Karnataka High Court
H Muniswamappa @ Appayyappa Since Dead ... vs Gowramma on 28 April, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.F.A.NO.2124 OF 2006(DEC)
C/W
R.F.A NOS.2125/2006, 2126/2006, 2127/2006 &
2128/2006
IN RFA NO.2124/2006
BETWEEN:
H MUNISWAMAPPA @ APPAYYAPPA
(SINCE DEAD BY HIS LRS)
1. SMT.GOVINDAMMA
W/O LATE MUNISWAMAPPA
AGED ABOUT 60 YEARS
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI,
BANGALORE NORTH TALUK-560092
2. SMT. SARASAMMA
W/O BEERAPPA
AGED ABOUT 45 YEARS
R/AT KONANAKKUNTE, CHUNCHAGATTA MAIN ROAD
GANAPATHI ROAD, BANGALORE-560062.
3. SMT. BHADRAMMA
W/O NARAYANAPPA
AGED ABOUT 40 YEARS,
R/O KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
2
SMT. CHANDRAMMA
W/O NAGARAJAPPA
R/AT KELAGINA THOTA, CHIKBALLAPUR,
KOLAR DISTRICT
SINCE DEAD BY LRS
4. SRI NAGARAJAPPA
S/O SRI GANGAPPA
HUSBAND OF THE LATE CHANDRAMMA
AGED ABOUT 45 YEARS
5. MISS RUPA
D/O NAGARAJAPPA
AGED ABOUT 20 YEARS
6. MISS GEETHA
D/O NAGARAJAPPA
AGED ABOUT 18 YEARS
7. MASTER GURURAJ
S/O NAGARAJAPPA
AGED ABOUT 10 YEARS
SINCE MINOR REPRESENTED BY HIS
FATHER AND NATURAL GUARDIAN MR.NAGARAJAPPA.
APPELLANT NOS.4 TO 7 ARE R/AT KELAGINATHOTA,
CHIKKABALLAPURA, KOLAR DISTRICT-5621101
8. SMT VIJAYALAKSHMI
W/O PARASHUMRAM KUMAR
AGED ABOUT 35 YEARS,
R/AT MAGADI ROAD, BANGALORE-23.
9. SMT YASHODAMMA
W/O VASANTH KUMAR
AGED ABOUT 30 YEARS,
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
3
10. SRI SHIVAKUMAR
S/O H MUNISWAMAPPA
AGED ABOUT 28 YEARS,
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
...APPELLANTS
(BY SRI.B.N.PRAKASH, ADVOCATE)
AND:
D KALLAPPA
S/O LATE DODDAMUNIYAPPA
AGED ABOUT 46 YEARS
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
...RESPONDENT
(BY SRI.S.M.CHANDRASHEKAR, SR.COUNSEL FOR
SRI.P.M.NARAYANASWAMY, ADVOCATE)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT
AND DECREE DATED 31.07.2006 PASSED IN OS.NO 9640/1998 ON
THE FILE OF THE XXVIII ADDL.CITY CIVIL JUDGE, MAYOHALL UNIT,
BANGALORE, DECREEING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCITON.
IN RFA NO.2125/2006
BETWEEN:
H MUNISWAMAPPA @ APPAYYAPPA
(SINCE DEAD BY HIS LRS)
1. SMT.GOVINDAMMA
W/O LATE MUNISWAMAPPA
AGED ABOUT 60 YEARS
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
4
YELAHANKA HOBLI,
BANGALORE NORTH TALUK-560092
2. SMT SARASAMMA
W/O BEERAPPA
AGED ABOUT 45 YEARS
R/AT KONANAKKUNTE, CHUNCHAGATTA MAIN ROAD
GANAPATHI ROAD, BANGALORE-560062.
3. SMT BHADRAMMA
W/O NARAYANAPPA
AGED ABOUT 38 YEARS,
R/O KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
SMT CHANDRAMMA
W/O NAGARAJAPPA
R/AT KELAGINA THOTA, CHIKBALLAPUR,
KOLAR DISTRICT
SINCE DEAD BY LRS
4. SRI NAGARAJAPPA
S/O SRI GANGAPPA
HUSBAND OF THE LATE CHANDRAMMA
AGED ABOUT 45 YEARS
5. MISS RUPA
D/O NAGARAJAPPA
AGED ABOUT 20 YEARS
6. MISS GEETHA
D/O NAGARAJAPPA
AGED ABOUT 18 YEARS
7. MASTER GURURAJ
S/O NAGARAJAPPA
AGED ABOUT 10 YEARS
SINCE MINOR REPRESENTED BY HIS
FATHER AND NATURAL GUARDIAN MR.NAGARAJAPPA.
