Bangalore District Court
Smt.Lakshmamma vs Sri.Y.Hanumanthappa on 16 June, 2021
1 O.S.7603/2013
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 16 th DAY OF JUNE, 2021.
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu,
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.7603/2013
PLAINTIFF/S: 1. Smt.Lakshmamma,
W/o Late Chinnappa,
Aged about 58 years,
2. Sri.C.Satish Kumar @ Kumar,
S/o Late Chinnappa,
Aged about 33 years,
3. Sri.C.Raghavendra
S/o Late Chinnappa,
Aged about 31 years,
All are residing at
Yellakunte village Dakalay,
Mangamanapalya village,
Begur hobli,
Bangalore south taluk,
2 O.S.7603/2013
Bangalore - 560 068.
(By Sri.K.P.Chandrashekar Reddy,
Sri.C.Nagaraj, Advocates)
Vs.
DEFENDANT/S: 1. Sri.Y.Hanumanthappa,
S/o Late Yarappa @ Muniyappa,
Aged about 67 years,
2. Sri.Muniraja,
S/oY.Hanumanthappa,
Aged about 38 years,
Both are residing at
Venkateshwara temple road,
Mangamanapalya village,
Begur hobli,
Bangalore south taluk,
Bangalore - 560 068.
(By Sri.K.Suryaprakash Rao,
Advocate)
* * * * *
Date of institution of suit : 19.10.2013
Nature of suit : Declaration &
Injunction &
possession
3 O.S.7603/2013
Date of commencement
of recording of evidence : 06.12.2018
Date on which the judgment
was pronounced : 16.06.2021
Duration of the suit :Year/s Month/s Day/s
07 05 28
JUDGMENT
1. The plaintiffs have filed this suit against the defendants praying to declare that the plaintiffs are the absolute owners of the suit schedule property by way of Succession and to declare that the General Power of Attorney dated 11.11.1998 executed by the 2 nd and 3 rd plaintiff who were minors as on the date of execution of General Power of Attorney in favour of 1 st defendant as null and void and to declare that the General Power of Attorney dated 11.11.1998 executed by Sri.Chinnappa, the husband of plaintiff No.1 and father 4 O.S.7603/2013 of plaintiff No. 2 and 3, dies along with the death of Chinnappa from 30.6.2007 and any transaction taken place thereafter is not binding on the plaintiffs, praying to cancel the sale deed dated 16.4.2013 executed by the 1 st defendant in favour of his son 2 nd defendant by declaring that the same is not binding on the plaintiffs since one of the executor of General Power of Attorney Chinnappa has expired on 30.6.2007 thereafter the said GPA dated 11.11.1998 has been ceased from 30.6.2007, to direct the defendants to handover the possession of the suit schedule property to the plaintiffs and prayed to grant an order of mandatory injunction by directing the defendants to demolish the constructed building put up by the defendants and to handover the vacant possession of the property to the plaintiffs. The plaintiffs also 5 O.S.7603/2013 prayed to pass an order for the relief of permanent injunction to restrain the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
2. The suit schedule property is the property bearing Khatha No. 74 (old K.K.No.34) present BBMP Khatha No. 175/170/128 situated at Mangammanapalya village, Yellukunte Dhakle, Begur hobli, Bangalore south taluk, Bangalore, measuring east to west 23 feet and north to south 12 feet and adjoining east to west 12 feet and north to south 12 feet, totally measuring 420 square feet and bouded as follows:
East by Hanumanthappa house, West by Hanumakka's house, North by Nanjundappa's property and road / passage 6 O.S.7603/2013 South by Narayanappa's property.
3. The summary of the plaint averments is as under:
Chinnappa is the husband of 1 st plaintiff and father of plaintiff No. 2 and 3. Chinnappa has acquried the suit schedule property by way of partition. The 1 st defendant is the brother of late Chinnappa. The 1 st plaintiff's father-in-law, 2 nd and 3 rd plaintiff's grand father Yerappa has purchased the property bearing No. 34 (K.K.No.34) Mangammanapalya village, Yellukunte Dhakle, Begur hobli, Bangalore south taluk, under sale deed dated 27.7.1953.
4. The 1 st plaintiff's husband along with 2 nd and 3 rd plaintiffs have executed an unregistered General Power of Attorney in favour of the 1 st defendant on 7 O.S.7603/2013 11.11.1998. During the time the 2 nd and 3 rd plaintiffs have executed an unregistered General Power of Attorney in favour of the 1 st defendant on 11.11.1998 the 2 nd and 3 rd plaintiffs were still minors. The recitals of the age of them is clearly stated in the said General Power of Attorney dated 11.11.1998. Chinnappa died on 30.6.2007. The fact of the death are well known and well within the knowledge of the defendants. It is well settled principle of law that if the executor of the General Power of Attorney dies then automatically General Power of Attorney also dies / vanishes along with death. The plaintiffs have requested the 1 st defendant to return the General Power of Attorney as executor is no more. But the 1 st defendant refused to handover the same. Thereafter the plaintiffs have cancelled / revoked the said General Power of Attorney 8 O.S.7603/2013 dated 11.11.1998 on 3.4.2013. Thereafter the plaintiffs have sent legal notice on 3.4.2013 through ordinary post and RPAD to the 1 st defendant and the same was served on the 1 st defendant. After receipt of the said notice the 1 st defendant has sent untenable reply through his advocate on 10.4.2013. The defendant No. 1 and his family members to deprive the rights of the innocent plaintiffs and for the reasons best known to them even after the cancellation of the said General Power of Attorney the defendant No. 1 was executed registered sale deed dated 16.4.2013 in favour of his son 2 nd defendant. The said sale deed executed by the 1 st defendant in favour of his son 2 nd defendant is not binding on the plaintiffs and the same is liable to cancelled and to be declared as null and void. The plaintiffs have obtained the documents such as copy of 9 O.S.7603/2013 sale deed and annexed documents such as copy of affidavit, form No. 1, tax paid receipt, Khatha certificate and tax extract from the Sub-Registrar office, Bommanahalli, Bangalore. Even though the 1 st defendant has no right to pay the tax in his name for the reasons best known to him has paid the tax in his name and has also got done the Khatha certificate and Khatha extract in his name even before the transfer of title / execution of sale deed in favour of the 2 nd defendant. The 1 st defendant has even without authority / title has got Khatha in his favour vide Khatha No. 74, BBMP Khatha No. 175/170/128. Hence the plaintiffs have filed this suit for declaration of ownership and declare that General Power of Attorney is null and void and to declare and to cancel the sale deed and for permanent injunction and 10 O.S.7603/2013 recovery of possession. During the pendency of this suit the plaintiffs have carried out amendment in the plaint and contended that after filing this suit the defendants with a malafide intention has constructed the building in the suit schedule property. Hence same has to be demolished. Thus the plaintiffs have sought for mandatory injunction to direct the defendants to demolish the constructed building put up by the defendants and to handover the vacant possession of the suit schedule property to the plaintiffs. Hence on these grounds the plaintiffs prayed to decree this suit.
5. The defendants entered appearance by engaging their counsel. Despite of opportunity given to them the defendants were not filed their written statement. Hence as per order dated 16.1.2014 the written statement of the defendants were taken as not filed and 11 O.S.7603/2013 case was posted for plaintiff evidence on 6.2.2014. On 6.2.2014 the defendant No. 1 has filed I.A. and filed written statement and prayed to condone the delay in filing the written statement. This court was pleased to allow the I.A. with cost of Rs.300/- and written statement of defendant No. 1 taken on record. In this suit the plaintiff carried out amendment in the plaint for which the 1 st defendant has filed his additional written statement on 27.8.2018.
6. The written statement and additional written statement filed by the defendant No. 1 briefly stated as follows:
The suit of the plaintiffs is not maintainable either in law or on facts. The suit of the plaintiffs is barred by law of limitation. The plaintiff No. 2 and 3 are 12 O.S.7603/2013 now aged about 33 years and 31 years. The relief sought for by the plaintiff No. 2 and 3 to declare the General Power of Attorney dated 11.11.1998 executed by them as null and void, who were allegedly minor as on the date of execution of General Power of Attorney in favour of the 1 st defendant, is barred by law of Limitation. The plaintiff No. 2 and 3 were required to seek such a relief within three years from the date of the plaintiff No. 2 and 3 attained the age of majority.
The 1 st defendant is in possession and enjoyment of the suit schedule property along with his son, i.e., 2 nd defendant since long time about more than 20 years.
The plaintiffs have lost the possession of the suit schedule property long back and therefore they are not entitled to seek the possession of the suit schedule property at this point of time. The relationship 13 O.S.7603/2013 between the plaintiffs and defendants is not in dispute.
The 1 st defendant is none other than the younger brother of late Chinnappa. It is admitted that Yerappa has purchased the property bearing No. 34 Mangammanapalya village of Yellukunte Dhakle, Begur hobli, Bangalore south taluk. Late Chinnappa who is none other than the brother of this defendant offered the sale of the suit schedule property to this defendant and collected from this defendant a sum of Rs.40,000/-
on various dates during his life time. Thus the suit schedule property came to the possession and enjoyment of this defendant during the life time of Chinnappa more than about 20 years back. Earlier Chinnappa and this defendant were in joint possession and enjoyment of the suit schedule property. The plaintiffs have suppressed the real facts and have filed 14 O.S.7603/2013 this suit with ulterior motive in order to create hindrance to the possession and enjoyment of the suit schedule property by this defendant and his son and to extract money from this defendant. It is admitted that Chinnappa expired on 30.6.2007. The plaintiffs are not entitled to cancel the General Power of Attorney when late Chinnappa has received consideration amount in respect of the suit schedule property. The averments made by the plaintiffs that they have sent legal notice to the 1 st defendant is admitted. This defendant has sent a valid and tenable reply to the said legal notice.
