Bangalore District Court
Nagaraj vs Pillaiah I V on 15 July, 2025
KABC010123802005
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26).
Dated this the 15th day of July, 2025.
Present
Sri Vijaya Kumar Rai, B.Com., LL.B.,
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.2221/2005
Plaintiffs: 1) Sri Nagaraj
s/o Gurumurthy
Aged about 44 years
2) Smt. Shantha
w/o Late Manjunatha
Aged about 34 years
3) Shobha
d/o Late Manjunatha
Aged about 19 years
4) Sri Manohar
s/o Late Manjunatha
Aged about 15 years
5) Geetha
d/o Late Manjunatha
Aged about 17 years
6) Annappa
s/o Late Manjunatha
Aged about 13 years
Plaintiffs No.4 to 6 are minors
represented by their mother
Smt.Shantha as guardian i.e.,
plaintiff No.2.
2 O.S.No.2221/2005
7) Smt.Lakshmamma
w/o Late Krishna
Aged about 41 years
8) Narasimha
s/o Late Krishna
Aged about 13 years
9) Ambi d/o Late Krishna
Aged about 11 years
10) Nanda d/o Late Krishna
Aged about 10 years
Plaintiffs No.8 to 10 are minors
represented by their mother and
guardian Smt.Lakshmamma
11) Sri Srinivasa
s/o Late Gurumurthy
Aged about 36 years
12) Sri Gopal
s/o Late Gurumurthy
Aged about 33 years
13) Smt.Jayalaxmi
d/o Late Gurumurthy
Aged about 45 years
14) Sri Chinnappa
s/o Venkataswamy
Aged about 46 years
All are r/at Bandepalya
Begur Hobli, Bangalore South Taluk
represented by their GPA Holder
Sri Gopal s/o Late Gurumurthy
aged about 33 years
r/at Bandepalya, Begur Hobli
Bengaluru South Taluk.
(By Sri M. Prakash., Adv. For plaintiffs
No.1,2,7,11 & 13; Sri K.V.Subramani., Adv.
For plaintiff No.12 and plaintiffs
3 O.S.No.2221/2005
No.3,4,5,6,8,9,10,14- Retired)
Vs.
Defendants: 1) Sri I.V. Pillaiah
s/o Patel Venkataramonappa
major in age
r/at Ittanagu Village
Sarjapura Hobli
Bengaluru South.
2) Sri Narayanappa
s/o Patel Venkataramonappa
major in age
r/at Ittanagur Village
Sarjapura Hobli
Bengaluru South.
3) Smt.Sarojamma
w/o Thimmareddy
major in age
r/at Aruppali Village
Sarjapur Hobli
Bengaluru South.
4) Sri I.M. Shettyraju
s/o I.S. Munivenkatappa
major in age
r/at No.28, 19th Cross
7th Main, N.S. Palya
BTM Layout II Stage
Bengaluru-560 076.
5) Sri S. Madhusudhan
s/o Sriramareddy
major in age
r/at No.98, VII Cross
8th Main, J.P. Nagara
3rd Phase, Bengaluru-78.
6) Smt.S.Nagarathna
w/o Muniraju
major in age
r/at No.7/1, 19th Corss
4 O.S.No.2221/2005
7th Main, N.S. Palya
B.T.M Layout, II Stage
Bengaluru-76.
7) Smt.P.Anuradha
w/o Settyraju
major in age
r/at No.28, 19th Cross
7th Main, N.S. Palya
B.T.M Layout, II Stage
Bengaluru-76.
8) Smt.Yashodamma
w/o Pillaiah
major in age
r/at Ittangur Village
Sarjapur Hobli
Bengaluru South.
9) Smt.R.Saraswathamma
w/o Narayana
major in age
r/at Ittangur Village
Sarjapur Hobli
Anekal Taluk
Bengaluru District.
10) Smt.P.Aruna
w/o S. Ananda
major in age
r/at Durgesh Electricals
Besides Aliance College
N.S. Palya, B.T.M Layout
II Stage, Bengaluru-76.
11) M. Anusuyamma
d/o Munivenkatappa
major in age
r/at No.28, 19th Cross
7th Main, N.S.Palya
B.T.M Layout, II Stage
Bengaluru-76.
12) Sri B.V. Suresh
s/o Sri N. Venkataswamy Reddy
5 O.S.No.2221/2005
aged about 46 years
r/at Dommasandra village
Sarjapura Hobli
Anekal Taluk
Bengaluru District.
13) Sri K. Shekar Raju
s/o K. Ramaraju
aged about 43 years
r/at No.5, 1st Cross
Devi Nagara
Bengaluru-05.
14) Sri B.M. Amaresh Reddy
s/o Muni Reddy @ Bodareddy
major in age
r/at Banahalli village
Atibele Hobli
Bengaluru-09.
15) Sri A.C. Chetak
s/o Channabasappa
major in age
r/at No.381, 42nd Cross
9th Main, 5th Block
Jayanagara
Bengaluru-41.
16) Sri A.C. Deepak
s/o Channabasappa
major in age
r/at No.381, 42nd Cross
9th Main, 5th Block
Jayanagara
Bengaluru-41.
17) Smt.Meenakshi V
w/o Dr.Vinod Reddy
aged about 27 years
r/at No.40/A, 17th Main
100 Feet Road, 4th Block
Koramangala
Bengaluru-34.
(Case against D.17 dismissed
as per the order dtd:16.01.2012)
6 O.S.No.2221/2005
18) Sri H.P. Subbareddy
s/o H.T. Pillareddy
aged about 42 years
r/at No.208, Nadubeedi
Thimmareddy Layout
Hulimangala Village & Post
Jigani Hobli, Anekal Taluk
Bengaluru District-560105.
19) M/s TGS Construction Pvt.Ltd
having its office at L-142
Ground Floor, 5th Avenue
5th Main Road, 6th Sector
HSR Layout, Bengaluru - 560 102
Represented by its
Managing Director
Dr.Mandeep Kaur.
(By Sri V. Anand, Adv. For D.1; Sri M.
Munegowda, Adv. For D.2 & 9; Sri V. Sanjay
Krishna, Adv. for D.4,6,7,8,10 & 11; Sri M.
Erappa Reddy, Adv. For D.3 & 5; Sri T.
Ravindra, Adv. for D.15 & 16; Sri D.18 by Sri
B.G. Nanjundaradhya, Adv.; D.12 to 14-
Absent; D.17 dismissed & D.19 placed
exparte)
Date of institution of the suit 18.03.2005
Nature of the suit For declaration and delivery
of possession
Date of the commencement 28.07.2024
of recording of evidence
Date on which the judgment 15.07.2025
Pronounced
Total duration Years Months Days
20 03 27
(Vijaya Kumar Rai)
X Addl. City Civil & Sessions Judge,
Bengaluru.
7 O.S.No.2221/2005
JUDGMENT
Initially the plaintiffs No.1 to 14 have filed the suit to declare that they are the absolute owners of the suit 'A' schedule property measuring 4 acres 7 guntas and suit 'B' schedule properties which are part of suit 'A' schedule property and to direct the defendants No.5 to 11 to demolish the structures in 'B' schedule property and for delivery the vacant possession of the suit 'B' schedule property. Additional reliefs were also sought to declare that the compromise decree obtained by the defendants in O.S.No.7604/2004 is not binding on the plaintiffs in respect of suit 'B' schedule property and for a permanent prohibitory injunction. In the mean time, defendant No.8 has filed the counter claim to declare that she is the absolute owner of two bits of lands measuring 5 ½ guntas and 5 guntas respectively which is the part of suit 'A' schedule property as described in the counter claim and also for consequential relief of permanent prohibitory injunction restraining the plaintiffs from interfering with her possession over the counter claim schedule property. Subsequently, the plaintiffs have filed a memo seeking permission to withdraw the suit which came to be accepted by this Court and the suit came to be withdrawn as per the order dated 28.09.2015. Thereafter, the defendant No.8 has prosecuted the counter claim filed by her.
8 O.S.No.2221/2005
2. The brief facts of the counter claim filed by the defendant No.8 is as hereunder:-
The larger extent of land measuring 4 acres 27 guntas including 27 guntas of kharab land situated at Hongasandra village, Begur hobli, originally belonged to one Thimma Reddy.