5
APPELLANT NOS.4 TO 7 ARE R/AT KELAGINATHOTA,
CHIKKABALLAPURA, KOLAR DISTRICT-562101
8. SMT VIJAYALAKSHMI
W/O PARASHUMRAM KUMAR
AGED ABOUT 32 YEARS,
R/AT MAGADI ROAD, BANGALORE-23.
9. SMT YASHODAMMA
W/O VASANTH KUMAR
AGED ABOUT 28 YEARS,
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
10. SRI SHIVAKUMAR
S/O H MUNISWAMAPPA
AGED ABOUT 30 YEARS,
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
...APPELLANTS
(BY SRI.B.N.PRAKASH, ADVOCATE)
AND:
D KALLAPPA
S/O LATE DODDAMUNIYAPPA
AGED ABOUT 46 YEARS
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
...RESPONDENT
(BY SRI.S.M.CHANDRASHEKAR, SR.COUNSEL FOR
SRI.P.M.NARAYANASWAMY, ADVOCATE)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT
AND DECREE DATED 31.07.2006 PASSED IN OS.NO 9586/1998 ON
6
THE FILE OF THE XXVIII ADDL.CITY CIVIL JUDGE, MAYOHALL UNIT,
BANGALORE, DECREEING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCITON.
IN RFA NO.2126/2006
BETWEEN:
H MUNISWAMAPPA @ APPAYYAPPA
(SINCE DEAD BY HIS LRS)
1. SMT.GOVINDAMMA
W/O LATE MUNISWAMAPPA
AGED ABOUT 60 YEARS
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
2. SMT SARASAMMA
W/O BEERAPPA
AGED ABOUT 45 YEARS
R/AT KONANAKKUNTE, CHUNCHAGATTA MAIN ROAD
GANAPATHI ROAD, BANGALORE-560062.
3. SMT BHADRAMMA
W/O NARAYANAPPA
AGED ABOUT 38 YEARS,
R/O KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
SMT CHANDRAMMA
W/O NAGARAJAPPA
R/AT KELAGINA THOTA, CHIKBALLAPUR,
KOLAR DISTRICT
SINCE DEAD BY LRS
4. SRI NAGARAJAPPA
S/O SRI GANGAPPA
HUSBAND OF THE LATE CHANDRAMMA
AGED ABOUT 45 YEARS
7
5. MISS RUPA
D/O NAGARAJAPPA
AGED ABOUT 20 YEARS
6. MISS GEETHA
D/O NAGARAJAPPA
AGED ABOUT 18 YEARS
7. MASTER GURURAJ
S/O NAGARAJAPPA
AGED ABOUT 10 YEARS
SINCE MINOR REPRESENTED BY HIS
FATHER AND NATURAL GUARDIAN MR.NAGARAJAPPA.
APPELLANT NOS.4 TO 7 ARE R/AT KELAGINATHOTA,
CHIKKABALLAPURA, KOLAR DISTRICT-562101
8. SMT VIJAYALAKSHMI
W/O PARASHUMRAM KUMAR
AGED ABOUT 32 YEARS,
R/AT MAGADI ROAD, BANGALORE-23.
9. SMT YASHODAMMA
W/O VASANTH KUMAR
AGED ABOUT 28 YEARS,
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
10. SRI SHIVAKUMAR
S/O H MUNISWAMAPPA
AGED ABOUT 30 YEARS,
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
...APPELLANTS
(BY SRI.B.N.PRAKASH, ADVOCATE)
8
AND:
GOWRAMMA
W/O D.KALLAPPA
AGED ABOUT 46 YEARS
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
...RESPONDENT
(BY SRI.S.M.CHANDRASHEKAR, SR.COUNSEL FOR
SRI.P.M.NARAYANASWAMY, ADVOCATE)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT
AND DECREE DATED 31.07.2006 PASSED IN OS.NO 9530/1998 ON
THE FILE OF THE XXVIII ADDL.CITY CIVIL JUDGE, MAYOHALL UNIT,
BANGALORE, DECREEING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCITON.