This defendant had the authority to executed the sale deed and this defendant has execute the sale deed in favour of his son in respect of the suit schedule property. The suit schedule property was purchased by the father of this defendant. Upon the death of the 15 O.S.7603/2013 father of this defendant the suit schedule property came to the possession and enjoyment of this defendant and his brother late Chinnappa. This defendant had also paid substantial amounts to his brother late Chinnappa and therefore the plaintiffs are not entitled for any share in the suit schedule property. The plaintiffs are now required to confirm the sale deed executed by the 1 st defendant in favour of the 2 nd defendant. This defendant reserves his right to seek appropriate remedies against the plaintiffs in order to enforce his rights in the suit schedule property. There is no cause of action to file this suit and the alleged cause of action is false and baseless. The relief sought by the plaintiffs are all time barred. The plaintiffs are estopped from claiming any right in the suit schedule property which has come to this defendant and this 16 O.S.7603/2013 defendant has already executed the sale deed in favour of his son, i.e., the 2 nd defendant. The defendants have constructed a new house in place of the original structure by spending huge sum of money. The Khatha of the suit schedule property stands in the name of this defendant. This defendant has obtained electricity connection and water connection from BWSSB to the suit schedule property. Hence on these grounds the 1 st defendant prayed for dismissal of the suit.
7. The 1 st defendant in his additional written statement has taken contention that the contention of the plaintiffs that the defendants have constructed the building in the suit schedule property after filing this suit is not correct. The defendant No. 1 in his written statement itself has stated that the defendants have 17 O.S.7603/2013 constructed a new house in the place of original structure by spending huge sum of money. The plaintiffs are seeking the demolition of the house that was constructed long back. Therefore the prayer now introduced in amendment para 6(a), 17(a) in the plaint is not maintainable. The defendants have not constructed or made any constructions in the suit schedule property after the filing of this suit. Hence on these grounds the 1 st defendant prayed for dismissal of the suit.
8. Based on the pleadings of the parties the following issues have been framed:
(1)Whether the plaintiffs proves that they are the absolute owners of the suit schedule property ?18 O.S.7603/2013
(2)Whether the plaintiffs are entitled for the possession of the suit schedule property ?
(3)Whether the plaintiffs prove that the General Power of Attorney dated 11.11.1998 is null and void and not binding upon them ?
(4)Whether the plaintiffs prove that the sale deed dated 16.4.2013 is null and void and not binding upon them ?
(5)Whether the plaintiffs are entitled for the relief of permanent injunction ?
(6)Whether the suit of the plaintiffs is barred by limitation ?
(7)Whether the plaintiffs are entitled for the reliefs as sought by them ?
(8)What order or decree ?
19 O.S.7603/2013
Additional Issue:
(1) Whether the plaintiffs are
entitled for the relief of mandatory
injunction ?
9. In order to prove the case of the plaintiffs, the plaintiff No. 2 has examined as PW1 and the documents Ex.P1 to Ex.P15 are marked through him. During the course of cross-examination of DW1 two documents are marked as Ex.P16 and Ex.P17. Thus on the side of the plaintiffs documents Ex.P1 to Ex.P17 are marked. After closure of the evidence on the side of the plaintiffs, the 1 st defendant examined himself as DW1. No documents are marked on the side of the defendant.
10. I have heard the arguments on the side of the learned counsel for the plaintiffs and the learned 20 O.S.7603/2013 counsel for the defendants. The learned counsel for the defendants also filed written arguments.
11. My findings to the above issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Issue No.4 : In the Affirmative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Issue No.7 : Partly in the Affirmative
Addl. Issue No.1 : In the Negative
Issue No.8 : As per the final order
for the following:
REASONS
12. Issue No.1, 3 and 4: These issues are taken up
together for discussion in order to avoid repetition of facts and evidence.
21 O.S.7603/2013
13. The plaintiffs have filed this suit against the defendants praying to declare that the plaintiffs are the absolute owners of the suit schedule property by way of succession after the death of Sri.Chinnappa and to declare that the General Power of Attorney dated 11.11.1998 as null and void and not binding on the plaintiffs and also prayed to cancel the sale deed dated 16.4.2013 executed by the 1 st defendant in favour of his son 2 nd defendant as the same is null and void and not binding on the plaintiffs and also prayed to issue mandatory injunction to direct the defendants to demolish the building put up by the defendants and to direct the defendants to handover the vacant possession of the suit schedule property to the plaintiffs. The plaintiffs also prayed to pass an order of permanent injunction to restrain the defendants from interfering 22 O.S.7603/2013 with the plaintiffs peaceful possession and enjoyment of the suit schedule property. Prior to proceed further it is necessary to note some undisputed facts in this suit. So far as the relationship between the parties is concerned there is no dispute. 1 St plaintiff Lakshmma and deceased Chinnappa are the parents of plaintiff No. 2 and 3. The said late Chinnappa is the brother of defendant No. 1. Defendant No. 2 is the son of defendant No. 1. It is undisputed fact that Chinnappa died on 30.6.2007. It is undisputed fact that Yerappa who is the father of defendant No. 1 and late Chinnappa has purchased the suit schedule property bearing No. 34 (K.K.No.34) under registered sale deed dated 27.7.1953. It is not in dispute that during the life time of Chinnappa he along with his wife the 1 st plaintiff and his children 2 nd and 3 rd plaintiffs have 23 O.S.7603/2013 executed an unregistered General Power of Attorney dated 11.11.1998 in respect of suit schedule property in favour of 1 st defendant Y.Hanumanthappa. Keeping in mind these undisputed facts now it is necessary to narrate the contention taken by the plaintiffs and defendants of this suit. It is the contention of the plaintiffs is that the 1 st plaintiff's husband and 2 nd and 3 rd plaintiff's father Chinnappa has acquired the suit schedule property by way of partition. It is the contention of the plaintiffs is that as on the date of exetuion of General Power of Attorney in favour of the 1 st defendant the 2 nd and 3 rd plaintiffs were still minors, hence the General Power of Attorney dated 11.11.1998 is void document so as to plaintiff No. 2 and 3 is concerned. It is further contention of the plaintiffs is that Chinnappa expired on 30.6.2007. Hence on the 24 O.S.7603/2013 death of Chinnappa General Power of Attorney dated 11.11.1998 also dies / vanishes. It is further contention of the plaintiffs is that they have cancelled / revoked General Power of Attorney dated 11.11.1998 on 3.4.2013 and they have also sent legal notice dated 3.4.2013 to the 1 st defendant stating that the General Power of Attorney dated 11.11.1998 has cancelled / revoked. The said notice was duly served on the 1 st defendant but the 1 st defendant has sent untenable reply through his advocate on 10.4.2013. It is the contention of the plaintiffs is that even after the cancellation of the General Power of Attorney dated 11.11.1998 the 1 st defendant has executed registered sale deed dated 16.4.2003 in favour of his son 2 nd defendant. Hence this sale deed is null and void and not binding on the plaintiffs. Hence on these grounds 25 O.S.7603/2013 the plaintiffs sought for declaration of their ownership over the suit schedule property and to declare that the General Power of Attorney dated 11.11.1998 to be declared as null and void and not binding on plaintiffs and to declare that the sale deed dated 16.4.2013 executed by 1 st defendant in favour of 2 nd defendant is null and void and not binding on the plaintiffs.
14. On the other hand the 1 st defendant has taken contention that his brother Chinnappa offered the sale of suit schedule property to him and collected sum of Rs.40,000/- from this defendant on various dates during his life time. Thus the suit schedule property came in exclusive possession of this defendant. It is the contention of the 1 st defendant is that the suit schedule property was purchased by his father. Upon the death of his father the suit schedule property came in 26 O.S.7603/2013 possession and enjoyment of this defendant and his brother late Chinnappa. This defendant paid the substantial amount to his brother Chinnappa hence the suit schedule property came to the possession and enjoyment of this defendant during the life time of late Chinnappa more than about 20 years back. It is the contention of the 1 st defendant is that the suit of plaintiffs is barred by Law of Limitation as the plaintiff No. 2 and 3 have not challenged the General Power of Attorney dated 11.11.1998 within three years from the date of plaintiff No. 2 and 3 attained the age of majority. The suit of plaintiffs is also barred by period of Limitation as they have lost their possession of the suit schedule property long back and they have not filed the suit within 12 years. It is the contention of the 1 st defendant is that he has empowered to 27 O.S.7603/2013 execute the sale deed in favour of his son 2 nd defendant. The plaintiffs are now required to confirm the sale deed executed by the 1 st defendant in favour of the 2 nd defendant.
15. Keeping in mind the rival contentions taken by the parties now under these issues I will discuss regarding the General Power of Attorney dated 11.11.1998 and subsequent events and regarding validity of the General Power of Attorney and sale deed and whether the plaintiffs prove they are the absolute owners of the suit schedule property. With regarding to the point of Limitation I will discuss about the same while answering issue No. 6.
