Karnataka High Court
Sri T Ramaiah vs Sri B K Ramanna on 6 October, 2023
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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NC: 2023:KHC:36664-DB
RFA No. 162 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 162 OF 2014 (DEC)
BETWEEN:
1. SRI T RAMAIAH
S/O THIMMARAYAPPA
AGED ABOUT 58 YEARS
R/AT NO.17, 1ST MAIN ROAD
MATHRU LAYOUT
NEW TOWN, YELAHANKA
BANGALORE-560 064
2. SMT.PREMASUDHA
W/O T.RAMAIAH, AGED ABOUT 46 YEARS
BOTH ARE R/AT NO.17
1ST MAIN ROAD, MATHRU LAYOUT
NEW TOWN, YELAHANKA
BANGALORE-560 064 ...APPELLANTS
(BY SRI. P. M. NARAYANA SWAMY, ADV.)
Digitally signed by
MALA K N AND:
Location: High
1. SRI B K RAMANNA
Court of Karnataka
SINCE DECEASED BY HIS LRS
1(a) SRI R.RAGHAVENDRA
S/O LATE B.K.RAMANNA
AGED ABOUT 40 YEARS
1(b) SRI.R.SHABARI
S/O LATE B.K.RAMANNA
AGED ABOUT 35 YEARS
1(c) SRI.R.MARUTHI,
S/O LATE B.K.RAMANNA,
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NC: 2023:KHC:36664-DB
RFA No. 162 of 2014
AGED ABOUT 32 YEARS
ALL ARE R/AT NO.1818, 'MADHURA'
'C' BLOCK, SAHAKARANAGAR
BANGALORE-560 092 ...RESPONDENTS
(BY SRI. A KESHAVA BHAT, ADV. FOR R1(a);
R1(b) & R1(c) - SERVICE HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 20.1.2012
PASSED IN O.S.NO.17837/2005 ON THE FILE OF XXVIII
ADDITIONAL CITY CIVIL JUDGE, MAYOHALL, BANGALORE,
DECREEING THE SUIT FILED FOR DECLARATION AND
PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
T.G.SHIVASHANKARE GOWDA J., DELIVERED THE
FOLLOWING:
JUDGMENT
In this appeal, the defendants have challenged the judgment and decree dated 20.01.2012 passed in O.S.No.17837/2005 on the file of the XXVIII Addl. City Civil Judge at Mayohall Unit, Bangalore (for brevity 'the Trial Court') decreeing plaintiff's suit for declaration and permanent injunction.
2. For the sake of convenience, parties shall be referred as per their status before the Trial Court. -3-
NC: 2023:KHC:36664-DB RFA No. 162 of 2014
3. Brief facts of the case are, first defendant is the owner of suit properties i.e. 1 acre 9 guntas of agricultural land in Sy.No.12/3 and 15 guntas of land in Sy.No.12/4 (item No.1), Sy.No.12/6 measuring 30 guntas (item No.2) and Sy.No.41 measuring 1 acre 6 guntas (item No.3) of the plaint schedule situated at Chikkabetahalli Village, Yelahanka Hobli, Bangalore North Taluk. He along with six others have executed a registered General Power of Attorney on 14.11.1996 in favour of the plaintiff authorizing him to develop the suit property by forming individual sites and to execute agreements to sell in favour of the purchasers, who are the members of Akhila Havyaka Mahasabha. They have also executed another Power of Attorney on 25.10.2001 authorising the plaintiff and one B.M.Venugopal to sell the sites formed in the said layout. Accordingly, plaintiff and B.M.Venugopal sold the sites formed in the said layout under the General Power of Attorney. First Defendant entered into an agreement of sale on -4- NC: 2023:KHC:36664-DB RFA No. 162 of 2014 25.10.1997 and delivered the original title deeds to the plaintiff.
4. One C.Sathyanarayana has filed a suit in O.S.No.3594/1999 in which first defendant was also a party. In that suit an affidavit was filed mentioning the sale transaction by the plaintiff, execution of document and receipt of Rs.50 lakhs from the plaintiff. Though the first Defendant had no right over the property illegally executed a Gift Deed on 11.08.2003 in favour of his wife, the second defendant without delivering the possession. By virtue of the Gift Deed, the second defendant did not acquire any title and possession over the suit schedule property. They have issued a public notice in the newspaper. The second defendant attempted to alienate the suit properties to third parties forcing the plaintiff to file the instant suit.
5. The defendants appeared in the suit through their Advocate, but did not file any written -5- NC: 2023:KHC:36664-DB RFA No. 162 of 2014 statement. During the trial, plaintiff got examined himself as PW-1 and marked 93 documents as Exs.P1 to P93. Based on plaintiff's evidence on record, the Trial Court decreed the suit. Aggrieved by the same, the defendants have filed the instant appeal as against the legal representatives of the plaintiff on various grounds.
6. Heard the arguments of Sri.P.M. Narayana Swamy, learned Counsel for the appellants- defendants and Sri.A.Keshava Bhat, learned counsel for respondent No.1(a)/LR of the plaintiff.