IN RFA NO.2127/2006
BETWEEN:
H MUNISWAMAPPA @ APPAYYAPPA
(SINCE DEAD BY HIS LRS)
1. SMT.GOVINDAMMA
W/O LATE MUNISWAMAPPA
AGED ABOUT 60 YEARS
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
2. SMT SARASAMMA
W/O BEERAPPA
AGED ABOUT 45 YEARS
R/AT KONANAKKUNTE, CHUNCHAGATTA MAIN ROAD
GANAPATHI ROAD, BANGALORE-560062.
9
3. SMT BHADRAMMA
W/O NARAYANAPPA
AGED ABOUT 38 YEARS,
R/O KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
SMT CHANDRAMMA
W/O NAGARAJAPPA
R/AT KELAGINA THOTA, CHIKBALLAPUR,
KOLAR DISTRICT
SINCE DEAD BY HER LRS
4. SRI NAGARAJAPPA
S/O SRI GANGAPPA
HUSBAND OF THE LATE CHANDRAMMA
AGED ABOUT 45 YEARS
5. MISS RUPA
D/O NAGARAJAPPA
AGED ABOUT 20 YEARS
6. MISS GEETHA
D/O NAGARAJAPPA
AGED ABOUT 18 YEARS
7. MASTER GURURAJ
S/O NAGARAJAPPA
AGED ABOUT 10 YEARS
SINCE MINOR REPRESENTED BY HIS
FATHER AND NATURAL GUARDIAN MR.NAGARAJAPPA.
APPELLANT NOS.4 TO 7 ARE R/AT KELAGINATHOTA,
CHIKKABALLAPURA, KOLAR DISTRICT-562101
8. SMT VIJAYALAKSHMI
W/O PARASHUMRAM KUMAR
AGED ABOUT 32 YEARS,
R/AT MAGADI ROAD, BANGALORE-23.
10
9. SMT YASHODAMMA
W/O VASANTH KUMAR
AGED ABOUT 28 YEARS,
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
10. SRI SHIVAKUMAR
S/O H MUNISWAMAPPA
AGED ABOUT 30 YEARS,
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
...APPELLANTS
(BY SRI.B.N.PRAKASH, ADVOCATE)
AND:
1. D KALLAPPA
S/O LATE DODDAMUNIYAPPA
AGED ABOUT 46 YEARS
2. SMT.GOWRAMMA
W/O D.KALLAPPA
AGED ABOUT 34 YEARS
BOTH ARE R/AT KALLAPPA COLONY,
AMRUTHAHALLI VILLAGE, YELAHANKA HOBLI,
BANGALORE NORTH TALUK-92
...RESPONDENTS
(BY SRI.S.M.CHANDRASHEKAR, SR.COUNSEL FOR
SRI.P.M.NARAYANASWAMY, ADVOCATE)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT
AND DECREE DATED 31.07.2006 PASSED IN OS.NO.1222/1998 ON
THE FILE OF THE XXVIII ADDL.CITY CIVIL JUDGE, MAYOHALL UNIT,
11
BANGALORE, DECREEING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCITON.
IN RFA NO.2128/2006
BETWEEN:
H MUNISWAMAPPA @ APPAYYAPPA
(SINCE DEAD BY HIS LRS)
1. SMT.GOVINDAMMA
W/O LATE MUNISWAMAPPA
AGED ABOUT 60 YEARS
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
2. SMT SARASAMMA
W/O BEERAPPA
AGED ABOUT 45 YEARS
R/AT KONANAKKUNTE, CHUNCHAGATTA MAIN ROAD
GANAPATHI ROAD, BANGALORE-560062.