16. In this suit on the side of the plaintiffs plaintiff No. 2 examined himself as PW1 and the documents Ex.P1 to Ex.P15 are marked through him. The 28 O.S.7603/2013 documents Ex.P16 and Ex.P17 are marked during the course of cross-examination of DW1. PW1 in his examination-in-chief affidavit has reiterated the plaint averments. Since examination-in-chief of PW1 is the replica of the plaint averments it need not be reproduced once again except mentioning the gist of the same. PW1 has deposed that his father Chinnappa has acquired the suit schedule property by way of partition. He states that the suit schedule property was originally purchased by his grand father Yerappa under registered sale deed dated 27.7.1953. He has deposed that his father Chinnappa and they have executed an unregistered General Power of Attorney in favour of 1 st defendant on 11.11.1998. During the said period he and the 3 rd plaintiff were still minors. In the recitals of GPA the age is clearly stated. He has 29 O.S.7603/2013 deposed that his father Sri.Chinnappa died on 30.6.2007. He states that after the death of his father the GPA automatically ceases. He has deposed that they have requested the 1 st defendant to return the GPA as executor is no more. But the 1 st defendant refused to handover the same. Thereafter on 3.4.2013 the plaintiffs have cancelled / revoked the said GPA dated 11.11.1998. He states that thereafter they have sent legal notice on 3.4.2013 to the 1 st defendant through ordinary post and through RPAD. The said notice was duly served upon the 1 st defendant. Thereafter the 1 st defendant had sent untenable reply dated 10.4.2013 through his advocate. He has deposed that after cancellation of the GPA, in order to deprive the plaintiffs the 1 st defendant has executed registered sale deed dated 16.4.2013 in favour of his son 2 nd 30 O.S.7603/2013 defendant. He states that the sale deed dated 16.4.2013 executed by the 1 st defendant in favour of the 2 nd defendant is null and void and not binding on the plaintiffs. The document Ex.P1 to Ex.P15 are marked through PW1. Ex.P1 is the affidavit of the plaintiff No.2 with regarding to genealogical family tree of the plaintiffs and defendant. Ex.P2 is the certified copy of the sale deed dated 27.7.1953 to show that the suit schedule property was originally purchased by Sri.Yerappa, grand father of plaintiff No. 2 and 3 and father of defendant No. 1. Ex.P3 is the certified copy of GPA dated 11.11.1998. The plaintiffs sought to declare this GPA as null and void and not binding upon them. Ex.P4 is the death certificate of Chinnappa who is the husband of plaintiff No. 1 and father of plaintiff No. 2 and 3 to show that he died 31 O.S.7603/2013 on 30.6.2007. The 1 st defendant in his written statement has admitted the date of death of Chinnappa. Thus there is no dispute regarding the document Ex.P4 death certificate of Chinnappa. Ex.P5 is the Deed of Revocation / Cancellation of GPA dated 3.4.2013 for having cancelled the GPA dated 11.11.1998 by the plaintiff No. 1 to 3. Even though the plaintiffs in their plaint in para No. 7 have clearly averred regarding this document Deed of Revocation / Cancellation of GPA. The defendant No. 1 neither in his written statement nor in his additional written statement has denied para No. 7 of the plaint by denying this document Deed of Revocation / Cancellation of General Power of Attorney. The document Ex.P6 is the copy of legal notice dated 3.4.2013 sent by the plaintiffs through their counsel to 32 O.S.7603/2013 the 1 st defendant for having intimation to the 1 st defendant regarding Revocation / Cancellation of GPA dated 11.11.1998 and intimating him not to deal / transact with respect to the property. Ex.P7 is the postal acknowledgment for having served notice to the 1 st defendant. Ex.P8 is the reply notice dated 10.4.2013 sent by the 1 st defendant to the counsel for the plaintiffs. It is pertinent to note that the 1 st defendant in his written statement admitted the receipt of notice sent by the plaintiffs. He contended that he has sent a valid and tenable reply to the said legal notice. Thus there is no dispute regarding these documents Ex.P6 legal notice dated 3.4.2013 issued by the plaintiffs to the 1 st defendant and the document Ex.P8 reply notice dated 10.4.2013 sent by the 1 st defendant to the plaintiffs. Ex.P9 is the certified copy 33 O.S.7603/2013 of the sale deed dated 16.4.2013 executed by the 1 st defendant in favour of the 2 nd defendant with respect to the suit schedule property. The plaintiffs have prayed to declare this sale deed dated 16.4.2013 as null and void and not binding upon them. I will discuss about the documents Ex.P3 General Power of Attorney dated 11.11.98, Ex.P5 Deed of Revocation / Cancellation of General Power of Attorney and Ex.P9 sale deed dated 16.4.2013 little later part of this judgment. Ex.P10 is the copy of the affidavit filed under RTI in order to obtain documents. Ex.P11 is the copy particulars of suit property obtained by the plaintiffs under RTI. Ex.P12 is the copy of property tax receipt obtained under RTI. Ex.P13 is the copy of khatha certificate of the suit schedule property. Ex.P14 is the copy of khatha extract. These documents 34 O.S.7603/2013 Ex.P10 to 14 are all obtained by the plaintiffs under RTI. All these documents Ex.P1 0 to Ex.P14 are all marked subject to objection on the side of the learned counsel for the defendants. But during the course of arguments the learned counsel for the defendants has not made any submission why he has raised the objection while marking these documents. Since these documents are all public documents the objection raised by the learned counsel for the defendant while marking the documents is not sustainable. These documents are all admissible in evidence. The document Ex.P15 is the paper publication made in Sanjevani daily news paper on 4.4.2013 informing the general public about cancellation of GPA dated 11.11.1998 by the plaintiffs on 3.4.2013. Two more documents are marked on the side of the plaintiffs 35 O.S.7603/2013 during the course of cross-examination of DW1. Document Ex.P16 is the certified copy of the gift deed executed by the 1 st defendant in favour of his son 2 nd defendant with respect to the property bearing No. 65/3, BBMP khatha No. 182/177/130 situated at Mangammanapalya village, Yellugunte dhakle, Begur hobli, Bangalore south taluk measuring east to west 80 feet, north to south 30 feet totally measuring 2400 square feet. Since DW1 has admitted about the execution of gift deed dated 16.4.2013 in favour of his son 2 nd defendant this document Ex.P16 is marked through DW1 in his cross-examination. But when the learned counsel for the plaintiffs confronted the document Ex.P17 to DW1 he has denied the signature found on this document. This document Ex.P17 36 O.S.7603/2013 marked through DW1 in order to show that this document was confronted to DW1.
17. During the course of cross-examination of PW1 by the learned counsel for the defendants he has admitted the suggestion that his father and the 1 st defendant are the brothers. PW1 has deposed that he was signed on the GPA dated 11.11.1998 as his father asked him to sign on the same. PW1 has admitted the suggestion that in their plaint they have not stated anything about the possession of the suit property and construction made therein. He has denied the suggestion that in the year 1998 the 1 st defendant after taking the possession of the suit schedule property he demolished the old structure and constructed new house in the suit schedule property. PW1 has admitted the suggestion that at the time of execution of the document Ex.P9 37 O.S.7603/2013 sale deed his mother was alive and his mother is still alive. He has denied the suggestion that based on the General Power of Attorney dated 11.11.1998 the 1 st defendant had every authority to execute the document Ex.P9 sale deed in favour of the 2 nd defendant. PW1 has denied the suggestion that they have executed the General Power of Attorney in favour of the 1 st defendant after receiving the full sale consideration amount of the suit schedule property. PW1 has denied the suggestion that his parents have received sale consideration from the 1 st defendant and thereafter they have executed General Power of Attorney in favour of the 1 st defendant. He has denied the suggestion that he has suppressed regarding his age by not producing any document regarding his age. He has denied the suggestion that his father was received Rs.40,000/- 38 O.S.7603/2013 from the 1 st defendant. He has admitted the suggestion that the suit schedule property was purchased by his grand father. He has admitted the suggestion that the suit schedule property is the ancestral property of the 2 nd defendant. He has denied the suggestion that since the suit schedule property is the ancestral property of the 2 nd defendant and as the 1 st defendant purchased the suit schedule property by giving sale consideration to his father the plaintiffs have no right over the suit schedule property.
18. On the other hand the 1 st defendant who has examined as DW1 in his examination-in-chief has reiterated the written statement contentions. DW1 has deposed that his father had purchased a property bearing No. 34. He states that his brother Chinnappa died on 30.6.2007 leaving behind him, his legal heirs 39 O.S.7603/2013 plaintiff No. 1 to 3. He states that after the death of his father late Yerappa suit schedule property came into his possession and the possession of his brother Chinnappa and they were in possession and enjoyment of the suit schedule property. He has deposed that he and his brother late Chinnappa were in joint possession and enjoyment of the suit schedule property after the death of their father. He states that his brother late Chinnappa during his life time offered to sell his share of the suit schedule property to him and accordingly Sri.Chinnappa has received a sum of Rs.40,000/- on various dates during his life time. He stated that late Chinnappa and plaintiffs had executed a General Power of Attorney dated 11.11.1998 in his favour and delivered possession of the suit schedule property to him on the date of execution of General Power of 40 O.S.7603/2013 Attorney hence he and his son were in possession and enjoyment of the suit schedule property since 20 years. The plaintiffs have lost their possession of the suit schedule property long back and therefore they are not entitled to seek the possession of the suit schedule property from him. He has deposed that on the strength of General Power of Attorney executed by late Chinnappa and the plaintiffs he had executed a sale deed in favour of his son the 2 nd defendant, pertaining to the suit schedule property and delivered the possession of the suit schedule property to him on the date of registration of the sale deed. Now the 2 nd defendant is in possession and enjoyment of the suit schedule property. DW1 has deposed that during the life time of his brother Chinnappa he had received substantial amount from him pertaining to the schedule 41 O.S.7603/2013 property. He states that he had constructed a new house long back in place of the original structure by spending huge sum of money. The khatha and other revenue documents pertaining to the suit schedule property standing in his name. He also had obtained the electricity and water connection to the suit schedule property. He states that the suit of plaintiffs is barred by law of limitation. No documents are marked on the side of the defendant.
19. During the course of cross-examination of DW1 he has admitted the suggestion that the plaintiff No. 1 is the wife and 2 and 3 are the sons of his brother. He has admitted the suggestion that the suit schedule property was purchased by his father in the year 1953. DW1 has deposed that during the life time of his brother Chinnappa there was a oral partition and in 42 O.S.7603/2013 that partition the properties were divided into three shares. He has denied the suggestion that there is no such document to show that there was a oral partition and division of 3 shares in the properties. He has deposed that there is no documents to show that he has paid Rs.40,000/- to his brother Chinnappa. DW1 has deposed that as on the date of execution of the document Ex.P3 on 11.11.1998 plaintiff No. 3 Raghavendra was aged 17 years and plaintiff No. 2 Sathisha was aged 18 years. He has admitted the suggestion that in Ex.P3 GPA the property No. was not mentioned. He has deposed that in Ex.P3 General Power of Attorney the property belongs to him and his brother Chinnappa are mentioned. He states that immediately after he purchased the property from Chinnappa he had constructed the building in that 43 O.S.7603/2013 property. He pleaded his unawareness that the plaintiffs on 3.4.2013 cancelled the General Power of Attorney and issued notice as per Ex.P6. He has denied the suggestion that after the plaintiffs have cancelled the General Power of Attorney in order to deprive the plaintiffs he has executed the fake sale deed dated 16.4.2013 in favour of his son 2 nd defendant. When a question asked him why he has executed the sale deed instead of executing the gift deed in favour of his son then he answered he apprehended that somebody may claim the right over the property hence he has executed the sale deed in favour of his son. DW1 has deposed that his son paid sale consideration amount of Rs.4,20,000/- to him. He states that the 2 nd defendant has never asked him to sell the suit schedule property to him. He has denied 44 O.S.7603/2013 the suggestion that in order to defraud the plaintiffs he has created false sale deed in the name of his son. He has denied the suggestion that by creating bogus khatha in respect of the suit schedule property in his name he has created bogus sale deed in favour of his son. He states that in the suit schedule building he and his son are residing. He has denied the suggestion that he has constructed the building in the suit schedule property recently. He has denied the suggestion that he is falsely claiming that he has constructed the building in the suit schedule property long back.
