 possession of the defendant has become adverse. In the present case there is no evidence to the effect that possession of the defendant has become adverse to the plaintiff. Even there is no evidence to show that plaintiff had knowledge of the sale deed prior to November 2015. Therefore, right to sue for declaration accrues to the plaintiff in November 2015 and the suit was filed in the year 2016 and hence, the suit for declaration is in time. Even the plaintiff has filed the suit for possession before 12 years prescribed under Article 65 of Limitation Act.
43. The defendants in the written-statement have shown that the plaintiff executed sale deed No.8169/2001-02 in favour of K.N. Babu Reddy and Papaiah executed sale deed dated 18.05.1994 in favour of M. Ramesh Kumar and M. Raghu Ramareddy. Even if such pleading is accepted as it is, such execution of the sale deed in respect of other part of land Sy.No. 48/1 will not extinguish the right of the plaintiff in the 50 O.S.No.245/2016 schedule property. Such alienation is not sufficient to hold that plaintiff had knowledge of sale deed at Ex.D. 17 prior to November 2015. Considering such pleading also I hold that the suit of the plaintiff is not barred by law of limitation. Thus, the plaintiff is entitled for relief of declaration and also possession. Accordingly, I answer these issues and proceed to pass the following:
ORDER The suit of the plaintiff is decreed with costs partly.
The plaintiff is declared as
owner of the schedule
property.
The defendants are hereby
directed to handover the
vacant possession of the
schedule property to the
plaintiff within three months
from today.
The relief of permanent
injunction is hereby rejected.
Draw decree accordingly.
51 O.S.No.245/2016
[Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me, in the Open Court on this the 20th day of November, 2019].
(B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.
ANNEXURE
1. List of witnesses examined on behalf of the plaintiff:
P.W.1 M. Manju
PW.2 Umesh T.
2. List of witnesses examined on behalf of the Defendant:
E.W.1 B.N. Janardhana Reddy
3. List of documents marked on behalf of the Plaintiff:
Ex.P.1 Genealogy
Ex.P.2 GPA
Ex.P.3 Copy of Order in LRF
No.2947/1975-76
Ex.P.4 Record of right and Pahani
Ex.P.5 Death certificate of Papaiah
Ex.P.6 Certified copy of sale deed
dated 29.01.2003
4.List of documents marked on behalf of the defendant:52 O.S.No.245/2016
Ex.D.1 Extract of property
Ex.D.2 Endorsement given by BBMP
Ex.D.3 Tax assessment extract
Ex.D.4 Khatha certificate
Ex.D.5 to 11 7 tax paid receipts
Ex.D.12 Certified copy of sale deed
dated 12.11.2001
Ex.D.13 & 14 Certified copy of sale deeds
dated 18.10.1994 and
30.10.1991
Ex.D.15 & 16 Certified copy of order sheet
and complaint in PCR
No.3206/2016
Ex.D.17 Original sale deed dated
29.01.2003
Ex.D.18 Receipt dated 28.02.2003
Ex.D.19 to 26 8-tax paid receipts
Ex.D.27 Copy of self assessment
return
Ex.D.28 Death certificate of
Ramachandra Reddy
Ex.D.29 Phographs with CD
Ex.D.30 GPA
EX.D.30(a) to Signatures of Papaiah,
(c) Nagareddy and Ramachandra Ex.D.31 Affidavit Ex.D.31(a) Signature of Papaiah (B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.53 O.S.No.245/2016
20.11.2019:
Judgment pronounced in the Open Court (Vide separate detailed judgment) ORDER The suit of the plaintiff is decreed with costs partly.54 O.S.No.245/2016
The plaintiff is declared as
owner of the schedule property.
The defendants are hereby
directed to handover the vacant
possession of the schedule
property to the plaintiff within three months from today.
The relief of permanent
injunction is hereby rejected.
Draw decree accordingly.
(B. B. JAKATI)
LIX ADDL. C.C. & SESSIONS JUDGE,
BENGALURU CITY.
55 O.S.No.245/2016