3. SMT BHADRAMMA
W/O NARAYANAPPA
AGED ABOUT 38 YEARS,
R/O KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
SMT CHANDRAMMA
W/O NAGARAJAPPA
R/AT KELAGINA THOTA, CHIKBALLAPUR,
KOLAR DISTRICT
SINCE DEAD BY HER LRS
4. SRI NAGARAJAPPA
S/O SRI GANGAPPA
HUSBAND OF THE LATE CHANDRAMMA
AGED ABOUT 45 YEARS
12
5. MISS RUPA
D/O NAGARAJAPPA
AGED ABOUT 20 YEARS
6. MISS GEETHA
D/O NAGARAJAPPA
AGED ABOUT 18 YEARS
7. MASTER GURURAJ
S/O NAGARAJAPPA
AGED ABOUT 10 YEARS
SINCE MINOR REPRESENTED BY HIS
FATHER AND NATURAL GUARDIAN MR.NAGARAJAPPA.
APPELLANT NOS.4 TO 7 ARE R/AT KELAGINATHOTA,
CHIKKABALLAPURA, KOLAR DISTRICT-562101
8. SMT VIJAYALAKSHMI
W/O PARASHUMRAM KUMAR
AGED ABOUT 32 YEARS,
R/AT MAGADI ROAD, BANGALORE-23.
9. SMT YASHODAMMA
W/O VASANTH KUMAR
AGED ABOUT 28 YEARS,
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
10. SRI SHIVAKUMAR
S/O H MUNISWAMAPPA
AGED ABOUT 30 YEARS,
R/AT KALLAPPA COLONY, AMRUTHAHALLI VILLAGE,
YELAHANKA HOBLI, BANGALORE NORTH TALUK-92
...APPELLANTS
(BY SRI.B.N.PRAKASH, ADVOCATE)
13
AND:
1. D KALLAPPA
S/O LATE DODDAMUNIYAPPA
AGED ABOUT 46 YEARS
2. SMT.GOWRAMMA
W/O D.KALLAPPA
AGED ABOUT 34 YEARS
BOTH ARE R/AT KALLAPPA COLONY,
AMRUTHAHALLI VILLAGE, YELAHANKA HOBLI,
BANGALORE NORTH TALUK-92
...RESPONDENTS
(BY SRI.S.M.CHANDRASHEKAR, SR.COUNSEL FOR
SRI.P.M.NARAYANASWAMY, ADVOCATE)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT
AND DECREE DATED 31.07.2006 PASSED IN OS.NO.11337/1998
ON THE FILE OF THE XXVIII ADDL.CITY CIVIL JUDGE, MAYOHALL
UNIT, BANGALORE, DECREEING THE SUIT FOR DECLARATION AND
POSSSESSION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.03.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
14
JUDGMENT
The captioned appeals are filed by the owners of the land in question questioning the judgment and decree passed in O.S.Nos.11337/1998, 11222/1998, 9530/1998, 9586/1998 and 9640/1998.
2. For the sake of brevity, the owners of the land will be referred as plaintiffs while the purchasers will be referred as defendants.
3. The owners of the land in question i.e., plaintiffs filed two suits seeking relief of declaration and for consequential relief of injunction. The plaintiffs filed O.S.No.11337/1998 to declare the sale deed dated 11.09.1998 executed by defendant No.2 (Gowramma) in favour of defendant No.1 (D.Kallappa) in respect of site Nos.1, 2, 20, 21 and 39 in Sy.No.137/1 as null and void and not binding on plaintiffs. The plaintiffs also filed one more suit in O.S.No.11222/1998 questioning the sale deed dated 15 29.07.1998 executed by defendant No.2 (Gowramma) as GPA holder in favour of defendant No.1 (D.Kallappa) and sale deed dated 29.07.1998 executed by defendant No.1 (D.Kallappa) as GPA holder in favour of defendant No.2 (Gowramma) in respect of site Nos.11, 12, 6, 7, 15 and 16 as null and void and not binding on plaintiffs.
4. The purchasers who are the defendants in O.S.Nos.11337/1998 and 11222/1998 also filed suits. Gowramma who is defendant No.2 in the above said suits filed suit for declaration and for consequential relief of injunction in O.S.No.9530/1998 in respect of site Nos.6, 7, 15 and 16. Similarly, defendant No.1 (D.Kallappa) also filed suits in O.S.Nos.9586/1998 and 9640/1998 seeking relief of declaration and for consequential relief of injunction.
