Karnataka High Court
Sri K Muniraju vs Chikkottappa Since Dead By His Lrs on 10 March, 2015
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH 2015
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.1827 OF 2010
BETWEEN:
1. Sri. K. Muniraju,
Son of Kenchappa,
Aged about 55 years,
Residing at No.432,
Shivashankara Block,
Hebbal, Bangalore - 560 024.
2. Sri. A. Gnanamani,
Son of Late Anbunathan,
Aged about 50 years,
1st Main Road,
Bhuvaneshwarinagar,
Near Goutham College,
R.T.Nagar Post,
Bangalore - 560 032.
3. Sri. P.K.Shekar,
Son of D. Parthasarathy,
Aged about 50 years,
Narayanappa Block,
2nd Cross, R.T.Nagar,
Bangalore - 560 032.
2
4. Smt. Parvathamma,
Wife of Late Narayanappa,
Aged about 46 years,
Residing at No.510,
3rd 'A' Cross,
Bhuvaneshwarinagar,
Near Goutham College,
R.T.Nagar,
Bangalore - 560 032.
... APPELLANTS
(By Shri. Padmanabha Mahale, Senior Advocate for Shri. C.M.Desai,
Advocate)
AND:
Chikkottappa,
Since dead by his
Legal Representatives are:
1. Sri. C. Munikrishna,
Son of Late Chikkottappa,
Aged about 48 years,
No.117, Jothinilaya,
Cholanayakanahalli,
Bangalore - 560 032.
2. Smt. Venkatamma,
Daughter of Late Chikkottappa,
Wife of Late Muniyappa,
Aged about 65 years,
Residing at Cholanayakanahalli,
R.T.Nagar Post,
Bangalore - 560 032.
3. Smt. Seethamma,
3
Daughter of Late Chikkottappa,
Wife of Venkataramanappa,
Aged about 50 years,
Residing at Nadavathi Village,
Kadugodi Post,
Bangalore.
4. Smt. Rajamma,
Daughter of Late Chikkottappa,
Wife of Muniyappa,
Aged about 50 years,
Residing at Boodhagere Village,
Chanrayapatna Hobli,
Bangalore Rural District.
5. Smt. Munirathnamma,
Daughter of Late Chikkottappa,
Wife of Krishnappa,
Aged about 53 years,
Residing at Cholanayakanahalli,
R.T.Nagar Post,
Bangalore - 560 032.
6. Smt. Gangamma,
Wife of Late Chikkottappa,
Aged 72 years,
No.117, Jothinilaya,
Cholanayakanahalli,
R.T.Nagar Post,
Bangalore - 560 032.
7. Sri. K.R. Verghese,
Son of Late K.R.Rajagopal,
Aged about 62 years,
Residing at No.41,
Sanaulla Layout,
4
5th Cross, Sultanpalya,
R.T.Nagar Post,
Bangalore - 560 032.
8. Smt. Shanthamma,
Wife of S. Venkanna,
Aged about 55 years,
Residing at 1st Main Road,
Bhuvaneshwarinagar,
Near Gowtham College,
R.T.Nagar Post,
Bangalore - 560 032.
9. Smt. Venkatamma,
Wife of Muniyappa,
Aged about 60 years,
Residing at 1st Main Road,
Bhuvaneshwarinagar,
Near Gowtham College,
R.T.Nagara Post,
Bangalore - 560 032.
10. Sri. Ulise Ramaraju,
Wife of Ulise Piduraju,
Aged about 55 years,
Residing at C/o. Venkataswamy,
Beglur Cross,
Dwarakanagar,
Air Force Station Post,
Yelahanka,
Bangalore - 560 064.
...RESPONDENTS
(By Shri. Jayakumar S Patil, Senior Advocate for Shri. C. Shankar
Reddy, Advocate for Respondent Nos. 1 to 6
5
Vide Court Order dated 29.3.2011, notice to respondent nos. 7 to 10
dispensed with)
*****
This Regular First Appeal filed under Section 96 of the Code
of Civil Procedure, 1908, against the judgment and decree dated
30.06.2010 passed in O.S.No.6807/1995 on the file of III Additional
City Civil and Sessions Judge, Bengaluru, decreeing the suit for
declaration.
This Regular First Appeal having been heard and reserved on
10.02.2015and coming on for pronouncement of Judgment this day,
the Court delivered the following:-
JUDGMENT
This is a defendants' appeal.
