Karnataka High Court
H. Bashir Khan S/O Late Hafeez Khan vs Shivarudraiah S/O Siddappa Dead By Lrs on 17 September, 2012
Author: S.Abdul Nazeer
Bench: S. Abdul Nazeer
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE S. ABDUL NAZEER
REGULAR SECOND APPEAL NO.24/2010 (DEC-INJ)
BETWEEN :
Sri. H. Bashir Khan
S/o. late Hafeez Khan
Aged about 60 years
Now r/a. I Main, Jyothinagar
Tumkur ... APPELLANT
(By Sri: D.R. Anandeeswar, Adv.)
AND :
1. Shivarudraiah
S/o. Siddappa
Since dead by his L.Rs.
a) Rathnamma
W/o. late Shivarudraiah
Aged 50 years
b) Shivagangaiah
S/o. late Shivarudraiah
Aged 24 years
c) Raveesh
S/o. late Shivarudraiah
2
Aged 22 years
d) Manjunath
S/o. late Shivarudraiah
Aged 20 years
All are r/a. Rangapura Village
Kasaba Hobli
Tumkur Tq: 571 202
2. Sri. S. Vijay Kumar
S/o. U. Subba Rao
Aged about 50 years
R/a. Supritha Nilaya
Shivarudraiah Compound
Sira Gate, Tumkur
3. Sri. Rajanna
S/o. Nanjaiah
Aged about 50 years
R/o. Rangapura Village
Kasaba Hobli
Tumkur Tq: 571 202 ... RESPONDENTS
(By Sri: Jayakumar S Patil, Senior Counsel
and Sri. H.R. Chandrakanth Patel, Adv.
for M/s. Jayakumar S. Patil Assts., Advs.
for R-1(a) to R-1(d)
R-2 and R-3 served)
This RSA is filed under section 100 of CPC praying to
set aside the judgment and decree dated 15.10.2009 in R.A.
No.332/2008 on the file of the Presiding Officer, Fast Track
Court - II, Tumkur, etc.
This appeal coming on for Hearing this day, the Court
delivered the following:
3
JUDGMENT
This appeal is directed against the judgment and decree dated 15.10.2009 in R.A. No.332/2008 on the file the Second Fast Track Court, Tumkur, confirming the judgment and decree dated 31.7.2006 in O.S. No.90/2001 on the file of the Principal Civil Judge (Jr.Dn.) and JMFC, Tumkur.
2. The appellant is the 1st defendant in the suit. Respondent No.1 is the plaintiff and respondent Nos.2 and 3 are defendant Nos.2 and 3. The plaintiff-Shivarudraiah died during the pendency of the suit. Therefore, his legal representatives have been brought on record. Shivarudraiah filed the above suit for declaration that the general power of attorney dated 26.12.1990 executed by him is a fraudulent document and the sale if any made by the 1st defendant in pursuance of the said power of attorney is not binding on him and for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit schedule 4 property. It is contended that the 1st defendant has approached Shivarudraiah in the year 1990 for purchase of the suit schedule property measuring 1 acre 28 guntas and that the 1st defendant has agreed to sell western portion of the said property measuring 1 acre for sale consideration of `.40,000/-. Thereafter, an agreement to sell was entered into between Shivarudraiah and the 1st defendant on 26.12.1990 by retaining the eastern portion measuring 28 guntas of land including the residential house. The 1st defendant insisted Shivarudraiah to execute the general power of attorney in respect of the aforesaid one acre of land. Since Shivarudraiah reposed confidence in the 1st defendant, he executed general power of attorney in respect of one acre of land on the western side of the suit schedule property. However, the 1st defendant illegally formed a layout and went on selling the sites even in the portion retained by him measuring 28 guntas. Therefore, Shivarudraiah cancelled the said power of attorney and notified the same to the 1st defendant through the notice dated 28.4.2000. It is further contended that the 1st 5 defendant has obtained several signatures on the blank paper from Shivarudraiah with an intention to defraud him. The 1st defendant has cheated the plaintiffs and has illegally sold a portion of the suit schedule property under the guise of the fraudulent power of attorney.
3. The 1st defendant filed written statement denying the plaint averments. On the basis of the pleadings of the parties, the trial Court has framed the following issues:
" 1. Whether the plaintiff proves that general power of attorney dated 26.12.1990 is a fraudulent ?
2. Whether the plaintiff further proves that the sale made by the first defendant in respect of portion of schedule property is not binding on him ?