5. In O.S.No.9586/1998, the subject matter of the suit was site Nos.11 and 12 while subject matter of O.S.No.9640/1998 is site Nos.1, 2, 20, 21 and 39. Therefore, 16 from the records, this Court would find that, in all, five suits were filed. Two suits by the owners and three suits by the purchasers. The suit filed by the plaintiffs in O.S.No.11337/1998 and suit filed by defendant No.1 in O.S.No.9640/1998 were clubbed and common evidence was recorded by the Trial Court and suit filed by the plaintiffs in O.S.No.1337/1998 came to be dismissed and suit filed by the defendants/purchasers in O.S.No.9640/1998 was decreed declaring defendant No.1 (D.Kallappa) as the lawful owner and in possession of the suit schedule property and consequently, permanent injunction was granted restraining the plaintiffs/owners from interfering with the peaceful possession and enjoyment over the suit schedule property. Against this common judgment and decree, the plaintiffs/owners have preferred two appeals. RFA.No.2124/2006 is filed questioning the judgment and decree passed in O.S.No.9640/1998 declaring the purchasers as absolute owners whereas 17 RFA.No.2128/2006 is filed questioning the judgment and decree passed in O.S.No.11337/1998.
6. The suit filed by the plaintiffs/owners in O.S.No.11222/1998 was clubbed with the suit filed by the defendants in O.S.Nos.9586/1998 and 9530/1998. All the three suits were clubbed by recording common evidence. The suit filed by the plaintiffs/owners in O.S.No.11222/1998 was dismissed whereas suit filed by the purchaser (D.Kallappa) in O.S.No.9586/1998 was decreed declaring defendant No.1 (D.Kallappa) as absolute owner of the suit schedule property. Similarly, the Trial Court also decreed the suit filed by the defendant No.2 (Gowramma) in O.S.No.9530/1998 and thereby declared the defendant No.2 as absolute owner and in possession of the suit schedule property and consequently, granted injunction against the present plaintiffs from interfering with her peaceful possession and enjoyment over the suit schedule property. Against the dismissal of the suit filed in O.S.No.11222/1998, the plaintiffs/owners preferred an 18 appeal in RFA.No.2127/2006. Against the judgment and decree passed in O.S.No.9586/1998, the plaintiffs/owners preferred appeal in RFA.No.2125/2006 and against the judgment rendered in O.S.No.9530/1998, the plaintiffs/owners preferred appeal in RFA.No.2126/2006.
7. From the records, this Court would find that all the three suits filed by the purchasers in O.S.Nos.9640/1998, 9586/1998 and 9530/1998 came to be declared declaring them as owners and consequently, the suits filed by the plaintiffs/owners in O.S.Nos.11337/1998 and 11222/1998 were dismissed. Questioning the judgment and decree passed in these five suits, the captioned appeals are filed.
8. This Court by judgment and decree dated 24.03.2009 allowed the appeals filed by the plaintiffs/owners in RFA.No.2127/2006 (arising out of O.S.No.11222/1998) and RFA.No.2128/2006 (arising out of O.S.No.11337/1998) and decreed the suits filed by the plaintiffs/owners while the 19 judgment and decree passed in three suits filed by the defendants/purchasers were set aside and the matter was remitted back to the Trial Court.
9. The defendants/purchasers, feeling aggrieved, approached the Hon'ble Apex Court and the Hon'ble Apex Court in Civil Appeal Nos.8997-9001/2013 set aside the common judgment and decree passed by this Court and the matter is remitted back to this Court for fresh consideration. After remand by the Hon'ble Apex Court, the captioned five appeals are listed for final hearing before this Court.
10. All these five appeals which are connected and are listed before this Court involve common question and the claim made by the plaintiffs/owners in O.S.Nos.11337/1998 and 11222/1998 and the counter claim made by the defendants/purchasers in O.S.Nos.9640/1998, 9530/1998 and 9586/1998 are interconnected and interlinked and therefore, 20 all these appeals are to be heard together to avoid conflicting judgments.