20. Now the question before the court is whether the General Power of Attorney dated 11.11.1998 is null and void and not binding upon the plaintiffs and whether the sale deed dated 16.4.2013 is null and void and not 45 O.S.7603/2013 binding on the plaintiffs. According to the DW1 on the strength of General Power of Attorney executed by late Chinnappa and the plaintiffs herein, he had executed a sale deed dated 16.4.2013 in favour of his son, 2 nd defendant in respect of the suit schedule property. The plaintiffs have claimed that the General Power of Attorney dated 11.11.1998 had became invalid after the death of Chinnappa on 30.6.2007 and after the plaintiffs have cancelled / revoked the same on 3.4.2013, hence thereafter the said General Power of Attorney dated 11.11.1998 is invalid. Thus first and foremost point to be considered is whether the 1 st defendant had authority to execute the sale deed in favour of his son based on the General Power of Attorney dated 11.11.1998. It is not in dispute that the document Ex.P3 General Power of Attorney dated 46 O.S.7603/2013 11.11.1998 was executed by Chinnappa and his wife and children i.e., the plaintiffs. The plaintiffs have taken contention that as on 11.11.1998 the plaintiff No. 2 and 3 were minors. Hence the General Power of Attorney executed by minors are void document. A perusal of Ex.P3 GPA it would shows that Sri.Raghavendra son of Chinnappa and Smt.Lakshmamma was aged 16 years as on 11.11.1998. DW1 in his cross-examination has deposed that as on 11.11.1998 on the date of execution of Ex.P3 plaintiff No. 3 Raghavendra was aged 17 years. This deposition given by DW1 which is voluntary one. DW1 while answering the question regarding the age of plaintiff No. 2 and 3 has deposed that on 11.11.1998 plaintiff No. 2 was aged 18 years and plaintiff No. 3 was aged 17 years. In Ex.P3 General Power of Attorney also the 47 O.S.7603/2013 age of the plaintiff No. 3 is mentioned as 16 years. Thus one thing is very clear that as on 11.11.1998 the plaintiff No. 3 was not attained the age of majority and he was minor. It is settled principle of law is that any document executed by the minor is void ab initio. Thus the document Ex.P3 General Power of Attorney is not binding on the plaintiff No. 3. Admittedly Chinnappa brother of the defendant No. 1 and husband of plaintiff No. 1, father of plaintiff No. 2 and 3 has died on 30.6.2007. The 1 st defendant in his written statement as well as in his oral evidence has admitted the fact that his brother died on 30.6.2007. DW1 in his examination-in-chief itself has deposed that his brother Chinnappa died on 30.6.2007 leaving behind him, his legal heirs, i.e., plaintiff No. 1 to 3. The defendant No. 1 had knowledge about the death of his 48 O.S.7603/2013 brother Chinnappa on 30.6.2007. Despite of having knowledge about the death of his brother Chinnappa DW1 on the strength of General Power of Attorney executed by his brother and the plaintiff has executed the sale deed dated 16.4.2013 in favour of his son defendant No. 2.
21. In this suit the plaintiffs have produced the document Ex.P5 Deed of Revocation / Cancellation of General Power of Attorney. The plaintiffs in para No. 7 of their plaint have pleaded that they have cancelled / revoked the General Power of Attorney dated 11.11.1998 on 3.4.2013. They have also produced the document Ex.P5. The defendant No. 1 who has filed his written statement has not denied para No. 7 of the plaint with regarding to the plaintiffs have cancelled / revoked General Power of Attorney dated 11.11.1998 49 O.S.7603/2013 on 3.4.2003. Order VIII Rule 3 of C.P.C. is very clear that the denial in the written statement must be specific denial. The Hon'ble Supreme Court in the decision reported in AIR 2017 SC 3995 in Jespal Kaur Cheema Vs. M/s. Industrial Trade Links held that the written statement must specific deal with each of the allegations of fact made in the plaint, failure to make specific denial amounts to admission. The provision under Order VIII Rule 5(1) of C.P.C. is very clear that every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Provided that the court may in its discretion requires any fact so admitted to be proved otherwise than by such admission. In the present suit 50 O.S.7603/2013 the 1 st defendant has not specifically denied para No. 7 of the plaint. Even after marking of the document Ex.P5 no questions or suggestions are asked to PW1 denying this document Ex.P5. The plaintiffs not only got marked the document Ex.P5 but also produced and got marked the document Ex.P6 notice dated 3.4.2013 issued to the defendant No. 1 having cancelled / revoked General Power of Attorney dated 11.11.1998. The 1 st defendant in his written statement has admitted the receipt of the legal notice sent by the plaintiffs. DW1 in his examination-in-chief has not stated regarding the receipt or non-receipt of the legal notice sent by the plaintiffs. During the course of cross- examination of DW1 he has pleaded unawareness regarding the legal notice Ex.P6 and cancellation of the General Power of Attorney dated 11.11.1998. Since the 51 O.S.7603/2013 1 st defendant in his written statement itself admitted para No. 8 of the plaint regarding the legal notice dated 3.4.2013 sent by the plaintiff, under such circumstances the document Ex.P6 legal notice dated 3.4.2013 is sufficient to hold that the plaintiffs on 3.4.2013 itself by sending this legal notice to the 1 st defendant intimated him regarding the revocation / cancellation of the General Power of Attorney dated 11.11.1998 and warning and directing him not to deal / transact with the property in any manner and if he deals with the property same is not binding on the plaintiffs. The plaintiffs in Ex.P6 legal notice have clearly mentioned the property particulars in the schedule also mentioned regarding the cancellation of the General Power of Attorney dated 11.11.1998 executed by the plaintiffs. The document Ex.P7 is the 52 O.S.7603/2013 postal acknowledgment for having served legal notice to the 1 st defendant. The 1 st defendant in his written statement has taken contention that he has sent a valid and tenable reply to the legal notice issued by the plaintiffs. The plaintiffs have produced the document Ex.P8 reply notice sent by the 1 st defendant. During the course of cross-examination of PW1 the defendants have not denied regarding the issuance of reply notice as per Ex.P8. No doubt in Ex.P8 the 1 st defendant has taken contention that the plaintiffs have sold the suit schedule property in favour of the 1 st defendant by receiving total sale consideration of Rs.40,000/- on 11.11.1998 and put him in possession and enjoyment of the property. The 1 st defendant in his reply notice as per Ex.P8 has taken specific contention that as the plaintiffs have sold the property in favour of the 1 st 53 O.S.7603/2013 defendant the question of revoking the General Power of Attorney does not arise at all and the plaintiffs have no legal authority to cancel the General Power of Attorney when they have already sold the property in favour of the 1 st defendant.
22. The 1 st defendant in his written statement as well as in his examination-in-chief has taken contention that his brother Chinnappa who offered the sale of the suit schedule property to him collected sum of Rs.40,000/- as sale consideration amount on various dates during his life time. But in Ex.P8 reply notice sent by the 1 st defendant to the plaintiffs the 1 st defendant has taken contention that the plaintiffs have received total sale consideration of Rs.40,000/- on 11.11.1998 i.e., on the date of execution of General Power of Attorney in favour of the 1 st defendant. The 1 st defendant in his 54 O.S.7603/2013 reply notice as per Ex.P8 has taken contention that he has paid total sale consideration of Rs.40,000/- to the plaintiffs on 11.11.1998, i.e., on the date of execution of General Power of Attorney, but in the written statement as well as in the chief examination of DW1 he has taken contention that he had paid sum of Rs.40,000/- to his brother Chinnappa on various dates during his life time. Hence Chinnappa and the plaintiffs have executed the General Power of Attorney dated 11.11.1998 in favour of the 1 st defendant and delivered the possession of the suit schedule property to him. On perusal of the document Ex.P8 reply notice and the defence taken by the 1 st defendant in his written statement and in his examination-in-chief it would go to show that the 1 st defendant has taken inconsistent defence regarding the payment of the 55 O.S.7603/2013 consideration amount. At one stretch in reply notice he has taken contention that he was paid Rs.40,000/- to the plaintiffs on 11.11.1998 but in another stretch in his written statement and in his chief examination defendant No. 1 has taken contention that he was paid Rs.40,000/- to his brother Chinnappa during his life time on various dates. DW1 in his cross-examination admitted the suggestion that he had no documents to show that he had paid Rs.40,000/- to his brother Chinnappa. Even though he has denied the suggestion that there is no mentioned in Ex.P3 regarding the payment of such sale consideration but fact remains that on perusal of the document Ex.P3 there is absolutely no recital that this General Power of Attorney was executed by Chinnappa and plaintiffs by receiving consideration amount of Rs.40,000/-. During 56 O.S.7603/2013 the course of cross-examination of DW1 when the learned counsel for the plaintiff by confronting the document Ex.P3 asked question regarding whether the General Power of Attorney referred by him is the same document or not, then he answered since he does not know to read and write he cannot say about the same. There is absolutely no document on the side of the 1 st defendant to show that he was paid sale consideration amount of Rs.40,000/- either to his brother Chinnappa or to the plaintiffs. DW1 has also not made it clear that on which date his brother was received amount from him. There is no recital in Ex.P3 that this General Power of Attorney was executed by Chinnappa and plaintiffs by receiving any consideration amount. In the absence of any cogent evidence to show that the 1 st defendant paid consideration amount to the brother 57 O.S.7603/2013 Chinnappa such contention that the 1 st defendant is that he has paid Rs.40,000/- to Chinnappa is not believable. The self serving statement of DW1 which is not supported by any document is not sufficient to hold that late Chinnappa during his life time had received sum of Rs.40,000/- on various dates from the 1 st defendant.