One Gurumurthy Bhovi and Chinniga Bhovi were the tenants in respect of this land under Thimma Reddy. The above tenants filed Form No.7 before the Land Tribunal, Bengaluru South Taluk and Land Tribunal in the proceedings No.LRF-250/74-75 granted occupancy rights in favour of Gurumurthy Bhovi and Chinniga Bhovi as per the order dated 08.01.1980 and grant certificate was also issued on 12.10.1979. In this way, the entire land was the self-acquired property of Gurumurthy Bhovi and Chinniga Bhovi. Later Gurumurthy Bhovi and Chinniga Bhovi have executed a registered general power of attorney coupled with monetary consideration in favour of defendants No.1 to 4 on 22.10.1987 registered before the Sub Registrar, Bengaluru South Taluk. The plaintiffs herein being the children of Gurumurthy Bhovi and Chinniga Bhovi jointly sworn an affidavit in respect of the property bearing Sy.No.116 measuring 1 acre dry land which is the part of larger extent confirming the power of attorney executed by Gurumurthy Bhovi and Chinniga Bhovi by receiving Rs.23,000/- on 20.12.1995 and also a sum of Rs.50,000/- on 9 O.S.No.2221/2005 15.12.1998 from defendants No.1 & 2. The property being the self-acquired property of Gurumurthy Bhovi and Chinniga Bhovi, the defendants No.1 to 4 have given authority to sell the same as per Clause-4 of power of attorney which is ratified by the plaintiffs. The possession was also delivered to the holders of power of attorney. The sale deed could not be registered as there was prohibition for the fragmentation of agricultural property.
Pursuant of the power of attorney, the defendants No.1 to 4 have executed several sale deeds in favour of other defendants and delivered the vacant possession to the purchasers. This defendant No.8 is the bonafide purchaser of total extent of 10 ½ guntas of land from defendants no.1 to 4 after verifying the relevant documents and mother deeds. The power of attorney was neither cancelled nor revoked by the executants at the time of execution of the sale deeds. The defendant No.8 has purchased the total extent measuring 10 ½ guntas described in the counter claim through a registered sale deed dated 18.03.1988 for a valuable consideration of Rs.1,20,000/- from defendants No.1 to 4 and therefore defendant No.8 became the absolute owner of the counter claim property for which she is entitled for a relief of declaration and injunction against the plaintiffs.
10 O.S.No.2221/2005
3. The counter claim was filed on 12.09.2006. The plaintiffs No.1,2,7,11 & 13 have filed written statement to the counter claim on 27.07.2024 which is adopted by plaintiff No.12 on 05.08.2024 by filing a memo. In the counter claim, the plaintiffs No.1, 2, 7, 11 & 13 have admitted the grant of occupancy right in favour of Gurumurthy Bhovi and Chinniga Bhovi in respect of the entire property. But they have denied that they were their self- acquired properties. It is contended by them that it was granted by the Land Tribunal on behalf of the family and therefore it was not the self-acquired property of Gurumurthy Bhovi and Chinniga Bhovi. The execution of power of attorney claimed by the defendant No.8 and delivery of the possession are also denied by them. It is contended by the above plaintiffs that one Mr.Kanda Bhovi was the propositus of the plaintiffs' family and the plaintiffs being the economically depressed class people belonging to schedule caste their ancestors were tenants and occupation of 4 acres 27 guntas including 20 guntas of kharab, which includes the counter claim schedule property and after the demise of Kanda Bhovi, his son Chinnaga Bhovi and grand-son Venkataswamy and the rest of the joint family members continued in joint possession and occupation as tenants and after the advent of Karnataka Land Reforms Act, the property vested with the Government and thereby Gurumurthy Bhovi and 11 O.S.No.2221/2005 Chinnaga Bhovi, being the senior male members filed application seeking confirmation of occupancy rights and therefore the Tribunal has confirmed occupancy rights. It is also contended that occupancy rights were conferred with a non-alienation condition for a period of 15 years and plaintiffs have continued in possession of the property. It is also contended that revenue entry is also continued in the name of the plaintiffs which remains unchallenged. It is specifically pleaded that the GPA dated 22.10.1987 was not at all executed by Gurumurthy Bhovi and Chinnaga Bhovi and the signatures or LTMs found therein are not made by them and it is forged and fabricated.
4. The above plaintiffs have also pleaded that they wanted to drill a borewell in the suit schedule property. But, they did not know the process of law as there were futile litigations and hence their relatives advised them that one Suresh Reddy, Amresh Reddy and Shekhar Raj are well aware and also politically influential and they would get necessary permission immediately and clear the disputes and therefore the plaintiffs and their joint family members approached them who had agreed to obtain necessary permissions and hence they have obtained signatures to the documents styled as GPA to deal with the property for the purpose of obtaining sanction for the drilling of borewell and also clear the disputes. They have obtained several signatures of the 12 O.S.No.2221/2005 plaintiffs in various blank papers, written papers and also other documents and filed this O.S.No.2221/2005 without the notice of the plaintiffs by taking advantage of their illiteracy. It is also stated that the suit is not personally filed by the plaintiffs.
5. The plaintiffs have further pleaded that the property claimed in the counter claim is unidentifiable properties and the plaintiffs have filed O.S.No.9274/2018 in respect of the family properties including the counter claim properties and therefore the remedy to the defendant No.8 is to seek general partition as against all the joint family members and therefore the suit is liable to be dismissed. It is further contented that the counter claim is barred by limitation and therefore, the counter claim is liable to be dismissed.
6. On the basis of the above pleadings, this Court has framed the following issues and addl. Issues:-
ISSUES
1) Whether the defendant No.8 proves that the counter claim schedule properties were the self-
acquired properties of late Gurumurthy Bhovi and Chinnaga Bhovi as contended by her?
2) Whether the defendant No.8 proves that she has derived absolute title over the counter claim schedule properties through the sale deed dated 18.03.1998?
13 O.S.No.2221/2005
3) Whether the plaintiffs No.1, 2, 7, 11 and 13 prove that counter claim schedule properties are their joint family properties?
4) Whether the plaintiffs No.1, 2, 7, 11 and 13 prove that the relief claimed by defendant No.8 in her counter claim is barred by law of limitation?
5) Whether the defendant No.8 proves her possession over the counter claim schedule properties?
6) Whether the defendant No.8 proves the interference of the plaintiffs over her possession in respect of the counter claim schedule properties?
7) Whether the defendant No.8 is entitled for relief of declaration of title and injunction?
8) What order or decree?
ADDL. ISSUES
1) Whether the defendant No.8 proves that the GPA dated 22.10.1987 executed by Gurumurthy Bhovi and Chinniga Bhovi was coupled with interest?
2) Whether the plaintiffs prove that Gurumurthy Bhovi died on 08.06.1997?
7. In support of the case of the defendant No.8, her GPA holder who is also defendant No.1 I.V. Pillaiah is examined as DW1 and got marked documents Ex.D.1 to 27. On behalf of the plaintiffs, plaintiff No.12 is examined aw PW1 and got marked 14 O.S.No.2221/2005 documents at Ex.P1 to 9. During the cross-examination of P.W.1, memo is marked Ex.C1 and his signature is marked as Ex.C1(a).
8. Heard the arguments. Learned counsel appearing for the plaintiffs has submitted notes of arguments.
9. Findings of this Court on the above issues and addl. Issues are as hereunder:
Issue No.1 : In the affirmative Issue No.2 : In the affirmative Issue No.3 : In the negative Issue No.4 : In the negative Issue No.5 : In the affirmative Issue No.6 : In the affirmative Issue No.7 : In the affirmative Addl. Issue No.1 : In the affirmative Addl. Issue No.2 : In the affirmative Issue No.9 : As per final order, for the following:
REASONS
10. Issues No.1 to 3 and Addl. Issues No.1 & 2:- Initially this suit was filed by the plaintiffs to declare that they are the absolute owners of the suit 'A' & 'B' schedule properties. Suit 'A' schedule property is the property in Sy.No.116 situated at Hongasandra Village, Begur Hobli, Bengaluru south taluk measuring 4 acres 7 guntas. There are two items in suit 'B' 15 O.S.No.2221/2005 schedule property. Item No.1 is described as property measuring 60x120 feet. Item No.2 is described only as east-west 80 feet. Suit 'B' schedule property is stated to be part of suit 'A' schedule property. The plaintiffs have also sought a mandatory injunction directing the defendants No.5 to 11 to demolish the structures put up in 'B' schedule property and to deliver the vacant possession of the suit 'B' schedule property by declaring that the compromise decree obtained in O.S.No.7604/2004 is not binding on the plaintiffs. Subsequently, the plaintiffs have filed a memo on 27.07.2015 for withdrawal of the suit and said memo is accepted by this Court on 28.09.2015 and the suit filed by the plaintiffs came to be dismissed as withdrawn.