11. The facts leading to the case are as under:
The subject matter in all these suits is agricultural land bearing Sy.No.137/1 measuring 2 acres 30 guntas and 6 guntas of Kharab land situated at Amruthahalli Village. The plaintiffs claim that they are the absolute owners of the land bearing Sy.No.137/1 measuring 2 acres 30 guntas. It is the specific case of the plaintiffs/owners that the suit land is their ancestral property. Plaintiffs have further claimed that plaintiff No.1 formed a layout comprising of 72 sites measuring 30x40 feet. Plaintiffs have further contended that defendant No.1 Kallappa offered to assist the plaintiffs in selling the sites formed in the above said land and therefore, executed a power of attorney in favour of intending purchasers. The plaintiffs claimed that they have retained sites bearing Nos.1, 2, 6, 7, 11, 12, 15, 16, 19, 20 and 21.21
These 11 sites are the subject matter of the present proceedings.
12. The plaintiffs alleged that the present defendants on the basis of power of attorney alleged to have been executed by plaintiff No.1 have executed sale deed thereby transferring the above said sites between themselves i.e., defendant Nos.1 and 2. The plaintiffs have seriously disputed the alleged GPA executed by plaintiff No.1. The plaintiffs have further contended that having come to know of the illegal transfer, secured the certified copy of the sale deeds and were shocked to find out that defendant No.2 has executed sale deed in favour of defendant No.1 and similarly defendant No.1 has executed sale deed in favour of defendant No.2 in respect of sites stated supra. The plaintiffs have seriously disputed the alleged power of attorney. The plaintiffs claim that even otherwise the GPA as per Ex.D-14 does not transfer right and title in favour of the defendants/purchasers. The plaintiffs have contended that the properties referred to under the GPA 22 and the one sold under the sale deeds are not one and the same. The plaintiffs have further specifically contended that property shown in power of attorney dated 31.10.1986 and 14.09.1981 as per Exs.D-2 and D-3 respectively are with reference to site numbers while property sold under the sale deed dated 29.07.1998 vide Exs.D-17 and D-18, the measurements are shown in guntas and therefore, claimed that no sanctity can be attached to the sale deeds and the same would not create any right and title in favour of the defendants/purchasers.
13. The plaintiffs have also seriously disputed the authority of plaintiff No.1. The plaintiffs have claimed that suit schedule property is ancestral property and therefore, the authority of plaintiff No.1 is questioned. The plaintiffs have also seriously disputed the payment of sale consideration as shown in the affidavit/agreement of sale and these documents are seriously disputed by the plaintiffs. On these set of pleadings, the plaintiffs claim that there exists no GPA with 23 respect to suit schedule property and therefore, have sought relief of declaration to declare the sale deeds as null and void in O.S.Nos.11337/1998 and 11222/1998.
14. On receipt of summons, the defendants have tendered appearance and have countered and stoutly denied the entire averments made in the plaint. The defendants/purchasers have claimed that the plaintiffs/owners have devised the method of conveying the schedule property by executing agreement to sell coupled with GPA and also affidavit acknowledging the receipt of sale consideration. The defendants' case is that plaintiffs have adopted this method of transferring right and title as the sale of revenue sites was prohibited. The defendants/purchasers have seriously disputed the nature of the suit land. The contention of plaintiffs that it is ancestral property is stoutly denied by the defendants. The defendants claim that son of plaintiff No.1 is also arrayed as co-plaintiff with a malafide intention to overcome the genuine transaction entered into by the plaintiff No.1. The defendants 24 have claimed that suit schedule property is self acquired property and the same was granted by the then Special Deputy Commissioner for Inams in favour of plaintiff No.1 way back in 1959. The defendants/purchasers claim that plaintiff No.2 was not even born at the time of execution of several deeds and documents. The defendants have also claimed that while these transactions were entered into by the plaintiff No.1, plaintiff No.2 was minor and therefore, it is not open for the plaintiffs/owners to claim that suit schedule property is ancestral property.
15. The defendants have also placed reliance on the recitals in the agreement of sale vide Exs.P-8 and P-9 and have specifically contended that these documents clearly demonstrate that schedule land bearing Sy.No.137/1 is self acquired property and these documents came to be executed much prior to execution of GPA in favour of purchasers. Therefore, the defendants claim that plaintiffs are estopped from taking a contrary stand and thereby cannot claim that 25 suit schedule property is joint family ancestral property of plaintiff Nos.1 and 2. On these set of defence, the defendants have also claimed that plaintiffs have not approached the Court with clean hands.