23. The 1 st defendant himself admitted that his brother Chinnappa died on 30.6.2007. It is not the contention of the 1 st defendant is that his brother Chinnappa had executed any other documents such as sale deed, gift deed or any other testamentary documents in his favour prior to his death. It is now settled principle of law is that General Power of Attorney does not convey any title nor create any interest in an immovable property. The Hon'ble Supreme Court in 58 O.S.7603/2013 the decision in Suraj Lamp Vs. Industries (P) ... Vs. State of Haryana and another decided on 11.10.2011 decided regarding the scope of agreement of sale, General Power of Attorney and Will. In para No.13 of the judgment Hon'ble Supreme Court held as follows:
"Scope of power of attorney : A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the power of attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known 59 O.S.7603/2013 to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan Vs. Basant Nehata -
2005(12) SCC 77, court held:
"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the
principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the Principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read 60 O.S.7603/2013 as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the power of attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject to course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."61 O.S.7603/2013
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor."
The Hon'ble Supreme Court in para No. 15 of this judgment concluded and decided that a sale agreement / GPA / Will transaction does not convey any title nor create any interest in an immovable property. It is also held that immovable property can be legally and lawfully transferred / conveyed only by a registered deed of conveyance. Transactions of the nature of General Power of Attorney sales or "SA / GPA / Will transfers" do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immovable property. The courts will not treat 62 O.S.7603/2013 such transactions as completed or concluded transfers or as conveyance as they neither convey title nor create any interest in an immovable property.
They cannot be recognised as deeds of title, except to the limited extent of section 53A of T.P.Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records.
However Hon'ble Supreme Court made it clear that these observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions.
24. In the present suit it is not in dispute that the plaintiffs and Sri.Chinnappa have executed General Power of Attorney in favour of the 1 st defendant on 11.11.1998. Sri.Chinnappa died on 30.6.2007. On the 63 O.S.7603/2013 death of Chinnappa General Power of Attorney executed by Chinnappa so far to the extent of Chinnappa ceases. After the death of Chinnappa the plaintiffs have cancelled / revoked the General Power of Attorney as per Ex.P5 on 3.4.2013. The plaintiffs have also issued notice as per Ex.P6 on 3.4.2013 to the defendant No. 1 intimating him that they have revoked / cancelled the General Power of Attorney dated 11.11.1998. To this legal notice the 1 st defendant has sent his reply notice dated 10.4.2013 as per Ex.P8 by contending that the plaintiffs have sold the suit schedule property in his favour by receiving total sale consideration of Rs.40,000/- on 11.11.1998 and put him in possession of the schedule property and hence they have no legal authority to cancel the General Power of Attorney. As I already discussed 64 O.S.7603/2013 above the 1 st defendant has not produced any iota of evidence to show that he has paid sale consideration amount of Rs.40,000/- to the plaintiffs. His very defence taken in Ex.P8 notice is inconsistence with the defence taken in his written statement. So far as payment of sale consideration is concerned in the written statement and in his chief examination the defendant No. 1 has taken contention that he has paid sale consideration of Rs.40,000/- to Chinnappa on various dates. But in Ex.P8 it is mentioned that the plaintiffs have received total sale consideration of Rs.40,000/- on 11.11.1998. Thus the contention of the 1 st defendant is that he has paid sale consideration of Rs.40,000/- is not believable. The defendant No. 1 has taken contention that he has every authority to execute sale deed in favour of his son defendant No. 2, 65 O.S.7603/2013 hence on the basis of the General Power of Attorney executed by the 1 st plaintiff and his brother late Chinnappa he has executed the sale deed in favour of the 2 nd defendant on 16.4.2013.
25. I have gone through the recital of the document Ex.P9 sale deed dated 16.4.2013 wherein it is mentioned that Y.Hanumanthappa (defendant No. 1) as a General Power of Attorney holder of Chinnappa and Smt.Lakshmamma (plaintiff No. 1) has executed this sale deed in favour of H.Muniraja (defendant No. 2). In page No. 2 of this sale deed it is mentioned that "whereas the vendors are the joint and absolute owners of the portion of property bearing khatha No. 74 (present BBMP khatha No. 175/170/128 situated at Mangammanapalya village, Yellukunte dhakle, Begur hobli, Bangalore south taluk, presently comes under 66 O.S.7603/2013 BBMP limits Bangalore morefully described in the schedule here under, hereinafter called the schedule property and the same is vendors ancestral property, acquired through a panchayat parikath.
26. On perusal of Ex.P9 sale deed the word "vendors" refers to Sri.Chinnappa and Smt.Lakshmamma. The defendant No. 1 Y.Hanumanthappa as a General Power of Attorney holder of Chinnappa and Lakshmamma executed this document in favour of his son defendant No. 2. It is pertinent to note that in Ex.P9 sale deed the reference is made with respect to the General Power of Attorney dated 16.9.1993. In page No. 2 at para No. 3 it is mentioned as follows:
"whereas the vendors was not in a position to look after the above property and they have executed a General Power of Attorney along with their children in 67 O.S.7603/2013 respect to the above above property in favour of Y.Hanumanthappa to do all acts, deeds and things in respect of schedule property on 16.9.1993 and accordingly the attorney holder is to executed competent deed of absolute sale on behalf of vendors in favour of purchaser."
27. Even in the document Ex.P9 there is reference regarding General Power of Attorney dated 16.9.1993 the defendant No. 1 has not produced any General Power of Attorney of the year 1993. During the course of cross-examination of DW1 he has deposed that prior to the document Ex.P3 General Power of Attorney there was another General Power of Attorney. The 1 st defendant neither in his written statement nor in his examination-in-chief has deposed anything about the General Power of Attorney of the year 1993. In Ex.P3 68 O.S.7603/2013 General Power of Attorney dated 11.11.1998 the age of the plaintiff No. 2 and 3 are mentioned as 18 years and 16 years respectively. In the year 1993 both the plaintiff No. 2 and 3 were minors. That itself is sufficient to hold that in Ex.P9 sale deed it is falsely mentioned that the vendors executed General Power of Attorney along with their children on 16.9.1993. The defendant No. 1 in his reply notice dated 10.4.2013 would contend that the plaintiffs have executed the document by receiving total sale consideration of Rs.40,000/- and put him in possession of the property, hence on that ground the plaintiffs cannot revoke the General Power of Attorney. After issuing the reply notice the 1 st defendant by mentioning GPA dated 16.9.1993 executed this sale deed dated 16.4.2013 in favour of his son defendant No. 2. However the fact 69 O.S.7603/2013 remains that the 1 st defendant not on his individual capacity has executed this sale deed dated 16.42013 in favour of his son defendant No. 2. The defendant No.1 as General Power of Attorney holder of plaintiff No.1 and deceased Chinnappa has executed this sale deed in favour of his son defendant No.2. Thus the defendant No. 1 has admitted the ownership of late Chinnappa and the plaintiffs over suit schedule property. DW1 in his examination-in-chief itself deposed that on the strength of General Power of Attorney executed by Chinnappa and the plaintiffs herein he had executed a sale deed in favour of his son defendant No. 2 pertaining to the suit property and delivered the possession of the suit schedule property on the date of registration of the document itself. The plaintiffs have produced the document Ex.P5 Deed of revocation / 70 O.S.7603/2013 cancellation of GPA, Ex.P6 copy of legal notice dated 3.4.2013 for having cancelled / revoked General Power of Attorney dated 11.11.2018, Ex.P7 postal acknowledgment having served to the legal notice to defendant No. 1. Ex.P8 reply notice dated 10.4.2013 given by the 1 st defendant. Since the plaintiffs have revoked General Power of Attorney dated 11.11.1998 as per Ex.P5 and intimated the same to the 1 st defendant as per Ex.P6, the General Power of Attorney dated 11.11.1998 ceases soon after service of notice as per Ex.P6 to the first defendant. So far as the deceased Chinnappa is concerned the General Power of Attorney dated 11/11/1998 ceases soon after death of Chinnappa.
28. In Ex.P6 the plaintiffs have clearly warned / directed defendant No. 1 not to deal or transact the 71 O.S.7603/2013 suit schedule property. Despite of service of notice and the defendant No. 1 knowing very well about the death of Chinnappa in the year 2007 itself ventured to execute sale deed dated 16.4.2013 in favour of his son by representing him as a General Power of Attorney holder of Chinnappa and Lakshmamma. The plaintiffs have proved that they have cancelled the General Power of Attorney dated 11.11.1998 by way of deed of Revocation / Cancellation and by issuing notice to the defendant No. 1 as per Ex.P6. The defendant No.1 knowing very well about the death of Chinnappa and knowing very well about the cancellation of GPA dated 11.11.1998 by the plaintiffs has executed the sale deed dated 16.4.2013 in favour of his son by representing as a General Power of Attorney holder which is invalid document. The plaintiffs have proved that General 72 O.S.7603/2013 Power of Attorney dated 11/11/98 is null and void and no binding upon them. The plaintiffs have proved that the sale deed executed by the 1 st in favour of the 2 nd defendant is null and void and not binding upon the plaintiffs.