11. The defendant No.8 along with the counter claim dated 12.09.2006 filed IA No.8 under Order 39 Rules 1 & 2 CPC for the relief of temporary injunction in respect of the counter claim schedule property totally measuring 10 ½ guntas which is the part of suit 'A' schedule property measuring 4 acres and 7 guntas. This Court in I.A.No.8 filed by defendant No.8 and I.A.No.5 filed by some other defendants granted an order of temporary injunction restraining the plaintiffs from alienating or encumbering the suit schedule property. After the dismissal of the suit filed by the plaintiff, the defendant No.8 has continued her counter claim and evidence is recorded by framing the issues. In the counter 16 O.S.No.2221/2005 claim, the defendant No.8 has sought the relief of declaration of title in respect of counter claim schedule property totally measuring 10 ½ guntas on the basis of the registered sale deed dated 18.03.1998 executed in her favour for a consideration amount of ₹1,20,000/- and also for the relief of permanent prohibitory injunction against the plaintiffs from interfering with her possession over the suit schedule property.
12. It is the contention of the defendant No.8 that the suit schedule property originally belonged to one Thimma Reddy under whom one Gurumurthy Bhovi and Chinnaga Bhovi were the tenants who have filed Form No.7 before the Land Tribunal and Land Tribunal has granted occupancy right in their favour through a grant certificate dated 12.10.1979. It is her contention that, subsequently, Gurumurthy Bhovi and Chinnaga Bhovi have executed a registered general power of attorney coupled with the monitory consideration in favour of defendants No.1 to 4 on 22.10.1987 and later again, Gurumurthy Bhovi and Chinnaga Bhovi along with their children, who are the plaintiffs herein jointly sworn to an affidavit in respect of the 1 acre dry land including the counter claim schedule property by receiving ₹23,000/- and Rs.50,000 on 20.12.1995 and 15.12.1998 respectively. It is contended by defendant No.8 that the power of attorney is a registered power of attorney authorising to sell the property and 17 O.S.No.2221/2005 the possession was delivered through the general power of attorney which is acknowledged by a subsequent affidavit dated 29.02.1988 and now the plaintiffs are trying to interfere over the suit schedule property and therefore filed this suit.
13. The written statement of the plaintiffs to the counter claim is that the plaintiffs are governed by Mitakshara Law and they belong to Bhovi Community which is a weaker section and economically depressed class, their ancestors were the tenants and in occupation of the property bearing Sy.No.116 measuring 4 acres and 27 guntas including 20 gunta of kharab, which includes the counterclaim property and upon the demise of originator one Kandha Bhovi, his son, Chinna Bhovi and grandson Venkataswamy and other family members continued to join possession and occupation as tenants and on the advent of Land Reforms Act, Gurumurthy Bhovi and Chinniga Bhovi being the Senior male members filed application and grant was made in their favour and thereafter, they are in possession of the property. While the defendant No.8 has taken up a contention that it was the self-acquired property of Gurumurthy Bhovi and Chinniga Bhovi, the plaintiffs herein have taken up a contention that it is a joint family property. In this regard, learned counsel appearing for the plaintiffs has strongly placed reliance upon the Section 2(10) of Karnataka Land Reforms Act and contended that in case of 18 O.S.No.2221/2005 joint family, the land shall be deemed to be cultivated personally if it is cultivated by any member of such family and in case of individual who has a spouse or spouses, such individual, the spouse or spouses and their minor and unmarried daughters if any constitute the family and therefore Chinniga Bhovi and Gurumurthy Bhovi had no absolute right to sell the suit schedule property in anyway. Learned counsel appearing for the plaintiffs also relied upon the decision of our Hon'ble High Court rendered in the case of Mallappa and another v/s State of Karnataka (ILR 2006 KAR 3610) wherein the Hon'ble High Court has held that if one member of the joint family cultivates the land and if such cultivation is on behalf of his family, the said benefit should enure to all members of the family. The Hon'ble High Court in this decision has also observed that it is for the Land Tribunal is the competent authority to enquire into the questions as to whether the cultivation of the land by the applicant is as a member of a joint family on behalf of family or exclusively by the applicant who sought occupancy rights.
14. In order to decide whether late Gurumurthy Bhovi and Chinniga Bhovi had exclusive right to transfer the counter claim property, iti s necessary to consider the entire evidence available on record including transfer of possession, execution of GPA by late Gurumurthy Bhovi and Chinniga Bhovi, subsequent conduct 19 O.S.No.2221/2005 of the plaintiffs relating to the documents executed by late Gurumurthy Bhovi and Chinniga Bhovi. In the written statement filed by the plaintiffs to the counter claim, they have denied the execution of the power of attorney, delivery of possession and authority of Chinniga Bhovi and Gurumurthy Bhovi to execute such documents. But, in para No.7 of the plaint, the plaintiffs have admitted the execution of registered general power of attorney dated 22.10.1987 in favour of defendants No.1 to 4 contending that they have created only a limited interest to look after the suit schedule property. The specific portion of the pleading of the plaintiffs in para No.7 of the plaint is extracted for reference:-
"7. The plaintiffs submits that when such being the state of affairs, the said Gurumurthy Bhovi and Chinnaga Bhovi created limited interest and power by executing a registered general power of attorney on 22.10.1987 to and in favour of 1) I.V. Pillaiah 2) V. Narayanappa 3) Thimmareddy now dead represented by Smt.Sarojamma 4) I.M. Settyraju to lookafter the suit schedule property, without knowledge, consent of any other joint family coparceners. The said I.V. Pillaiah and others are none other than defendants No.1 to 4".
15. Further, in para No.15 of the plaint, the plaintiffs have admitted the construction of sheds in the suit property by 20 O.S.No.2221/2005 defendants No.5 to 11 including defendant No.8 herein who has filed the counterclaim in the following words:-
"15. The plaintiffs submit that now the defendants 5 to 11 are in hand in glove with each other behind back of plaintiffs, got constructed two sheds in the suit schedule property to the extent described as suit schedule 'B' property, without obtaining any valid license. Though the defendants did not acquire any right, title or interest much less possession under the above circumstances, the defendants taking law into own hands completed their illegal objective".
16. Ultimately in the prayer, plaintiffs have sought a mandatory injunction directing the defendants No.5 to 11 to demolish the structure put up by them in suit 'B' schedule property and deliver the vacant possession to the plaintiffs. The above pleading itself shows that Gurumurthy Bhovi and Chinniga Bhovi have executed the registered general power of attorney dated 22.10.1987 produced by defendant No.8 at Ex.D9. Though the delivery of possession of the suit schedule property is not specifically admitted by the plaintiffs, the very relief sought by the plaintiffs and the pleading of the plaint that the defendant No.8 has also put up construction in suit 'B' schedule property and the relief claimed for mandatory injunction clearly shows that the 21 O.S.No.2221/2005 possession of the suit schedule property was delivered by executing the general power of attorney dated 22.10.1987.
17. In the written statement filed by the plaintiffs to the counter claim, they have made an attempt to contend that one Suresh Reddy and Amresh Reddy and Shekhar Raj are very well- known with regard to the property and they have assured that they would get sanction for the drilling of borewell in the suit schedule property and obtained some documents including GPA to transact on behalf of them and by misusing the signed papers instituted this suit in their name without their consent. The plaintiffs went to the extent of contending that they were totally unaware about the temporary injunction order passed by this Court dated 15.11.2006 in I.A.No.8 filed by the defendant No.8 until the execution of the sale deed dated 11.11.2013. The Court has meticulously examined this aspect more particularly when the plaintiffs have taken up a contention that they were illiterate and economically depressed class of people. As rightly pointed out by the learned counsel appearing for defendant No.8, the plaintiff No.12 Sri Gopal who has given evidence on behalf of the plaintiffs has categorically admitted that he has enrolled as an advocate with the Bar Council in the year 2003 and later he was working as an Auctioner in Manapuram Gold Finance and now practising as an advocate from the year 2016-17. At any rate, he 22 O.S.No.2221/2005 was a LLB graduate much before filing of this suit itself. The question for consideration is whether the present suit was filed without the consent of the plaintiffs is a question that is required to be considered to appreciate the evidence given by the parties and respective contentions raised by the parties. In this regard, it is important to note that the present suit came to be filed on 18.03.2005 and subsequently the defendant No.8 has filed the counter claim on 12.09.2006. Several proceedings have taken place in this suit. Initially, on 25.05.2012, an amended plaint was filed which is duly signed by PW1 Gopal. Again an amended plaint came to be filed on 31.10.2012. PW1 Gopal has signed this amended plaint along with an affidavit duly executed before the Notary. One Sri M.B.C., Advocate filed Vakalath to the plaintiffs on 27.09.2012. PW1 Sri Gopal has signed the Vakalath as a GPA holder of other plaintiffs. Later on 06.03.2014 one Sri M.P. Advocate filed Vakalath to some of the plaintiffs. After filing of the suit, in I.A.No.8 filed by defendant No.8 the plaintiffs were restrained from alienating the suit schedule property by an order of temporary injunction granted by this Court on 15.11.2006. Subsequently, the portion of suit schedule property measuring 2 acre was sold in favour of defendant No.18 Subba Reddy through a registered sale deed dated 11.11.2013 produced by the defendants at Ex.D 14. The plaintiffs were signatories to the sale 23 O.S.No.2221/2005 deed. In the meantime on 23.04.2014, temporary injunction was granted against defendant No.18 from selling the suit schedule property. An application was also filed for breach of injunction order against the plaintiffs. The Court has taken judicial notice of the fact that in the application filed by defendant no.8 under Order 39 Rule 2A CPC after detailed trial, the plaintiffs were found guilty for the disobedience of the injunction order in the order dated 15.07.2025 passed in I.A.No.8 in a separate proceedings in Misc.No.546/2014. The evidence reveals that again defendant No.18 has sold it to defendant No.19 through a sale deed dated 20.07.2015 as per Ex.D15. After all these transactions on 27.07.2015, the plaintiffs have filed a memo for withdrawal of the suit which came to be accepted by this Court on 28.09.2015. If the suit was filed without the consent and the knowledge of the plaintiffs, the plaintiffs would not have participated in the subsequent proceedings more particularly while filing the amended plaints on several occasions referred to above. Further, the plaintiffs have changed their advocate after filing of the suit. Therefore, contention of the plaintiffs that the suit was filed without their knowledge and consent cannot be accepted at all and it is required to be rejected on threshold. The subsequent conduct of the plaintiffs, more particularly withdrawal of the suit after execution of the sale deed in favour of the defendant No.18, 24 O.S.No.2221/2005 speaks in volumes about the conduct of the plaintiffs. Therefore the plaintiffs cannot disown the facts pleaded in the plaint and try to escape from the admissions given in their plaint contending that the suit was filed without their knowledge and consent.