16. Based on rival contentions, the Trial Court has conducted trial by clubbing O.S.No.11337/1998 with O.S.No.9640/1998 while O.S.No.11222/1998 was clubbed with O.S.Nos.9530/1998 and 9586/1998 and separate enquiry was held. The issues framed in all the suits are culled out and the same reads as under:
"Issues in O.S.No.11222/1998
1) Whether the plaintiffs prove that suit schedule properties are ancestral properties?
2) Whether plaintiffs prove that two sale deeds dt.29.7.98 in respect of suit schedule properties are null and void and not binding on plaintiffs?
3) Whether the plaintiff's prove that they are in possession of suit schedule properties?
4) Whether the court fee paid is no proper?26
5) Whether defendants prove that in pursuance of GPA executed by plaintiff No.1, sale deeds dt.29.7.98 were executed in favour of defendants?
6) What order or decree?Issues in O.S.No.9586/1998
1) Whether the plaintiff proves that suit property is identifiable?
2) Whether the plaintiff proves that he is the absolute owner of suit schedule property?
3) Whether the plaintiff proves that he is in possession of the suit property?
4) Whether the plaintiff is entitled to the relief of declaration and consequential injunction?
5) What order or decree?Issues in O.S.No.9530/1998
1) Whether the plaintiff proves that she is the absolute owner of the suit property?
2) Whether plaintiff proves that she is in possession of the suit property?
3) Whether the plaintiff is entitled to the relief of declaration and injunction sought?
4) Whether the defendant proves that the suit of the plaintiff is bad for non-joinder of Mr.Shivakumar?
5) Whether the defendant proves that the Court fee paid is not sufficient?27
6) What order or decree?Issues in O.S.No.11337/1998
1) Whether the plaintiffs prove that sy.no.137/1, measuring 2 acres 36 guntas of Amruthahalli village is ancestral property of plaintiffs?
2) Whether the sale deed dated 11.9.98 executed in favour of defendant No.1 is null and void?
3) Whether the plaintiffs prove that they are in lawful possession of suit schedule property?
4) Whether the plaintiffs prove that they defendants interfered with plaintiffs lawful possession?
5) Whether the defendants prove that defendant No.1 had a valid power of attorney?
6) Whether the defendants prove that there was a legal necessity for sale in favour of the defendant No.2?
7) Whether the court fee paid is not correct?
8) Whether the suit is bad for non-joinder of V.C.Hittalamani?
9) To what relief the parties are entitled to?
10) What order or decree?Issues in O.S.No.9640/1998
1) Whether the suit property is identifiable?28
2) Whether the plaintiff proves that defendant executed general power of attorney in favour of plaintiff wife in respect of site bearing No. 1,2,20, 21, 39 and 2 other sites for consideration of Rs.40,000/-?
3) Whether the plaintiff proves he is in possession of the suit property?
4) Whether the plaintiff proves that he is the owner of the suit property?
5) Whether defendant proves that the suit of plaintiff is bad for non-joinder of Mr.Shivakumar?
6) Whether the defendant proves court fee paid is not correct?
7) What relief parties are entitled to?
8) What decree or order?"
17. The Trial Court having assessed oral and documentary evidence led in by plaintiffs/owners and defendants/purchasers has dismissed the suit filed by the plaintiffs/owners in O.S.Nos.11337/1998 and 11222/1998 and consequently, suits filed by the defendants/purchasers in O.S.Nos.9640/1998, 9586/1998 and 9530/1998 were decreed declaring the defendants/purchasers as absolute owners and in possession of the suit property and consequently, the 29 plaintiffs are restrained by way of permanent injunction from interfering with peaceful possession and enjoyment of the defendants/purchasers over the suit lands.
18. Learned counsel appearing for the plaintiffs reiterating the grounds urged in the appeal memo would vehemently argue and contend before this Court that the measurements shown in GPAs' and in the sale deeds do not tally with each other and therefore, he would contend that plaintiffs have discharged their initial burden in establishing that the alleged GPAs' are not genuine documents and the same are concocted. Learned counsel appearing for the plaintiffs would further contend that the suit land bearing Sy.No.137/1 is ancestral property. He would also take serious objections to the reasons assigned by the learned Judge while examining the alleged GPAs' set up by defendants. He would point out that even assuming, without conceding, power of attorney came to be executed by plaintiff No.1, the measurement shown in the alleged GPA and the one shown in 30 the sale deeds are totally different and these discrepancies in the GPAs' and the sale deeds are totally discarded by the Court below.