2. The parties are referred to by their rank before the trial court for the sake of convenience.
3. It was the case of the plaintiff that he was the owner of 15 guntas of land in land bearing survey No.34/4 of Cholanayakanahalli, Bangalore North Taluk, which was more fully described in the Schedule to the plaint. It was said to be the ancestral property of the plaintiff's father, Chikkavenkata. The plaintiff was said to be the adopted son of Chikkavenkata. The suit 6 property is said to have been conferred on the plaintiff under a registered Release Deed, dated 31.8.1951.
The plaintiff is said to have executed a General Power of Attorney, in the year 1981, in favour of Govinda Reddy, Kamalamma, Srinivas and Prakash Raju, jointly, authorizing them to look after the suit land. However, it was alleged that the said persons were found to be acting detrimental to his interest and the said Power of Attorney is said to have been withdrawn and cancelled in the year 1991, and the plaintiff resumed control over the land.
The plaintiff had, with a view to more fully utilize the land, had applied for and obtained an order permitting non-agricultural user of the land from the competent authority, as on 5.12.1992. He is also said to have obtained clearance from the Urban Land Ceiling Authorities, in respect of the land, as on 19.4.1993. He is said to have obtained sanction in respect of a plan to form house sites on the land, from the competent authority on 8.12.1992. It was claimed that seven house sites were formed on the said land. He is also said to have constructed a compound wall around the said sites. 7
It was claimed that the plaintiff had found that in the month of February, 1995, the defendants had surreptitiously trespassed into the property and had erected six sheds, overnight and had occupied the same. The plaintiff is said to have protested and complained to the police. But since he was directed to approach a civil court, the plaintiff is said to have filed the suit, seeking a declaration that he was the owner and seeking recovery of possession of the suit property.
Defendants 2, 4 and 6 had entered appearance and are said to have filed a common written statement and Defendant no.8 had also filed a written statement. It was consistently contended by all the said defendants that the averments in the suit were false and that there was gross suppression of facts. It was stated that Chikkahotappa, the original plaintiff no.1, who had died during the pendency of the suit, and his son Munikrishna had sold the suit property and had delivered possession to the purchasers and had executed a General Power of Attorney after receiving the entire sale consideration in favour of the purchasers. It was also candidly stated 8 that the transaction had stopped short of the due execution and registration of a formal sale deed, as there was a prohibition imposed by the State government on the sale of revenue land - converted into house sites. It was claimed that each of the defendants had purchased sites from the power of attorney holders of the plaintiffs and had been put in possession of the same and they had constructed houses and were residing there. They were paying house tax to the local authority , which had assessed the property to tax and had endorsed the occupation of the property by the respective defendants. The defendants claimed that they had been in possession and occupation of the property since the year 1981, to the knowledge of the plaintiffs and they had not raised any objection. It is only in the year 1995 that for the first time, there is a claim made under the present suit and hence the same is hopelessly barred by limitation and is liable to be dismissed on that ground alone.
On the basis of the above pleadings the trial court had framed the following issues :
9
"1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?
2.Whether defendant No.8 proves that during the year 1981, the deceased plaintiff and his son have sold the entire suit schedule property to the various purchasers as alleged?
3.Whether the suit is barred by time?
4.Whether the Court Fee paid is sufficient?
5.Whether the plaintiff is entitled for the releifs as sought?"
The trial court held Issues No. 1, 4 and 5 in the affirmative and Issues No. 2 and 3 in the negative. The suit having been decreed, as prayed for, the present appeal is filed.
4. The learned Senior Advocate Shri Padmanabha Mahale, appearing for the counsel for the appellants would contend that the very sequence of events would disclose that the plaintiffs were seeking to defeat the vested rights of the defendants seeking to take advantage of a seeming defect in their title. It is asserted that the fact of the suit properties having been handed over to four General Power of Attorney holders by the plaintiffs in the year 1981 is 10 admitted. But what had been suppressed was that the intention was to convey title and possession in respect of the suit property there- under . The said power of attorney was coupled with interest as the entire sale consideration had been paid under agreements of sale simultaneously executed. The absence of a registered sale deed was for the reason that there was a ban on registration of house sites formed on revenue land at that point of time. It is after lying low for a decade, that the plaintiffs had mischievously instituted the suit on false pleas and engineered circumstances. The plaintiffs have approached various authorities and having obtained sanctions and permissions as to the user of the suit property was only in order to lay the foundation for a false and unfair suit.