29. In this suit in the para No. 2 of the plaint the plaintiffs have taken contention that the Chinnappa had acquired suit schedule property by way of partition. In the written statement of the 1 st defendant the 1 st defendant has admitted para No. 2 of the plaint with regarding to relationship between plaintiffs and defendants. But the defendant No.1 has not specifically denied the averments of the plaint that 1 st plaintiff's husband and 2 nd and 3 rd plaintiff's father Chinnappa has acquired the suit schedule property by way of partition. There is no specific denial on the 73 O.S.7603/2013 side of the defendant No. 1 regarding the contention of the plaintiffs that Sri.Chinnappa has acquired the suit schedule property by way of partition. The failure on the part of the defendant No. 1 to make specific denial regarding the partition would amounts to admission. The provision under Order VIII Rule 3 of C.P.C. is very clear that the defendant must specifically deny each of the allegations made in the plaint. Under Order 8 Rule 5 of C.P.C. if the defendant not denies specifically it shall be taken to be admitted. During the course of cross-examination of PW1 also the defendant has not denied the chief examination version of PW1 that Chinnappa has acquired suit schedule property by way of partition. During the course of cross-examination of PW1 suggestion is made to him that since the suit schedule property is the ancestral property of the 2 nd 74 O.S.7603/2013 defendant and as the 1 st defendant by paying the amount to Chinnappa purchased the suit schedule property hence the plaintiffs does not have right over the property. This suggestion is denied by PW1. The defendant No. 1 has not proved by placing cogent evidence to show that he has purchased the suit schedule property for valid consideration of Rs.40,000/- from the father of PW1. DW1 in his examination-in- chief has deposed that late Chinnappa who is his brother died on 30.6.2007 leaving behind him his legal representatives, i.e., plaintiff No. 1 to 3. DW1 has deposed that after the death of his father Yerappa suit schedule property came into his possession and possession of his brother Chinnappa and they were in possession and enjoyment of suit schedule property. In this suit neither the plaintiffs nor the 1 st defendant has 75 O.S.7603/2013 made known to the court about the date of death of Yerappa. Since the 1 st defendant has not seriously disputed about the averments made by the plaintiffs in the plaint that Chinnappa has acquired the suit schedule property by way of partition, no further proof is required regarding the partition. DW1 in his cross- examination has deposed that there was partition taken place and as per panchayat parikath the properties were divided into 3 hissas. DW1 has not deposed anything about who is another sharer of the property. But fact remains that there was a partition taken place between defendant No. 1 / DW1 and his brother Chinnappa. It is pertinent to note that in Ex.P9 sale deed dated 16.4.2003 executed by the 1 st defendant as a GPA holder of Sri.Chinnappa and Smt.Lakshmamma in para No. 2 at page No. 2 of this sale deed, it is 76 O.S.7603/2013 clearly mentioned that the property is the vendors ancestral property acquired through a panchayat parikath. In this document Ex.P9 the word vendors refers to Sri.Chinnappa and Smt.Lakshmamma. The very recital of sale deed dated 16.4.2013 executed by defendant No. 1 as a General Power of Attorney holder of Sri.Chinnappa and Smt.Lakshmamma would indicates that the suit schedule property is the ancestral property which was acquired by Sri.Chinnappa (husband of plaintiff No. 1 and father of plaintiff No. 2 and 3) through a panchayat parikath / partition. In this suit the plaintiffs have prayed to declare them as the absolute owners of the suit schedule property which was acquired by Yerappa and thereafter by Chinnappa and after the death of Chinnappa by the plaintiffs by way of succession. The oral evidence of PW1, DW1 77 O.S.7603/2013 and documents Ex.P2, Ex.P3, Ex.P9 are sufficient to hold that Sri.Chinnappa who is the father of plaintiff No. 2 and 3 and husband of plaintiff No. 1 has acquired the suit schedule property by way of partition. There is no dispute that Chinnappa died on 30.6.2007 leaving behind him his legal heirs plaintiff No. 1 to 3. After the death of Sri.Chinnappa the plaintiffs being legal heirs of Sri.Chinnappa become the owners of the suit schedule property by way of succession. While discussing issue No. 3 this court opined that the plaintiffs proved that General Power of Attorney dated 11.11.1998 was ceases soon after the death of Chinnappa, so far as Chinnappa is concerned and it will ceases soon after the plaintiffs have cancelled / revoked the same on 3.4.2003 as they have intimated the same to the defendant No. 1 by sending 78 O.S.7603/2013 legal notice dated 3.4.2013. Thus the plaintiffs proved that General Power of Attorney dated 11.11.1998 has become null and void and not binding upon them. The document Ex.P9 copy of sale deed dated 16.4.2013 which was executed by the 1 st defendant as a General Power of Attorney holder of Sri.Chinnappa and Lakshmamma in favour of his son 2 nd defendant with respect to the suit schedule property. Since this sale deed dated 16.4.2013 executed by the 1 st defendant after the death of his brother Chinnappa and after the cancellation / revocation of the General Power of Attorney by the plaintiffs this sale deed dated 16.4.2013 also become null and void and not binding upon the plaintiffs. The defendants have not produced any documents to show that based on the sale deed dated 16.4.2013 the consideration amount of 79 O.S.7603/2013 Rs.4,20,000/- as mentioned in the sale deed passed to defendant No. 2 to defendant No. 1. When question asked by the learned counsel for the plaintiffs in the cross-examination of DW1 that why he had executed sale deed instead of gift deed to his son then he answered by apprehending that anybody may ask about the property, hence he executed the sale deed. It is pertinent to note that the document Ex.P16 copy of gift deed dated 16.4.2013 with respect to another property marked through DW1 in his cross-examination which would go to show that on the same day on 16.4.2013 defendant No. 1 gifted another property bearing old khaneshumari No. 65/3 and BBMP khatha No. 182/177/130 situated at Mangammanapalya village, Yellukunte dhakle, property bearing measuring east to west 80 feet and north to south 30 feet totally 80 O.S.7603/2013 measuring 2400 square feet in favour of his son defendant No. 2. Even though DW1 in his cross- examination claimed that his son defendant No. 2 has paid sale consideration of Rs.4,20,000/- to him by way of cash, the defendant No.1 has not produced any document to show that his son had such huge amount of cash in his hand to pay the sale consideration amount. DW1 in his cross-examination has deposed that in the year 2013 his son was doing cooli work. Under such circumstances it is not believable that such huge consideration amount of Rs.4,20,000/- was passed from the defendant No. 2 to defendant No. 1 under sale deed dated 16.4.2013. On this count also the sale deed dated 16.4.2013 became null and void. After the death of Sri.Chinnappa brother of the 1 st defendant as the General Power of Attorney dated 11.11.1998 ceases, 81 O.S.7603/2013 the defendant No. 1 has no authority to execute the sale deed in favour of his son on the strength of General Power of Attorney executed by late Chinnappa. DW1 in his examination-in-chief has deposed that on the strength of General Power of Attorney executed by late Chinnappa and the plaintiffs he had executed a sale deed in favour of his son pertaining to the suit schedule property. After the death of Chinnappa and after the plaintiffs revoked the General Power of Attorney the 1 st defendant has no authority to execute the sale deed in respect of suit schedule property in favour of his son on the strength of General Power of Attorney. The plaintiffs have proved that the sale deed dated 16.4.2013 is null and void and not binding upon them. The plaintiffs have proved that General Power of Attorney dated 11.11.1998 became null and void 82 O.S.7603/2013 after the death of Sri.Chinnappa and after the plaintiffs have cancelled / revoked the same by executing Deed of Revocation / Cancellation of General Power of Attorney dated 3.4.2013 and by issuing notice dated 3.4.2013 regarding revocation / cancellation of General Power of Attorney. The plaintiffs have proved that the suit schedule property was acquired by Chinnappa by way of partition. After the death of Chinnappa the plaintiffs being his legal heirs succeeded the suit schedule property by way of succession and thus the plaintiffs have become the absolute owners of the suit schedule property. The plaintiffs have proved that they are the absolute owners of the suit schedule property. Hence I answered Issue No. 1 in the Affirmative, Issue No. 3 in the Affirmative and Issue No.4 in the Affirmative.
83 O.S.7603/2013
30. Issue No.2 and Issue No. 6: The plaintiffs have prayed to direct the defendants to handover the possession of the suit schedule property to the plaintiffs. Hence issue No. 2 is framed casting burden upon the plaintiffs to prove whether the plaintiffs are entitled for possession of the suit schedule property. On the other hand the 1 st defendant has taken contention that the suit of the plaintiff is barred by period of limitation on the ground that the plaintiffs have lost the possession of the suit schedule property long back, i.e., from 11.11.1998. The 1 st defendant has also taken contention that the prayer of the plaintiff to declare that General Power of Attorney dated 11.11.1998 executed by 2 nd and 3 rd plaintiff who were minors as on the date of execution of General Power of Attorney in favour of the 1 st defendant as 84 O.S.7603/2013 null and void also barred by Law of Limitation because the plaintiff No. 2 and 3 were not filed the suit seeking such relief within three years from the date they attained the age of majority.
31. The learned counsel for the defendants argued that the 1 st defendant was put in possession of the suit schedule property on 11.11.1998 by virtue of General Power of Attorney dated 11.11.1998 executed by the plaintiffs and late Chinnappa. He argued that the plaintiffs themselves have produced and got marked copy of General Power of Attorney dated 11.11.1998 and marked this document as Ex.P3 which discloses that the 1 st defendant was put in possession of the suit schedule property on 11.11.1998 as per clause No.1. He argued that the plaintiffs have filed this suit on 19.10.2013, i.e., after a lapse of more than 14 years 11 85 O.S.7603/2013 months after they executed General Power of Attorney dated 11.11.1998 and given possession of the suit schedule property to the 1 st defendant. Therefore the suit for possession of the suit schedule property is barred by Law of Limitation since the plaintiffs have lost their possession over the suit schedule property to the 1 st defendant on 11.11.1998 under the General Power of Attorney dated 11.11.1998. He argued that the suit for possession is barred by period of limitation as the plaintiffs have not filed the suit within a period of 12 years from the date of loosing possession of the property or from the date of dispossession. He argued that the 1 st defendant in his written statement has taken contention that he is in possession and enjoyment of the suit schedule property along with his son since a long time more than 25 years. He argued 86 O.S.7603/2013 that during the course of cross-examination of PW1 he has admitted that he has not pleaded anything in the plaint about the handing over the possession of the property and about the construction made thereon. He argued that the plaintiffs have not produced any documents regarding the age proof of the plaintiff No. 2 and 3.