7. It is the contention of the learned Counsel for the defendants that the GPA executed in favour of the plaintiff has been revoked, the defendants have retained possession over the suit schedule properties. Plaintiff admitted defendants' title. Whether plaintiff was authorised to deal with the property is the question to be determined after the trial. In the plaint, there is an allegation that the -6- NC: 2023:KHC:36664-DB RFA No. 162 of 2014 layout has been formed in the suit property and sale deeds were executed in favour of several parties. It was argued that without arraying the purchasers as parties, the suit is not maintainable. These aspects have not been considered by the Trial Court. The defendants have not engaged any Advocate, they were not aware of the decree of the suit and therefore, there is a delay of 646 days in filing the appeal.
7.1. Learned counsel further submitted that since the plaintiff has admitted defendants' title, reasonable opportunity may be provided to the defendants to contest the suit. If they are permitted to file written statement, the real facts will come out and proper issues can be framed and adjudicated. Hence, he sought for an opportunity to the defendants to contest the suit.
8. Per contra, learned counsel for first legal representative of the plaintiff has contended that the -7- NC: 2023:KHC:36664-DB RFA No. 162 of 2014 first defendant and others have executed a General Power of Attorney permitting the plaintiff to invest, develop, form the layout and also authorised him to alienate the property. Accordingly, layout was formed and sites were allotted to the members of Akhila Havyaka Mahasabha. To unlawfully enrich themselves, first defendant has created a Gift Deed in favour of the second defendant and tried to interfere with the property by giving publication in the newspaper. The suit is of the year 2005. Therefore, defendants are not genuine in their conduct and therefore they cannot be permitted to contest the suit.
9. We have given our anxious consideration to the arguments addressed on behalf of the parties and perused the records.
10. The point that arises for our consideration is, -8- NC: 2023:KHC:36664-DB RFA No. 162 of 2014 "Whether the impugned judgment is perverse and calls for interference?"
11. The material on record shows that the first defendant was the owner of the suit schedule properties. He has executed General Power of Attorney along with six others in favour of the plaintiff for development of the land into layout. He has also executed a General Power of Attorney for alienation of the sites formed in the said layout in favour of members of the Akhila Havyaka Mahasabha. Accordingly, plaintiff has developed the land, formed the layout and sold the sites to the members of Akhila Havyaka Mahasabha. After alienation of the sites, first defendant has executed a gift deed in favour of his wife, the second defendant and issued a newspaper publication.
12. The issues those arise for consideration before the Court are, -9- NC: 2023:KHC:36664-DB RFA No. 162 of 2014
(i) Whether defendant No.1 and six others have executed the registered GPA on 14.11.1996 in favour of the plaintiff authorizing him to develop and form layout in the suit property?
(ii) Whether defendant No.1 has executed Power of Attorney on 25.10.2001 authorizing the plaintiff and one B.M.Venugopal to sell the sites formed in the layout?
(iii) Whether defendant No.1 entered into an agreement on 25.10.2001 for sale of the suit schedule property? These are the aspects that require consideration on merits.
13. As we observe from the material on record, the defendants are represented by an Advocate by name 'MBS'. The argument of the learned counsel for the defendants is that they have not engaged the services of the said Advocate and they were not aware of the instant suit. The suit is of the year 2005, it was decreed in the year 2012 and the
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NC: 2023:KHC:36664-DB RFA No. 162 of 2014 instant appeal is filed in the year 2014. The impugned judgment is one-sided without affording an opportunity to the defendants to place their defence.
14. Admittedly, defendant No.1 is the owner of the property and if an opportunity is given to him to file the written statement about the Power of Attorney and also the agreement, the issue can be resolved on merits. For the laches on the part of the defendants, the plaintiff has to go before the Trial Court once again. Hence, the plaintiff has to be adequately compensated by the defendants for the opportunity to contest the suit. In the facts and circumstances of the case, and particularly the fact that several sites have been sold, we are of the opinion that reasonable opportunity has to be given to the defendants to place their written statement and to urge their claim on merits. Hence, without touching the merits of the case, we deem it
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NC: 2023:KHC:36664-DB RFA No. 162 of 2014 appropriate to remit the case to the trial court by imposing costs. In the result, the following;
ORDER
(i) Appeal is allowed;
(ii) The impugned judgment and decree is set aside;
(iii) O.S.No.17837/2005 is restored to the file of the XXVIII Additional City Civil Judge at Mayohall Unit, Bangalore, to the stage of filing of written statement by the defendants;
(iv) The Trial Court is requested to receive the written statement filed by the defendants, frame issues, permit the parties to lead further evidence and to adjudicate the issue on merits in accordance with law, as expeditiously as possible;
(v) The defendants shall pay cost of Rs.50,000/-
to the plaintiff on the first day of appearance;
(vi) Without further notice, parties shall appear before the Trial Court on 29.11.2023;
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(vii) Refund of court fee to the defendants is ordered as per Rules.
Sd/-
JUDGE Sd/-
JUDGE KNM CT:HS List No.: 1 Sl No.: 47