Shri Mahle would contend that the suit ought to have been dismissed on the ground of limitation alone, irrespective of the merits of the claim. The trial court had cardinally failed in its duty to address the glaring circumstances in this regard.
It is contended that the defendants would be enabled to sustain their claim to continued possession in terms of Section 53A 11 of the Transfer of Property Act, 1882 (Hereinafter referred to as the 'TP Act', for brevity). For if once possession is delivered to the transferee in part performance of contract, or if the transferee being in possession continues in possession after full payment of the consideration amount, the transferee is entitled to protect his possession against the transferor, notwithstanding that a right to seek specific performance of contract may even be barred by time. This settled legal position is not at all considered by the court below.
Further in terms of Section 202 of the Indian Contract Act, 1872 - where the agent has himself an interest in the property, which forms the subject matter of agency, the agency cannot, without any absence of any express conditions, be terminated to prejudice such interest. The principle being, when an agreement is entered into on sufficient authorization and when such authority is given for the purpose of conveying some benefit to the donee of the authority - such authority is irrevocable. Such authority, which is coupled with interest is not determined by death, insanity or bankruptcy of the principal where the agent has made advances to the principal and if 12 authorized to sell at the best price and recoup the advances made by him. Where all rights and interest along with liabilities under a contract are made over by a power of attorney, such power being an agency coupled with interest is irrevocable. It is contended that the trial court has failed to address this crucial aspect of the matter.
The learned Senior Advocate thus seeks that the suit be dismissed. And draws attention to several authorities in support of the contentions.
5. On the other hand, the learned Senior Advocate Shri Jayakumar S. Patil, seeks to justify the judgment and also refers to several authorities in support of his stand.
6. In so far as the judgment of the trial court is concerned, the primary reasoning of the court is that there is no completed transaction of sale, on the face of it, as demonstrated on the basis of admitted facts. Either with reference to the initial transaction - by the plaintiffs in favour of the vendors of the defendants, or later as between the defendants and their vendors. It is also held that the delegation of authority under the respective powers of attorney, 13 under which the defendants were claiming, is also held as being impermissible and not tenable and the suit has been, accordingly, dismissed.
In this regard, it is noticed that the Apex court has in Suraj lamp and Industries (P) Ltd. v. State of Haryana , (2009) 7 SCC 363, and in Suraj Lamp and Industries (P) Ltd. v. State of Haryana, (2012)1 SCC 656 - extensively addressed the legal effect and efficacy of transactions, whereby immovable properties are sought to be transferred by recourse to, what are termed as general power of attorney sales. 'GPA sales', as the Apex court had termed them . It was pointed out by the Apex court that there could not be a sale by the execution of a power of attorney nor could there be a transfer by the execution of an agreement of sale and a power of attorney. That a transfer of immovable property by way of sale could only be by a deed of conveyance or a sale deed. In the absence of a deed of conveyance, duly stamped and registered as required by law, no right, title or interest in any immovable property could be transferred. And that any agreement of sale would fall short of the 14 requirement of Sections 54 and 55 of the TP Act and would not confer any title nor transfer any interest in immovable property, except to the limited right granted under Section 53-A of the TP Act.
It was also pointed out that as held in the case of Rambhan Namdeo Gajre v. Narayan Bapuji Dhotra, (2004) 8 SCC 614, as follows :
"10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in to service against a third party."
Hence it would be clear that such protection is not without limitations.
In so far as the defence that the suit was barred by limitation, is concerned, it was not the case of the defendants that they were 15 claiming an interest otherwise than under an agreement of sale under which they were put in possession, albeit through a party who claimed to have derived interest from the plaintiff under a power of attorney and an agreement of sale, therefore it cannot be said that the period of limitation would run from any alleged date on which the defendants were said to have been put in possession of the suit property. It would run only from the date that the possession of the defendant became adverse to that of the plaintiffs.
Therefore in the light of the admitted facts and the established position of law, the appeal fails and is dismissed.
Sd/-
JUDGE nv* 16 ABJ:
10-03-2015 ORDER After the order is pronounced, the learned counsel for the appellants makes an oral request that the appellants may be granted time to vacate the premises.
The request of the counsel is rejected.
Sd/-
JUDGE