18. Now coming to the source of acquisition of the property is concerned, though the plaintiffs have taken up a contention that the ancestors of the plaintiffs were tenants in respect of the suit schedule property, there is nothing on record to show that any of the ancestors of Gurumurthy Bhovi and Chinniga Bhovi were cultivating the suit schedule property at any point of time. There is no iota of evidence to show that their ancestors were at least in possession of it before them. The RTC produced by the plaintiffs at Ex.P10 itself indicates the name of Gurumurthy Bhovi and Chinniga Bhovi without the name of any of the plaintiffs. Though an argument is advanced to contend that the family includes the minor children and unmarried daughters, it is important to note that after the execution of the GPA dated 22.10.1987 produced at Ex.D9, Gurumurthy Bhovi, Chinniga Bhovi, plaintiff No.1 Nagaraj, one Manjunatha, who is the husband of plaintiff No.2 and father of plaintiffs No.3 to 6, one Krishna, who is the husband of plaintiff No.7 and father of plaintiffs No.8 to 10, one Srinivasa, who is plaintiff No.11, one Sri Gopal, who is plaintiff No.12 and PW1 herein and Channa Bhovi the plaintiff No.14 herein have 25 O.S.No.2221/2005 executed separate confirmation affidavits dated 29.02.1988, confirming the execution of general power of attorney by Chinniga Bhovi and Gurumurthy Bhovi as per Ex.D10 & 11. Though the plaintiffs have not admitted the execution of Ex.D10 & 11 affidavits, it is duly notarized before the Notary. When a document is notarized before the notary, it carries presumptive value under Section 85 of Indian Evidence Act 1872. Section 85 of Indian Evidence Act provides that the court shall presume that every document purporting to be a power of attorney and to have been executed before a notary was so executed and authenticated. The plaintiffs have not specifically taken up a contention that Ex.D.10 & 11 affidavits are forged documents. The plaintiffs have not even specifically denied their signatures in Ex.D10 & 11. It is not even contended that it was created in collusion with the Notary.
19. It is well settled law that when a document is notarized before the notary, it carries presumptive value under section 85 of Indian Evidence Act 1872. In this regard, in the decision of our Hon'ble High Court rendered in the case of Smt.S. Savithramma v/s Smt.S. Padmavathamma and others (RFA No.1759/2020 (PAR-POS)) dated 26.03.2025, the Division Bench of our Hon'ble High Court observed as hereunder.
26 O.S.No.2221/2005
"39. It is to be noticed that the documents marked as Ex.D.7 and Ex.D.8, which are General Powers of Attorney, were presumed to be validly executed and authenticated under Section 85 of the Indian Evidence Act, 1872. As per the statutory mandate, every document purporting to be a power of attorney, if executed before and authenticated by by a Notary public or other competent authority, it is required to be presumed by the Court as duly executed and authenticated. In the present case, both Ex.D.7 and Ex.D.8 bear notarization and thus attract the statutory presumption of validity. If at all the Notary had authenticated the GPA in the absence of the plaintiff, she ought to have informed the same to the Principal District Judge, Bengaluru having immediate control over the Notary. Further, she could have given a complaint to the jurisdictional police for the act of fraud committed by the Notary along with Defendant No.6. .................
40. These findings were in line with the trial court's conclusion, where it was held that the plaintiff had neither produced the notary for examination nor initiated action for alleged misconduct, nor did she provide any expert evidence to support her claim of forgery. The Trial Court rightly upheld the presumption of regularity under Section 85 of the Indian Evidence Act and observed that the plaintiff's vague and general 27 O.S.No.2221/2005 denial lacked specificity and was not supported by pleadings of fraud or fabrication.
41. Under Section 101 of the Indian Evidence Act, the burden of proof initially rested with the plaintiff who alleged that Ex.D.7 was not executed by her and was a product of fraud. Since the legal right claimed by the appellant was based on the non-execution or fraudulent nature of the GPA, the burden was required to be discharged by her through tangible evidence. No expert evidence, handwriting comparison, or other probative material was produced to establish her claim. In the case of Rattan Singh v. Nirmal Gill, (2020 SCC OnLine SC 936), it was held that in the absence of credible proof of forgery or fraud, and in light of supporting evidence adduced by the defendants, the balance tilts in favour of the defendants. Likewise, in the present case, the failure of the appellant to discharge her burden under Section 101 of the Indian Evidence Act rendered the challenge to the GPA, unsustainable. ................
43. Additionally, under Section 106 of the Evidence Act, the burden to prove facts within the special knowledge of a person rests on that person. Since Defendant No.6 was the power of attorney holder and derived his authority under Ex.D.7, the obligation to establish its proper execution was cast upon him. However, the initial benefit of presumption under Section 85 of the 28 O.S.No.2221/2005 Indian Evidence Act enabled the document to stand on its own unless dislodged by counter- evidence. The plaintiff's inability to produce even prima facie proof of non-execution meant that the statutory burden on defendants did not intensify. The testimony of attesting witnesses and other circumstantial proof further corroborated the validity of the impugned documents".
20. Therefore, though the plaintiffs have not admitted the execution of Ex.D10 and 11 affidavits, the presumption available in favour of defendant No.8 in respect of the document and the overall evidence given by the parties, proved the execution of Ex.D10 and 11 affidavits. All the plaintiffs/their parents except plaintiff No.13 Jayalakshmi have signed Ex.D.10 & 11 affidavits and confirmed the sale of the property and also the delivery of possession. They have also stated in Ex.D.10 & 11 that they have received consideration amount and as there was prohibition for registration sale deed could not be executed immediately. The confirmation affidavit given by the plaintiffs to the general power of attorney, which is specifically referred to in the affidavit indicates that Gurumurthy Bhovi and Chinniga Bhovi were the absolute owners of the suit schedule property. Even if it is considered that they had no absolute right, the confirmation affidavit executed by these plaintiffs is sufficient proof of transfer of title in favour of defendant No.8 through a sale deed dated 29 O.S.No.2221/2005 18.03.1998 produced that Ex.D2. The court holds that the execution of Ex.D10 & 11 are proved for another reason that plaintiffs have attempted to suppress the real facts from the Court. They have made an attempt to contend that the suit was filed without their consent, which is proved otherwise by the conduct of the parties more particularly the subsequent participation of the plaintiffs in the subsequent proceedings by filing fresh amended plaint, fresh affidavit, by executing fresh vakalath in favour of subsequent counsel, etc. Further, the plaintiffs have made an attempt to show that they were unaware about the temporary injunction order passed by this Court in I.A.No.8 on 15.11.2006 even until the year 2013, which is falsified by the proof of disobedience of injunction order passed in Misc. Case No.545/2014 and Misc.Case No.546/2014 dated 15.07.2025. In view of this, the entire evidence available on record clearly shows that the suit schedule property was the self- acquired property of Gurumurthy Bhovi and Chinniga Bhovi and even if the Chinniga Bhovi and Gurumurthy Bhovi were not absolute owners of the suit schedule property, by execution of confirmation affidavit by the plaintiffs at Ex.D10 & 11, they have confirmed and ratified the general power of attorney and sale deed. Hence, they are estopped from denying the facts sworn in Ex.D.10 & 11 affidavits. In view of this, the decision of our Hon'ble 30 O.S.No.2221/2005 High Court rendered in the case of 'Mallappa' referred to above relied upon by the learned counsel appearing for the plaintiffs has no application to the present set of facts. Though plaintiff No.13 Jayalakshmi was not a party to the Ex.D10 & 11 affidavits, the plaintiffs have not pleaded either in the plaint or in the written statement filed by them to the counter claim that she was an unmarried daughter at the time of execution of the document. There is nothing on record to show that she had a right over the counter claim schedule property at the time of execution of Ex.P.2 sale deed dated 18.03.1998. Under these circumstances, mere absence of plaintiff No.13 is not a ground to deny transfer of absolute title over the counter claim schedule property in favour of defendant No.8, which is evidenced by series of documents and delivery of possession. In view of this, the title is conveyed in favour of defendant No.8 in respect of counter claim schedule property.