32. On the other hand the learned counsel for the plaintiff argued that the plaintiffs have filed this suit praying to declare that they are the absolute owners of the suit schedule property and to declare that General Power of Attorney dated 11.11.1998 is null and void and not binding on the plaintiffs and to declare that the sale deed dated 16.4.2013 as null and void and not binding on the plaintiffs and to direct the defendants to handover the possession of the suit schedule 87 O.S.7603/2013 property to the plaintiffs. He submitted that since the plaintiffs have filed this suit for declaration of ownership and for recovery of possession the suit of the plaintiffs is not barred by period of Limitation.
33. I have appreciated the rival contentions taken by the parties. It is pertinent to note that even though 1 st defendant has taken contention that the suit of the plaintiffs is barred by period of Limitation and even though the learned counsel for the defendants argued that the suit of plaintiffs is barred by period of Limitation, the learned counsel for the defendants has not submitted anything about which Article of Limitation Act is applies to this suit to say that this suit is barred by period of Limitation. The learned counsel for the plaintiffs also not submitted anything about which Section or Article of the Limitation Act 88 O.S.7603/2013 applies to the present suit in order to decide whether the suit is filed within the period of Limitation or not. With regarding to the recovery of possession two Articles deals with recovery of possession under the Limitation Act. Article 64 is deals with suit for possession of the immovable property based on previous possession. Article 65 of the Limitation Act deals with the suit for possession based on title. The plaintiffs have filed this suit for declaration of ownership and for recovery of possession. The plaintiffs have not filed this suit for recovery of possession solely on the strength of previous possession. The plaintiffs by claiming that they are the absolute owners of the suit schedule property prayed for recovery of possession of the suit schedule property from the defendants. The Hon'ble Supreme Court in 89 O.S.7603/2013 the decision reported in AIR 1973 SC 2537 between Rajender Singh Vs. Sant Singh and in the decision reported in AIR 1966 SC 605 in Ambica Prasad Vs. Ram Ekbal held that in order to decide as to whether the suit is based on possession or title the court shall look into the averment as a whole made in the plaint. On perusal of the plaint averments it would go to show that the plaintiffs claiming that they are the absolute owners of the suit schedule property and sought for recovery of possession of the suit schedule property from the defendants. Hence this court of the opinion that Article 64 of the Limitation Act does not apply to this suit as this suit is not filed wholly and solely on the strength of the previous possession but this suit has been filed based on the ownership over the suit schedule property. When the question comes with 90 O.S.7603/2013 respect to the suit for possession based on title Article 65 of Indian Limitation Act applies. It is now settled principle of Law is that when the plaintiffs have filed a suit for recovery of possession based on title it is for the defendant to plead and prove that he is in adverse possession and perfected his title by remaining in such possession for more than 12 years. In the present suit the defendant has not claimed that he has perfected his title by way of adverse possession. The Hon'ble Supreme Court in decision reported in AIR 2009 SC 2966 held that a suit for declaration of title and recovery of possession attracts Article 65 no doubt but if the defendant succeeds in proving adverse possession for over 12 years then suit has to be dismissed. In the present suit the defendants have not claimed adverse possession over the suit schedule property . No doubt 91 O.S.7603/2013 the plaintiffs in their plaint have not stated anything about when they and Chinnappa have handover the suit schedule property to the 1 st defendant. But very averments made by the plaintiffs in their plaint that the 1 st plaintiffs husband along with the plaintiffs have executed unregistered General Power of Attorney in favour of the 1 st defendant on 11.11.1998 would indicates that they have handover the possession of the suit schedule property to the 1 st defendant on 11.11.1998. In Ex.P3 copy of General Power of Attorney dated 11.11.1998 it is mentioned that on the date of execution of this General Power of Attorney the executants have handover the possession of the property to the 1 st defendant, i.e., General Power of Attorney holder. The plaintiffs have produced the documents Ex.P12 copy of property tax receipt, Ex.P13 92 O.S.7603/2013 khatha certificate and Ex.P14 khatha extract which would go to show that the khatha of the suit schedule property was changed in the name of the 1 st defendant. PW1 in his cross-examination admitted the suggestion that they have not pleaded anything in the plaint about the handing over the possession of the suit schedule property and about the constructions made thereon. No doubt the plaintiffs have not pleaded anything about when they have lost their possession over the suit schedule property. But on perusal of the document Ex.P3 copy of General Power of Attorney dated 11.11.1998 it would go to show that the plaintiffs and Chinnappa have delivered the possession of the suit schedule property to the 1 st defendant on 11.11.1998 on the strength of this General Power of Attorney. Now the question is whether the suit of the 93 O.S.7603/2013 plaintiff is barred by period of Limitation? The answer is 'no' because the plaintiffs have filed this suit for recovery of possession based on ownership. It is for the defendants to plead and prove that they have perfected their title by way of adverse possession. In this suit there is no pleading on the side of the defendants regarding the adverse possession. On the other hand the 1 st defendant has taken contention that his brother Chinnappa sold the suit schedule property to him for Rs.40,000/-, thus the 1 st defendant came in possession of the suit schedule property. It is the contention of the 1 st defendant is that he has become the owner of the suit schedule property as he purchased the same by giving consideration amount of Rs.40,000/- to his brother. Since the 1 st defendant has taken the contention that he has purchased the suit 94 O.S.7603/2013 schedule property by paying consideration amount of Rs.40,000/-, under such circumstances the adverse possession plea is also not available to the 1 st defendant. While answering issue No. 1, 3 and 4 this court held that the 1 st defendant has failed to prove that he has paid sum of Rs.40,000/- as a sale consideration to his brother Chinnappa. The evidence in this suit would go to show that the 1 st defendant continued in possession of the suit schedule property from 11.11.1998 on the strength of the General Power of Attorney executed by Chinnappa and the plaintiffs. No doubt the 1 st defendant has remained in possession of the suit schedule property for over 12 years. That does not ripe into adverse possession because the 1 st defendant has not pleaded and proved regarding the adverse possession. Since the 1 st defendant has 95 O.S.7603/2013 continued in possession of the suit schedule property on the strength of power of attorney it can be said that it is only permissive possession. The plaintiffs have produced the document Ex.P5 Deed of Revocation / Cancellation of General Power of Attorney) and Ex.P6 copy of legal notice dated 3.4.2013 for cancellation / revocation of General Power of Attorney . The 1 st defendant has issued reply notice as per Ex.P8 by contending that the plaintiffs have sold the suit schedule property in his favour by receiving a total consideration of Rs.40,000/- on 11.11.1998. In this suit the 1 st defendant has failed to prove that he has purchased suit schedule property by paying sale consideration of Rs.40,000/-. Since the defendants have not taken any defence of adverse possession, merely because the 1 st defendant has remained in 96 O.S.7603/2013 possession for over 12 years, that cannot be ground to say that the suit of the plaintiff is barred by period of Limitation. In this suit the plaintiffs have proved that they are the owners of the suit schedule property. Since the defendants have not taken any defence of adverse possession the plaintiffs cannot be non-suited. The Hon'ble Supreme Court in the decision reported in (1998) 1 SCC 614 between Indira Vs. Arumugam held that in a suit under Article 65 the initial burden is on the plaintiff to prove his title. Once title is established on the basis of relevant documents and other evidence, unless the defendant proves adverse possession for the prescriptive period, under section 27, the plaintiff cannot be non-suited. In this suit the plaintiffs have claimed that they are the absolute owners of the suit schedule property by way of 97 O.S.7603/2013 succession. While discussing issue No. 1 this court held that the plaintiffs have become the owners of the suit schedule property by way of succession. On this count also the suit of the plaintiff for the relief of declaration of ownership and for recovery of possession is not barred by period of Limitation. Since the plaintiffs have proved that they are the owners of the suit schedule property the plaintiffs are entitled for the recovery of possession of the suit schedule property. The suit of the plaintiffs is not barred by period of Limitation. No doubt the plaintiff No. 3 has not filed the suit to cancel the General Power of Attorney within three years after he attained the age of majority. There is no document on the side of the plaintiffs to show that plaintiff No. 2 was minor as on the date of execution of General Power of Attorney 98 O.S.7603/2013 dated 11.11.1998. Merely because the plaintiff No. 3 was not filed the suit within three years after he attained the age of majority that does not prevent him to revoke or cancel the General Power of Attorney after he attains the age of majority. In this suit the plaintiff No. 1 to 3 have revoked / cancelled the General Power of Attorney under Ex.P5 and by issuing notice to the 1 st defendant as per Ex.P6. Thus merely because the 3 rd defendant has not filed the suit within three years after he attained the age of majority that cannot be ground to say that the suit of the plaintiffs is barred by period of Limitation. It can be held that in order to declare the General Power of Attorney dated 11.11.1998 on the ground that it was executed by the 2 nd defendant and 3 rd defendant at the age of minority as null and void can be said that it is barred 99 O.S.7603/2013 by Limitation. But to declare the General Power of Attorney as null and void and not binding on the plaintiffs on other grounds such as after the death of Chinnappa General Power of Attorney ceases and after cancellation / revocation of General Power of Attorney by the plaintiffs the General Power of Attorney ceases and thereby the General Power of Attorney dated 11.11.1998 does not bind on the plaintiffs it is not barred by limitation. The contention taken by the 1 st defendant is that suit of the plaintiffs is barred by Limitation is not acceptable. The suit of the plaintiffs for the relief of declaration of ownership and to declare the General Power of Attorney dated 11.11.1998 is null and void and not binding on the plaintiff and to declare that the sale deed dated 16.4.2013 is null and void and not binding on the 100 O.S.7603/2013 plaintiffs and for recovery of possession of the suit schedule property is not barred by period of Limitation. The plaintiffs are entitled for possession of the suit schedule property. Hence I answered issue No. 2 in the Affirmative and issue No. 6 in the Negative.