3. Whether the plaintiff proves his possession over the suit schedule property as on the date of suit ?
4. Whether the plaintiff proves the interference by the defendants ?
5. What order or decree ? "6
4. The plaintiff - Shivarudraiah got examined himself as P.W.1 and in support of his case, a witness was examined as P.W.2. The documents at Exs.P.1 to P.18 have been marked in his evidence. Defendant No.1 got examined himself as D.W.1 and the documents at Exs.D.1 to D.4 have been marked in his evidence.
5. The trial Court on appreciation of the oral and documentary evidence on record has decreed the suit in the following terms:
" It is hereby declared that the general power of attorney dated 26.12.1990 is a fraudulent in respect of sale if any made by defendant No.1 in the portion of the suit schedule property i.e., 0-28 guntas of land of Sy. No.1/6 of Rangapura Village is not binding on the plaintiff and also the defendants are permanently restrained from interfering with the plaintiff's peaceful possession and enjoyment of the said suit schedule property."7
6. Feeling aggrieved, defendant No.1 filed an appeal in R.A. No.332/2008 before the First Appellate Court. The First Appellate Court has dismissed the said appeal on 15.10.2009. The 1st defendant has challenged the said judgment and decree in this appeal.
7. At the time of admission of this appeal, this Court has framed the substantial questions of law as under:
" 1. Whether the First Appellate Court was justified in not considering the act of plaintiffs in canceling the GPA, when already portions of the property are agrees to be sold by the 1st defendant to the knowledge of the plaintiff exercising the power under the GPA in favour of the 3rd parties is proper ?
2. Whether First Appellate Court was justified in not considering the admission of P.W.1 in regard to the agreement of sale by the 1st defendant in favour of the 3rd party in regard to a portion of the plaint schedule property ? "
8. Learned Counsel for the appellant would contend that the suit filed by the plaintiffs is for declaration that the 8 power of attorney dated 26.12.1990 (Ex.D.1) is a fraudulent document. There is no proper pleading to this effect in the plaint. The plaintiffs have let in evidence in support of their contention narrating the events that have taken place pursuant to the execution of the power of attorney. It is argued that Shivarudraiah had authorised the 1st defendant to deal with the property measuring 1 acre 28 guntas and not in respect of 1 acre as contended by the plaintiffs. Though proper issues have been framed, the trial Court has not appreciated the evidence of the parties properly. In fact, no evidence has been let in to show that Ex.D.1 is a fraudulent document. The First Appellate Court has not appreciated the evidence of the parties. The First Appellate Court being a final Court of law and fact, ought to have discussed the entire evidence of the parties while coming to the conclusion that the judgment and decree of the trial Court is proper.
9. Learned Counsel for the respondents has sought to justify the impugned judgment and decree. 9
10. As noticed above, the suit filed by the plaintiffs is for declaration that the general power of attorney dated 26.12.1990 is a fraudulent document. The deceased Shivarudraiah got examined himself as P.W.1 and a witness was examined as P.W.2. The 1st defendant has also let in his evidence in support of his contention. The trial Court ought to have considered as to whether the document at Ex.D.1 is a fraudulent document or not. Order 6 Rule 4 of CPC states that in all cases, in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars shall be stated in the pleading. The Courts below have not recorded a finding as to whether there is a pleading in accordance with the said rule. The trial Court ought to have appreciated the evidence of the parties. Absolutely, there is no clarity in the judgment of the trial Court. It is well settled that a first appeal has to be decided on facts as well 10 as on law. In the first appeal, parties have the right to be heard both on questions of law as also on facts and the First Appellate Court is required to address itself to all issues and decide the case by giving reasons.
11. Section 96 of the Code provides the right of an appeal. Order 41 Rule 31 of the Code provides guidelines for the Appellate Court as to how it has to proceed and decide the appeal. The First Appellate Court should independently assess the relevant evidence on all the important aspects of the case and record findings on the points raised for consideration. Being the final Court of facts, the First Appellate Court must assign reasons for its decision on the point/s which have been formulated for consideration. The first appeal being a valuable right and the parties having been conferred with right to be heard both on questions of fact and law, the judgment in the first appeal must address all the issues of law and fact and decide the appeal by giving reasons in support of the findings.
11
12. Perusal of the judgment of the First Appellate Court would indicate that the First Appellate Court has not decided the appeal as per the guidelines contained in Order 41 Rule 31 of CPC. None of the relevant aspects of the matter have been noticed. I am of the view that the First Appellate Court has to reconsider the matter in the light of the observations made above.
13. In the result, the appeal succeeds and it is accordingly allowed. The judgment and decree dated 15.10.2009 in R.A. No.332/2008 on the file of the Second Fast Track Court, Tumkur, is hereby set aside. The matter is remitted back to the First Appellate Court for fresh disposal in accordance with law and in the light of the observations made above. No costs.
Sd/-
JUDGE.
Cs/-