21. One of the contentions raised by the learned counsel appearing for the plaintiffs is that the power of attorney was executed within 15 years from the date of grant and it was during the 15 years period of non-alienation condition imposed in the grant. In this regard, learned counsel appearing for the plaintiffs relied upon the decision of our Hon'ble High Court rendered in the case of V. Channappa v/s Channamma and others 2010(3) AIR 31 O.S.No.2221/2005 KAR R512 wherein the Hon'ble High Court has held that by virtue of Section 61 of Karnataka Land Reforms Act, there is a total prohibition from transferring the land of which occupancy rights have been granted to a tenant for a period of 15 years and in case of such transfer the land would vest with the Government. The Hon'ble High Court has further observed that Section 61 is not a bar for entering into an agreement of sale. It appears that there is no dispute about the condition imposed from alienating the property for a period of 15 years from the date of grant. But, the sale deed came to be executed on 18.03.1998 after the period of 15 years. In the meantime, the defendant No.8 has admitted the delivery of possession through the general power of attorney dated 22.10.1987. It is certainly within the period of 15 years. Now, the question for consideration is if the possession was delivered within 15 years, whether the defendant No.8 is entitled for the relief inspite of the violation of statutory conditions imposed in the grant order. No doubt violating the non-alienation clause is required to be viewed seriously and it cannot be taken lightly. But, in the present case, there are several circumstances required to be considered. In the present case, the sale deed is executed after the period of 15 years from the date of grant. Initially the plaintiffs have challenged the alienation by filing a petition before the Assistant Commissioner under the PTCL Act, 32 O.S.No.2221/2005 which came to be dismissed by the Assistant Commissioner in the order dated 31.12.2004 produced at Ex.D27. Subsequently, the plaintiffs have challenged the mutation order passed in favour of defendant No.8 and others which came to be allowed by the Assistant Commissioner in the order dated 04.05.2006 as per the order produced by the plaintiffs at Ex.P6. But, the Assistant Commissioner has not chosen to cancel the grant. Later the matter was taken up by the defendant No.8 and others before the Deputy Commissioner in Revision Petition No.126/2007 dated 07.07.2015 wherein the Deputy Commissioner has specifically observed that the possession was delivered through the GPA dated 22.10.1987 and the non-alienation clause was violated, still the Government has not chosen to cancel the grant and take the possession of the suit schedule property.
22. One of the important aspect that is required to be considered is that though the plaintiffs have impliedly challenged the sale deed executed in favour of defendant No.8 by filing this suit for declaration of their title and other reliefs, subsequently they have withdrawn this suit in the year 2015. As rightly contended by the learned counsel appearing for defendant No.8, the withdrawal of the suit filed by the plaintiffs for the comprehensive relief of declaration of title amounts to abandonment of claim. Order XXIII Rule 1 CPC provides for 33 O.S.No.2221/2005 abandonment of claim. Once the suit is abandoned by the plaintiffs later they cannot re-agitate the matter. Therefore, order 23 rule 4 specifically provides that when the plaintiffs have abandoned the claim they shall be precluded from instituting any fresh suit in respect of subject matter or part of such claim. In this regard, Order XXXIII Rule 1(4) CPC is extracted for ready reference:-
"(4) Where the plaintiff-
(a) abandons any suit or part of claim sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule(3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim".
23. It is not in dispute that the plaintiffs have withdrawn this suit without seeking permission to file separate suit and thereby abandoned their claim in respect of the suit schedule property which includes the counter claim schedule property. In view of the above abandonment of the claim hereinafter the plaintiffs are debarred from claiming the right over the suit schedule property. Therefore, the abandonment of claim by the plaintiffs by withdrawal of this suit has resulted in relinquishment of their claim over the suit schedule property. It is also important to note that the plaintiffs have abandoned their claim after knowing that 2 34 O.S.No.2221/2005 acres of land which includes the counter claim schedule property is alienated to defendant No.18 and subsequently to defendant No.19. The plaintiffs have not even chosen to challenge the sale deed executed in favour of defendant No.18 during the pendency of the suit. Therefore, the abandonment of the claim by the plaintiffs in respect of the property disentitles them to defend the counterclaim filed by the plaintiffs and claim right over the suit schedule property more particularly when the plaintiffs have admitted the possession of defendant No.8 in respect of the counter claim.
24. In so far as the violation of non-alienation clause is concerned, the Hon'ble Supreme Court in the case of Narayanamma and another v/s Govindappa and others (2019) 19 SCC 42 has laid down the law in an elaborate manner. The Hon'ble Supreme Court in this judgment, by relying upon its previous judgments has held that when both the parties are confederates in the violation of provisions, the court has to determine as to whom the balance of justice would tilt. In other words, when there is a non-alienation clause, the vendors should not have sold the property and purchasers should not have purchased the property during the non-alienation clause. Therefore, both the defendant No.8 as well as the plaintiffs were the participators in the illegality. In such a situation, what is the 35 O.S.No.2221/2005 duty of court is explained in the aforesaid judgment in the following words:-
"It is common ground that the approach of the Court in determining the present dispute must be conditioned solely by considerations of public policy. Which principle would be more conducive to, and more consistent with, public interest, that is the crux of the matter. To put it differently, having regard to the fact that both the parties before the Court are confederates in the fraud, which approach would be less injurious to public interest. Whichever approach is adopted one party would succeed and the other would fail, and so it is necessary to enquire as to which party's success would be less injurious to public interest.
13. Out of the two confederates in fraud Respondent 1 wants a decree to be passed in his favour and that means he wants the active assistance of the Court in reaching the properties possession of which has been withheld from him by Respondent 2 and the appellants. Now, if the defence raised by the appellants is shut out Respondent 1 would be entitled to a decree because there is an ostensible deed of conveyance which purports to convey title to him in respect of the properties in question; but, in the circumstances, passing a decree in favour of Respondent 1 would be actively assisting Respondent 1 to give effect to the fraud to which he was a party and in that sense the Court would be allowed to be used as an instrument of fraud, and that is clearly and patently inconsistent with public interest.
14. On the other hand, if the Court decides to allow the plea of fraud to be raised the Court would be in a position to hold an enquiry on the point and determine whether it is a case of mutual fraud and whether the fraud intended by both the parties has been effectively carried out. If it is found that both the parties are equally guilty and that the fraud intended by them has been carried out the position would be that the party raising the defence is not asking the Court's assistance in any active manner;36 O.S.No.2221/2005
all that the defence suggests is that a confederate in fraud should not be permitted to obtain a decree from the Court because the document of title on which the claim is based really conveys no title at all. It is true that as a result of permitting Respondent 2 and the appellants to prove their plea they would incidentally be assisted in retaining their possession; but this assistance is of a purely passive character and all that the Court is doing in effect is that on the facts proved it proposes to allow possession to rest where it lies. It appears to us that this latter course is less injurious to public interest than the former."
25. In the present case, as stated above, the plaintiffs as well as the vendors of defendant No.8 have committed illegality by dealing with the property during the non-alienation clause. But, in so far as the defendant No.8 is concerned, the sale deed is executed in her favour on 18.03.1998 after the expiry of non- alienation period. In such a situation, while determining and adjudicating the dispute, the consideration is public policy and which principle would be more conducive to and more consistent with the public interest. Further, which approach would be less injurious to the public is required to be considered.