34. Issue No. 5 and Additional Issue No. 1: In this suit the plaintiffs have sought for the relief of permanent injunction to restrain the defendants, their men, supporters, attorneys, agents, etc. or anybody claiming directly or indirectly through the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. During the pendency of this suit the plaintiffs by way of amendment added para No. 17(a) of the plaint by contending that after filing the suit the defendants with 101 O.S.7603/2013 a malafide intention has constructed in the suit schedule property and the same has to be demolished. The plaintiffs have amended the prayer column of the plaint and para No. 6(a) added praying to grant an order of mandatory injunction by directing the defendants to demolish the constructed building put up by the defendants to handover the vacant possession of the plaintiffs. PW1 has deposed that after filing this suit the defendants with a malafide intention have put up construction in the suit schedule property hence same has to be demolished. On the other hand the 1 st defendant who has filed his written statement on 6.2.2014 i.e., prior to carrying out amendment in the plaint has taken contention that he has constructed a new house in place of the original structure by spending huge sum of money. During the course of 102 O.S.7603/2013 cross-examination of PW1 he has denied the suggestion that during the year 1998 after the 1 st defendant taken the possession of the suit schedule property he by demolishing the old house constructed the new house in the suit schedule property. PW1 in his cross- examination admitted the suggestion that they have not pleaded anything in the plaint about the handing over the possession of the property and about the construction made thereon. The plaintiffs have not produced any documents to show when actually the defendant No. 1 has constructed the building in the suit schedule property. During the course of cross- examination of DW1 one document Ex.P17 which was received through RTI confronted to him but DW1 has denied the signature found on the copy of application annexed to Ex.P17. This document Ex.P17 marked 103 O.S.7603/2013 through DW1 only to say that it was confronted to DW1. Since DW1 has not admitted this document Ex.P17 this document Ex.P17 cannot be relied upon. DW1 in his cross-examination denied the suggestion that he has constructed the house in the suit schedule property very recently. The plaintiff has not produced any documents to show that the defendants have constructed the building in the suit schedule property after filing this suit. Under such circumstances the plaintiffs are not entitled for the relief of mandatory injunction to direct the defendants to demolish the constructed building. The defendant No. 1 has taken contention that he has constructed the building 30 years back. No doubt the defendants have not produced any documents to show in which year they have constructed the building in the suit schedule 104 O.S.7603/2013 property. Merely because there exists building in the suit schedule property that will not hinder the plaintiffs to recover the possession of the suit schedule property. The plaintiffs have also sought for the relief of permanent injunction to restrain the defendant from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property. According to the plaintiffs they are not in possession of the suit schedule property. Under such circumstances granting of permanent injunction to restrain the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property does not arise. The plaintiffs are not entitled for the relief of mandatory injunction and for the relief of permanent injunction as prayed in the plaint. Hence I answered 105 O.S.7603/2013 Issue No. 5 and Additional Issued No. 1 in the Negative.
35. Issue No. 7: While discussing issue No. 1 this court held that the plaintiffs proved that they are the absolute owners of the suit schedule property. While discussing issue No. 3 it is held that the plaintiffs proved that the General Power of Attorney dated 11.11.1998 is null and void and not binding upon the plaintiffs. While discussing issue No. 4 it is held that the plaintiffs proved that the sale deed dated 16.4.2013 is null and void and not binding upon them. While discussing issue No. 2 this court held that the plaintiffs are entitled for the possession of the suit schedule property. In this suit in the prayer column of the plaint the plaintiffs have sought for following reliefs: 106 O.S.7603/2013
(1) To declare that the plaintiffs are the absolute owners of the suit schedule property which was acquired by Yerappa and thereafter by Chinnappa, who is the husband of the 1 st plaintiff and father of the 2 nd and 3 rd plaintiff and after the death of Chinnappa by the plaintiffs way of succession.
(2) To declare that the General Power of Attorney dated 11.11.1998 executed by the 2 nd and 3 rd plaintiff, who were minors as on the date of exectuion of the General Power of Attorney in favour of the 1 st defendant as null and void.
(3) To declare that the General Power of Attorney dated 11.11.1998 executed by Chinnappa, who is the 1 st plaintiff's husband and 2 nd and 3 rd plaintiff's father, dies along with the death of 107 O.S.7603/2013 Chinnappa from 30.6.2007 and any transaction taken place thereafter is not binding on the plaintiffs.
(4) To declare by cancelling sale deed dated 16.4.2013 executed by the 1 st defendant in favour of his son H.Muniraja, who is the 2 nd defendant, registered in book I, vide No. BMH-
00511-2013-2014 and recorded in C.D.No.BMHD623, dated 16.4.2013, in the office of the Sub-Registrar, Bommanahalli, Bangalore and the same is not binding on the plaintiffs, since one of the executor Chinnappa has expired on 30.6.2007, thereafter the said General Power of Attorney dated 11.11.1998 has been ceased from 30.6.2007.
(5) Direct the defendants to handover
the possession of the suit schedule
property to the plaintiffs.
108 O.S.7603/2013
(6) To declare that the sale deed dated
16.4.2013, executed by the 1 st
defendant in favour of his son
Sri.H.Muniraja, who is the 2 nd
defendant, registered in book I, vide
No. BMH-00511-2013-2014 and
recorded in C.D.No.BMHD623, dated
16.4.2013, in the office of the Sub-
Registrar, Bommanahalli, Bangalore as null and void and not binding on the plaintiff.
6(a) That this Hon'ble court be pleased to grant an order in the manner of mandatory injunction by directing the defendants to demolish the constructed building put up by the defendants to handover the vacant possession to the plaintiffs.
(7) To pass an order for the relief of permanent injunction, restraining the defendants, their men, supporters, 109 O.S.7603/2013 attorneys, agents, etc., or anybody claiming directly or indirectly through the defendants either from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property.
(8) To grant such other relief/s order/s as this Hon'ble court deems fit in the circumstance of this case with cost in the interest of justice, equity and law.
36. In view of the findings on issue No. 1 to 7 and Additional Issue No. 1 the plaintiffs are entitled for the relief of declaration as prayed in prayer column No. 1, 3, 4, 5 and 6. The plaintiffs are not entitled for the relief of the plaint prayer column 2, 6(a) and 7. Hence I answered issue No. 7 partly in the Affirmative. 110 O.S.7603/2013
37. Issue No.8: In view of my findings to the issue No. 1 to 7 and additional issue No. 1, I proceed to pass the following:
ORDER The suit of the plaintiffs is partly decreed.
It is hereby declared that the plaintiffs are the absolute owners of the suit schedule property by way of Succession as successor of Sri.Chinnappa.
It is hereby declared that General Power of Attorney dated 11.11.1998 ceased from 30.6.2007 after the death of Sri.Chinnappa and after the plaintiffs are revoked / cancelled the same on 3.4.2013 and any transaction taken 111 O.S.7603/2013 place thereafter is not binding on the plaintiffs.
It is hereby declared that the sale deed dated 16.4.2013 executed by the 1 st defendant in favour of his son 2 nd defendant with respect to the suit schedule property is null and void and is not binding on the plaintiffs. The sale deed dated 16.4.2013 registered in book I, vide No. BMH-00511-2013-2014 and recorded in C.D.No.BMHD623, dated 16.4.2013, in the office of the Sub-Registrar, Bommanahalli, Bangalore is hereby cancelled.
The defendants are hereby directed to handover the possession of the suit schedule property to the plaintiffs within six months from the date of this judgment.112 O.S.7603/2013
The prayer of the plaintiffs for the relief of mandatory injunction and permanent injunction is rejected.
Parties shall bear their own cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 16th day of June 2021.) (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - C.Satish Kumar Witness examined for the defendant/s :
DW1 - Hanumanthappa Documents marked for the plaintiff/s :
Ex.P1 - Affidavit regarding Genealogical tree Ex.P2 - certified copy of sale deed 113 O.S.7603/2013 dated 27.7.1957 Ex.P2(a) - Typed copy of Ex.P2 Ex.P3 - certified copy of General Power of Attorney copy dated 11.11.1998 Ex.P4 - Death certificate Ex.P5 - Cancellation / revocation of General Power of Attorney dated 11.11.1998 on 3.4.2003 Ex.P6 - Office copy of legal notice dated 3.4.2013 issued by the plaintiff to defendant No. 1.
Ex.P7 - Postal endorsement
Ex.P8 - copy of Reply notice
Ex.P9 - Certified copy of sale deed dated
16.4.2013
Ex.P10 - Certified copy obtained through RTI Act
i.e., affidavit filed by the defendants to the Sub-Registrar Ex.P11 - certified copy obtained through RTI Act of Form No.1 given by the defendants to the Sub-Registrar 114 O.S.7603/2013 Ex.P12 - certified copy obtained through RTI Act document property tax paid receipt dated 1.10.2010 for the years 2010-11 given by the defendant to the Sub-Registrar Ex.P13 - certified copy of Khatha certificate dated 4.10.2010 Ex.P14 - certified copy of the tax extract dated 4.10.2012 Ex.P15 - Paper publication Ex.P16 - certified copy of Gift deed dated 16.4.2013 Ex.P17 - Document regarding information issued under RTI Act Documents marked for the defendant/s :
Nil (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.115 O.S.7603/2013
Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiffs is partly decreed.
It is hereby declared that the
plaintiffs are the absolute owners of
the suit schedule property by way
of succession as successor of
Sri.Chinnappa.
It is hereby declared that
General Power of Attorney dated
11.11.1998 ceased from 30.6.2007
after the death of Sri.Chinnappa
and after the plaintiffs are
revoked / cancelled the same on
3.4.2013 and any transaction taken
place thereafter is not binding on
the plaintiffs.
116 O.S.7603/2013
It is hereby declared that the
sale deed dated 16.4.2013 executed
by the 1 st defendant in favour of his
son 2 nd defendant with respect to
the suit schedule property is null
and void and is not binding on the
plaintiffs. The sale deed dated
16.4.2013 registered in book I, vide
No. BMH-00511-2013-2014 and
recorded in C.D.No.BMHD623, dated
16.4.2013, in the office of the Sub-
Registrar, Bommanahalli, Bangalore
is hereby cancelled.
The defendants are hereby
directed to handover the possession
of the suit schedule property to the
plaintiffs within six months from
the date of this judgment.
The prayer of the plaintiffs for
the relief of mandatory injunction
117 O.S.7603/2013
and permanent injunction is
rejected.
Parties shall bear their own
cost.
Draw decree accordingly.
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
118 O.S.7603/2013