26. In the aforesaid decision, Hon'ble Supreme Court in a suit for specific performance of the agreement of sale refused to grant the relief of specific performance wherein the possession was with the vendors. Therefore, in the said decision, the Hon'ble Supreme Court has held that though the defendants would be benefited in spite of their predecessor in title committing an 37 O.S.No.2221/2005 illegality, the dismissal of suit would be only rendering an assistance which is purely passive in character. If the ratio given in the aforesaid decision is applied to the present set of facts, the possession of the suit schedule property was delivered long back which is proved.The sale deed executed in favour of defendant No.8 is subsequent to the non-alieanation period. The plaintiffs have not chosen to question the GPA or delivery of possession either before the execution of sale deed in favour of defendant No.8 or even after the execution of sale deed until the filing of this suit for a period of 8 years. It is also proved that the defendant No.8 has put up some constructions in the property purchased by her. Therefore, question of specific performance of the sale agreement as in the aforesaid decision does not arise. It is also necessary to note that by virtue of the sale deed executed by the plaintiffs by disobeying the order of injunction in favour of defendant No.18 Subba Reddy, he took the possession and demolished the construction carried out in it. It is an act of disobedience committed by the plaintiffs and defendant No.18, which is a serious act with criminal mensrea to obstruct the administration of justice. Selling the counter claim schedule property by violating the temporary injunction order passed by the court is a clear threat to the path of administration of justice and existence of courts of law. It is a very serious act compared to the 38 O.S.No.2221/2005 violation of non-alienation clause imposed in the grant order. Therefore, by comparing the act of the plaintiffs and defendant No.8, the plaintiffs have committed a grave act of illegality and tried to take possession from the defendant No.8 by disobeying the orders passed by this court. Under these circumstances, law do not come in favour of the plaintiffs who have committed the disobedience and tried to take forcible possession of the property from the defendant No.8, who is a senior citizen and woman. The evidence on record show that in spite of committing the disobedience, the plaintiffs have not pleaded apology at the earliest point of time. The plaintiffs have fought this litigation as well as the miscellaneous case filed for breach of injunction order for decades together. The plaintiffs have not challenged the sale deed executed in favour of defendant No.8. In fact, the plaintiffs have relinquished their interest and title over the suit schedule property. Therefore, balance of justice would tilt in favour of the defendant No.8 and not the plaintiffs. Under these circumstances, though the defendant No.8 has sought a relief of declaration of title and injunction, having regard to the peculiar facts and circumstances of this case, the violation of non-alienation clause if any is required to be considered in the light of above facts and court is expected to grant the relief to defendant No.8. 39 O.S.No.2221/2005
27. One of the contention raised on behalf of the plaintiffs is that among the executants of GPA produced at Ex.D9 dated 22.10.1987, Gurumurthy Bhovi died on 08.06.1997 itself and therefore the sale deed executed on 18.03.1988 is subsequent in point of time on the basis of Ex.D9 GPA dated 22.10.1987 and hence the sale deed did not convey any right, title and interest in favour of defendant No.8. On the other hand, the contention of defendant No.8 is that the GPA dated 22.10.1987 was an irrevocable GPA and coupled with monitory consideration.
28. As rightly contended by the learned counsel appearing for the plaintiffs, as per Ex.P5 death certificate, Gurumurthy Bhovi died on 08.06.1997 and the sale deed in favour of defendant No.8 came to be executed on 18.03.1998. Under these circumstances, unless the defendant No.8 is able to show that it was an irrevocable power of attorney, the sale deed will not convey any right, title and interest of Gurumurthy Bhovi in favour of defendant No.8. Ex.D9 GPA shows that it was a registered GPA wherein the GPA holders were authorised to sell, mortgage, gift, lease the counter claim schedule property on their own without the intervention of the execuants of GPA. While in the previous paragraph, this court has held that the execution of Ex.D10 & 11 affidavits are also proved wherein the plaintiffs and Gurumurthy Bhovi have admitted the receipt of consideration amount for the 40 O.S.No.2221/2005 GPA. The contents of affidavit shows that GPA was executed for monitary consideration with authority to sell the property. In this regard, learned counsel appearing for the defendant No.8 strongly placed reliance on the decision of our Hon'ble High Court rendered in the case of M/s Jade Garden Plot Owner's Association v/s Smt.Bhagyalakshmi and others (Civil Revision Petition No.88/2024(IO) dated 25.10.2024) wherein after elaborate discussion, our Hon'ble High Court in para No.12.3, 12.6, 12.7, 12.8, 12.9, 12.10 and 12.11 held as hereunder:-
12.3. The father is stated to have expired on 23.01.1992, and on that ground, it is contended that the Power of Attorney automatically stood terminated with the death of the father. This aspect would have to be looked into in the perspective of a Power of Attorney coupled with interest, since a Power of Attorney which is coupled with interest would not come to an end on the expiry of the person who had issued the Power of Attorney but would continue, since even the person who had issued the Power of Attorney could not have terminated the said Power of Attorney during his lifetime and that the Power of Attorney could be used by the Power of Attorney holder to perform the acts authorised under the said Power of Attorney.
12.6. The contemporaneous documents which have been executed, namely the agreement of sale and Power of Attorney on the very same day as regards the very same property and subsequently the Power of Attorney having executed a sale deed in favour of the agreement holder indicate the connection between the said 41 O.S.No.2221/2005 agreement holder and Power of Attorney holder relatable to the property subject matter of the agreement of sale.
12.7. The Power of Attorney has been executed as a security for the agreement holder so as to assure the agreement holder that he can get a sale deed executed in his favour in view of the compliances already made.
The agent that is the Power of Attorney holder - defendant No.3 being a nominee of defendant No.2, the exercise of rights under the Power of Attorney is for and on behalf of the agreement holder -defendant No.2. Thus, the agent acting for and on behalf of defendant No.2 has an interest which the Power of Attorney exercises for and on behalf of the agreement holder, which in my considered opinion would come within the four corners of Section 202 of the Contract Act, satisfying the requirement laid down by the Hon'ble Apex Court in Mohammad Podiya's case, (supra).
12.8. As held by the Hon'ble Apex Court in Harbans Singh's case, if an interest is created in favour of the Power of Attorney, then the Power of Attorney cannot be terminated. Though under Section 54 of the Transfer of Property Act, an agreement of sale by itself does not create any interest, by executing and registering an agreement of sale, handing over possession, and a Power of Attorney being executed to safeguard the interest of the Agreement holder, an interest is created in favour of both the agreement holder and his nominee, via the Power of Attorney, thereby granting such powers and duties which the Power of Attorney can exercise.
12.9. Thus, the right which has been created in favour of the agreement of sale holder is much beyond a mere agreement of sale and would go beyond the purview of Section 54 of the Transfer of Property Act and the rights which are conferred on the 42 O.S.No.2221/2005 Power of Attorney holder in conjunction with the agreement of sale is one which is coupled with interest, which aspect has been reiterated by the Hon'ble Apex Court in Bhaganbhai Karambhai Bharvad's case holding that post the death of a person who had executed a Power of Attorney, a sale deed executed using such Power of Attorney coupled with interest is valid and that the power of attorney would not come to an end on the death of the person who has executed the power of attorney.
12.10. As further held in Bhaganbhai Karambhai Bharvad's case, there was no requirement of the power of attorney holder to seek for consent of the legal heirs of the deceased and the powers under the Power of Attorney could be exercised to execute a sale deed in favour of the legal heirs of the deceased.
12.11. This view expressed by the Indian Courts also finds mention and support in the celebrated book by the author Bowstead on 'Agency', wherein the author has categorically stated that when a Power of Attorney is given to secure a proprietary interest or donee of the Power of Attorney or the performance of an obligation owed to the donee, the said Power of Attorney is irrevocable.
29. Further, in the case of Channegowda and another v/s N.S. Vishwanathan and others (2023 SCC OnLine Kar.153), our Hon'ble High Court has observed as hereunder:-
"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 43 O.S.No.2221/2005 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".
30. As stated above, when the execution of Ex.D9 GPA dated 22.10.1987 is proved to be a power of attorney authorising to sell the property and coupled with the monetary consideration, it is irrevocable power of attorney and therefore, irrespective of death of Gurumurthy Bhovi, the holders of power of attorney had authority to execute Ex.D2 sale deed dated 18.03.1998. It is also necessary to point out that the pleading of the plaintiffs in O.S.No.9274/2018 produced at Ex.D25 shows that Chinniga @ Chinniga Bhovi died on 05.06.2005 much after the execution of the sale deed. Still he has not chosen to deny the sale deed. He has also not chosen to question the sale deed executed in favour of defendant No.8 during his life time for a period of 7 years. Having regard to all these aspects in the considered opinion of this court, the evidence on record clearly shows that the registered GPA produced at Ex.D9 was an irrevocable power of attorney and therefore, irrespective of death of Gurumurthy Bhovi 44 O.S.No.2221/2005 on 17.10.2003, the sale deed executed on 18.03.1998 has conveyed complete title in respect of the counter claim schedule property in favour of defendant No.8. In view of the reasons stated above issue No.1, 2 and Addl. Issue No.1 & 2 are answered in the affirmative, issue No.3 in the negative.
31. Issue No.4:- The plaintiffs have taken up a contention that the relief claimed in the counterclaim is barred by limitation. In the counterclaim, defendant No.8 has sought the relief of declaration of title and permanent prohibitory injunction. During trial in I.A.No.8 filed by defendant No.8, this court has recorded a finding that defendant No.8 is in possession of the counterclaim schedule property and granted temporary injunction against the plaintiffs. The defendant No.8 has acquired the suit schedule property through the sale deed dated 18.03.1998. The sale deed executed in favour of defendant No.8 is not challenged by the plaintiffs and even if it is challenged in the present suit the claim made by the plaintiffs' is abandoned. When the plaintiffs have instituted this suit on 18.03.2005, the defendant No.8 has filed this counter claim on 12.09.2006. The very filing of the suit against the defendant No.8 resulted in questioning the title and possession of the defendant No.8 over the counter claim schedule property. Therefore, immediately after filing of this suit, the defendant No.8 has filed the counter claim and therefore the 45 O.S.No.2221/2005 counterclaim is within the period of limitation. Consequently, issue No.4 is answered in the negative.
32. Issue No.5:- In the counter claim, the defendant No.8 has asserted that she was in possession of the counter claim property on the basis of the sale deed executed in her favour as per Ex.D2 dated 18.03.1998. While answering issues No.1 to 3, this court has held that the possession of the counter claim schedule property was delivered on the basis of Ex.D9 GPA dated 22.10.1987. In the plaint itself, the plaintiffs have pleaded that defendants including the defendant No.8 have constructed sheds in the counter claim schedule property. The plaintiffs have produced the order of the Deputy Commissioner at Ex.P7 in a Revision Petition filed by defendant No.8 wherein the Deputy Commissioner has also specifically observed that the possession of the counter claim schedule property was delivered to defendant No.8 on the basis of the GPA. Ultimately, the plaintiffs in the present suit have sought for a relief of mandatory injunction directing the defendants No.5 to 11 including defendant No.8 to demolish the structures put up in the schedule property and for delivery of vacant possession in favour of the plaintiffs. Therefore, there is a clear proof that as on the date of filing of the counter claim the defendant No.8 was in possession of the counter claim schedule property.
46 O.S.No.2221/2005
33. Learned counsel appearing for the plaintiffs has specifically pointed out that in the cross-examination of DW1 dated 06.11.2024 has admitted that as on the date of the registration of the sale deed, the counterclaim schedule property was in the ownership and possession of Gurumurthy Bhovi, Channiga Bhovi and his family members. He has also pointed out that DW1 who is the husband of defendant No.8 has admitted that after the execution of the sale deed in favour of defendant No.18, defendant No.18 by taking the assistance of the plaintiffs took the possession of the counterclaim schedule property on 21.12.2013. On the basis of this admission, learned counsel for the plaintiffs vehemently contended that when the defendant No.8 is out of possession, the court cannot give any relief to the defendant No.8 holding that she is in possession of the counter claim schedule property.
34. At first glance, the above argument seemed attractive. But, in the present case, the court is required to consider the circumstances of the case and transfer of possession. This court has already observed that as on the date of filing of the counter claim, the defendant No.8 was in possession of the counter claim schedule property which is admitted by the plaintiffs in the plaint itself. As rightly pointed out by learned counsel appearing for the plaintiffs, DW1 has admitted that defendant No.8 was 47 O.S.No.2221/2005 dispossessed by defendant No.18 with the assistance of the plaintiffs in the year 2013 on the strength of the sale deeds executed by the plaintiffs in favour of defendant No.18.. Such being the case, the question for consideration is whether the court can hold that the defendant No.8 is in possession of the suit schedule property. In this regard, Section 52 of Transfer of Property Act provides that during the pendency of the suit in which a right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any of the party to the suit so as to affect the rights of other party. This principle called as a lis pendens which embodies a public policy that it is necessary for the administration of the justice that the decision of a court must bind all who claim an interest in the property and also who derive the title. In other words, even if any changes have taken place during the pendency of the suit in respect of the possession, the parties are bound by the decree. If in the present case, the court holds that the defendant No.8 has failed to prove her title, it will not have any bearing with regard to the change of possession. But, when the court holds that the defendant No.8 has proved her title over the suit schedule property and if her possession was taken during the pendency of the suit, the plaintiffs or any other parties cannot take up a contention that the defendant No.8 is out of possession 48 O.S.No.2221/2005 and she is not entitled for the relief which was sought in the suit before such change of possession. It is true that in the normal circumstances, the defendant No.8 could have amended the counter claim to claim possession over the property. But, the present case is an extraordinary case wherein immediately after the appearance of defendant No.8, she has filed this counter claim, apprehending her dispossession over counter claim property. She has also filed I.A.No.8 under Order 39 Rules 1 & 2 CPC for a relief of temporary injunction against the plaintiffs from dispossessing her. Said application was contested by the parties and by a considered order, this court has allowed I.A.No.8 filed by the defendant No.8 and directed the plaintiffs not to alienate the suit schedule property. In spite of that, after seven years from the date of the temporary injunction order passed by this court, the plaintiffs have illegally sold the counter claim schedule property to defendant No.18 through a registered sale deed dated 11.11.2013 produced at Ex.D14. The matter did not end here. The defendant No.18 illegally and forcibly demolished the constructions put up in the counter claim schedule property. Therefore, the defendant No.8 and other aggrieved defendants in the original suit have lodged a complaint before the police in which FIR was registered as per Ex.D5 on 24.12.2013 pursuant to the complaint given as per Ex.D4. It is also admitted fact that 49 O.S.No.2221/2005 thereafter the police have filed charge-sheet against defendant No.18 for the demolition of construction put up by the defendant No.8 and others. Again matter did not end here. The defendant No.8 has filed petition under Order 39 Rule 2A CPC for the disobedience of the order of injunction. After a detailed trial, this court in Civil Miscellaneous Case No.546/2014 held that the plaintiffs have committed disobedience of the injunction order. Further in the said order, this court has directed for the cancellation of the sale deed dated 11.11.2013 executed in favour of defendant No.18 and also subsequent sale deed dated 20.07.2015 executed by defendant No.18 in favour of defendant No.19 produced at Ex.D.15. Though the orders passed in Misc.No.546/2014 are not produced in this case, this court by exercising its inherent power taken note of the orders passed in Misc.546/2014 as the same was originated from this suit. Under these circumstances, the question for consideration is whether a lawful possession was conveyed in favour of defendant Nos.18 or
19.
35. It is well settled that mere stray intermitent or casual possession cannot be considered as a settled possession. In this regard, the decision of the Hon'ble Supreme Court rendered in the case of Ramegowda (D) by LRs v/s M. Varadappa Naidu (D) 50 O.S.No.2221/2005 by Lrs and another (ILR 2006 Kar.1047), the Hon'ble Supreme Court has held as hereunder:-
"It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force..............................." .
merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re- instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can 51 O.S.No.2221/2005 mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession' :
i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession".
36. As stated above, in the present case, the disturbance committed by defendant No.18 in respect of the possession of the defendant No.8 was not only an act of trespass but also by disobeying the order of injunction. In view of the above legal 52 O.S.No.2221/2005 position, this court can hold that the defendant No.8 has lost the possession only if the plaintiffs or defendant No.18 is able to show that pursuant to taking over the possession, their possession has ripened to the status of settled possession. In other words, overnight taking possession by trespassing on the strength of a sale deed which is executed by violating the injunction order by illegally demolishing the constructions put up in the property cannot be considered as settled possession of the person who has committed this illegal act. This act of the defendant No.18 or plaintiffs can only be termed as an illegal attempt to take forcible possession of the counter claim schedule property from the hands of defendant No.8 by committing an offence of disobedience of the orders of the Court.
37. Needless to mention that no one can be permitted to take possession from the person who is in lawful possession by violating the injunction order and by confronting with the orders of the Court. In the decision of the Hon'ble Supreme Court rendered in the case of Surjit Singh and others v/s Harbans Singh and others (1995)6 SCC 50, the Hon'ble Supreme Court has held that an alienation made by violating the injunction order is required to be considered as non est in the eye of law. The Hon'ble Supreme Court has further observed as hereunder:- 53 O.S.No.2221/2005
"When the court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the court orders otherwise".
38. In view of the above legal position, the Court shall presume that the defendant No.8 continued in possession of the counter claim schedule property even till now on the strength of the temporary injunction passed by this Court. Further, in the decision of our Hon'ble High Court rendered in the case of M.N. Ramu v/s Saraswathamma (ILR 1991 KAR 1788), our Hon'ble High Court has held that restitution is the one of the primary intention in case of disobedience and therefore it is the duty of the court to restore the possession. In this regard, the Hon'ble High Court in para No.15 has observed as hereunder:-
"From what is stated hereinabove, it is clear that the existence of Order 39 Rule 2A will not be a bar for the exercise of power under Section 151 CPC to expeditiously enforce an order of temporary injunction whenever and wherever disobedience to the same is brought to the notice of the Court and the same is established. It is also clear that the very object for which Order 39 Rule 2A has been enacted will be fulfilled by a direction for the restoration of possession obtained in violation and/or in disobedience to an order of 54 O.S.No.2221/2005 temporary injunction. Such a course of action in respect of temporary injunction becomes all the more necessary, because temporary injunction is granted in aid of the final relief sought in the suit and also for the reasons that the same is subject to the result of the suit".
39. In the case of Delhi Development Authority v/s Skipper Construction Company Private Limited and another (1996)4 SCC 622, the Hon'ble Supreme Court has stressed the need of remedy and rectify the things done in violation of the orders of the court and held that the court is bound to exercise its powers to undo the wrong in the interest of justice. It has further observed that if a person is dispossessed by violating the injunction order, the court is required to direct the restoration of possession and thereby the object of Order 39 Rule 2A of CPC will be fulfilled only when such mandatory directions is given for restoration of the possession. In this regard, the Hon'ble Supreme Court in para No.17, 19 & 20 observed as hereunder:-
"17. The principle that a contemner ought not to be permitted to enjoy and/or keep the fruits of his contempt is well settled. In Mohd. Idris v. Rustam Jehangir Babuji this Court held clearly that undergoing the punishment for contempt does not mean that the court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders. ...........55 O.S.No.2221/2005
19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd v/s S. Suppiah and Sujit Pal v/s Prabir Kumar Sun. In Century Flour Mills Ltd, it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. ...................
20. In Sujit Pal, a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law".
40. In the case of Baranagore Jute Factory PLC Mazdoor Sangh(BMS) etc., v/s Buranagore Jute Factory PLC, etc, (2017)4 SCR 700, the Hon'ble Supreme Court reiterated the 56 O.S.No.2221/2005 above position of law and held that the court has a duty to issue appropriate directions for remedy or rectify the things done in violation of the orders and therefore the court is required to take restitutive measures. This position of law is reiterated by the Hon'ble Supreme Court in the recent decision of the Hon'ble Supreme Court in the case of Amit Kumar Das v/s Shrimati Hutheesingh Tagore (2024 SCC OnLine SC 83).
41. In view of the above legal position, in Misc.No.546/2014, this Court has specifically ordered for restitution and observed that the possession of the counter claim schedule property shall continue with defendant No.8. Therefore, by virtue of Section 52 of Transfer of Property Act and also due to the act of disobedience committed by the plaintiffs and also defendant No.18, it cannot be said that the defendant No.8 has lost the possession. Forcible taking of possession is only an attempt to take the actual physical possession wherein the legal possession remained with the defendant No.8. In a case of this nature, if any other interpretation is given, it would be travesty of justice and a great injustice to the party who has approached the court and obtained an order of injunction. Therefore, the possession if any taken by the defendant No.18 is only flimsy in character, stray and casual in nature which has just been committed and therefore, the law presumes that the defendant 57 O.S.No.2221/2005 No.8 has continued in legal and actual possession of the counterclaim schedule property. In view of these reasons, the court holds that the defendant No.8 is still in possession of the counter claim schedule property. Accordingly, issue No.5 is answered in the affirmative.
42 Issue No.6:- The defendant No.8 has alleged interference by the plaintiffs. This allegation is proved by the conduct of the plaintiffs in selling the property and colluding with defendant No.18 to demolish the illegal constructions put up in the counter claim schedule property which do not require further proof and the same is already explained in the previous issues. Therefore, court holds that the defendant No.8 has proved the interference of the plaintiffs over the counter claim schedule property. Accordingly, issue No.6 is answered in the affirmative
43. Issue No.7 & 8:- In view of the answers given to the above issues, in the opinion of the court it is necessary to grant a relief to the defendant No.8. Though during the pendency of the case the plaintiffs have executed Ex.D14 sale deed dated 11.11.2013 in favour of defendant No.18 and again the defendant No.18 has executed sale deed dated 20.07.2015 as per Ex.D15 in favour of defendant No.19, in the Misc.Case No.546/2014 originated from this suit, the court has declared those sale deeds are null and void and cancelled those sale deeds. The court is 58 O.S.No.2221/2005 conscious of the fact that the proceedings held in Misc.Case No.546/2014 is not brought into this file. But, in case of this nature, since the said proceedings are originated from this suit for the violation of injunction order granted by this court, the court has inherent power to consider the orders passed in the Misc.Case filed by defendant No.8 against the plaintiffs in Misc.Case No.546/2014. Taking note of the circumstances and by considering the answer given to issue No.5 with regard to the possession of the defendant No.8, the defendant No.8 is entitled for the relief. The defendant No.8 is a woman and senior citizen. She has fought the litigation for more than 20 years. Under these circumstances, it is not proper to drive her to file one more litigation to seek declaratory reliefs pertaining to the sale deeds executed during the pedency of the case by violating the injunction order and for possession or other comprehensive reliefs pursuant to the developments taken place during the pendency of the suit. It is true that the relief of declaration and injunction are discretionary and equitable. But, no grounds are made out to reject the reliefs sought by defendant No.8. Consequently, issue No.7 is answered in the affirmative and the following order is passed:-
59 O.S.No.2221/2005
ORDER Counter claim filed by defendant No.8 is decreed with costs.
It is declared that defendant No.8 is the
absolute owner of counterclaim schedule
property.
Further, the plaintiffs, their men, the
persons who have obtained sale deed in respect of the counter claim schedule property during the pendency of the suit or any other persons claiming on behalf of them are restrained from interfering with the possession of defendant No.8 over the counterclaim schedule property.
Draw decree accordingly.
(Judgment prepared through Speech to Text App with the assistance of Senior Sheristedar, carried out corrections, print out taken and then pronounced in the Open Court on this the 15th day of July, 2025) (Vijaya Kumar Rai) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiffs:
PW.1 : Gopal G List of documents exhibited for plaintiffs Ex.P2 Genealogy Ex.P3 Cast certificate Ex.P4 Income certificate Ex.P5 Death certificate of Gurumurthy Bhovi Ex.P6 Certified copy of the order passed by the Asst.Commissioner dtd.04.05.2006 Ex.P7 Certified copy of the order passed by the Dy.Commissioner 60 O.S.No.2221/2005 dtd.07.07.2015 Ex.P8 Mutation order Ex.P9 to RTCs P14 Ex.P15 Certified copy of the written statement filed in OS 9274/2018 Ex.P16 Certified copy of the orders passed on I.A.No.1 and 2 in OS 9274/2018 Ex.P17 Certified copy of the charge sheet Ex.P18 Certified copy of the judgment passed in OS 6120/2013 Ex.P19 Certified copy of the judgment passed in OS 6122/2013 List of witnesses examined for the defendants:
D.W1 : I.V. Pillaiah List of documents exhibited for defendants:
Ex.D1 Certified copy of the GPA executed by D-8 Ex.D2 Certified copy of the sale deed dtd.18.03.1998 Ex.D3 RTC Ex.D4 Copy of the complaint Ex.D5 Certified copy of the FIR Ex.D6 RTC Ex.D7 Tax paid receipt Ex.D8 Special power of attorney Ex.D9 GPA Ex.D10 Affidavits &D11 Ex.D12 Mutation order Ex.D13 RTC Ex.D14 Certified copy of the sale deed dtd:11.11.2013 Ex.D15 Certified copy of the sale deed dtd:20.07.2015 Ex.D16 Endorsement issued by Tahasildar dtd:05.07.2014 Ex.D17 RTCs to 20 Ex.D21 MR orders & D22 61 O.S.No.2221/2005 Ex.D14( Signatures of PW1 in Ex.D14 a) (b) Ex.D23 Copy of death certificate Ex.D24 Copy of order passed by Hon'ble High Court Ex.D25 Written statement filed in OS 9274/2018 Ex.D26 Petition u/s 4 of PTCL Act Ex.D27 Certified copy of order passed by the A.C. List of witnesses examined by the Court:- Nil List of documents marked by the Court:- Ex.C1 : Memo Ex.C1(a): Signature of P.W.1 Ex.C2 : Signature of P.W.1 in verifying affidavit Ex.C3 : Original plaint Ex.C4 to 12: Signatures of P.W.1 X Addl. City Civil & Sessions Judge, Bangalore.