19. Placing reliance on the principles laid down by the Hon'ble Apex Court in the case of Syed Abdul Khader vs. Rami Reddy and Others1, he would contend that power of attorney has to be strictly construed and any deviation from the power granted under the said power of attorney cannot be condoned. Therefore, placing reliance on the principles laid down by the Hon'ble Apex Court in the judgment cited supra, he would contend that no valid right and title is passed on to the defendants and therefore, the sale deeds are liable to be declared as null and void and not binding on plaintiffs. He would further point out that if the entire material on record is taken into consideration, what emerges is that plaintiffs/owners never intended to sell the lands in guntas nor it is borne out by necessary implications.
1 (1979) 2 SCC 601 31
20. On the dispute in regard to nature of the suit property involved in the present case on hand, he would point out that the lands in question are ancestral property and plaintiff No.2 has a legitimate share in the suit schedule property and therefore, alienation made on the basis of power of attorney alleged to have been executed by one co-sharer will not confer absolute title on the purchaser. Relying on Exs.D-11, D-14 and P-3 in O.S.No.11222/1998, he would submit that these documents would clearly show that suit sites are ancestral property and therefore, plaintiff No.1 had no absolute authority to execute the power of attorney. Questioning the genuineness of the transactions, he would submit to that the sale consideration was never paid by the defendants/purchasers. Referring to the cross-examination, he would contend that none of the witness to the sale deeds are examined to prove the passing of sale consideration except one witness namely Krishnappa who is a witness to Ex.P-3 in O.S.No.11337/1998. Referring to the cross- 32 examination, he would contend that even the said witness has stated nothing in regard to payment of sale consideration. Taking this Court through the cross-examination of the said witness, he would contend that the defendants have not adduced any clinching evidence evidencing the passing of valuable sale consideration.
21. Learned counsel appearing for the plaintiffs would further take this Court through the evidence of DW.2 in O.S.No.11222/1998 and submit to this Court that the above said witness credibility is rightly demolished by the plaintiffs in the cross-examination. Learned counsel would further counter the ocular evidence of signature expert. He would submit to this Court that his evidence would not inspire the confidence of the Court and the said ocular evidence would not come to the aid of the defendants to establish that disputed power of attorney were genuine and executed by late Muniswamappa. 33
22. To buttress his arguments, he would place reliance on the following judgments:
"1. Kewal Krishan Vs. Rajesh Kumar and Others - 2021 SCC Online 1097.
2. Timblo Irmaos Ltd Vs. Jorge Anibal Matos Sequeira and Others - 1977 (3) SCC 474.
3.K.V.Sudharshan Vs. A.Ramakrishnappa - (2008) 9 SCC 607 "
23. On these set of grounds, he would submit to this Court that the judgment and decree of the Trial Court rendered in the above said suits suffer from serious infirmities and therefore, would warrant interference at the hands of this Court.
24. Per contra, learned Senior Counsel Shri S.M.Chandrashekar, repelling the contentions canvassed by the learned counsel appearing for the plaintiffs would submit to this Court that the claim of plaintiffs/owners that suit schedule property is ancestral property is misconceived. The said contention is taken with oblique motive and malafide intention. He would contend that plaintiff No.2 is arrayed as 34 co-plaintiff only with an intention to defeat the rights of the purchasers. To counter the said contention, the defendants have taken trouble to establish that suit schedule property is self acquired property by securing Inams Deputy Commissioner grant order which is marked at Ex.D-1 in O.S.No.11337/1998. Relying on this clinching rebuttal evidence vide Ex.D-1, learned Senior Counsel would submit to this Court that the plaintiff No.1 was permanent tenant and therefore, grant order passed by the then Special Deputy Commissioner for Inams would in no way enure to the benefit of plaintiff No.2 who is the son of plaintiff No.1. He would contend that when occupancy rights was granted in the year 1959, plaintiff No.2 was not even born. Therefore, he would contend that the very filing of the present suits against the purchasers is an afterthought and the same are filed to make wrongful gain. He would further submit to this Court that plaintiff No.2 is consciously arrayed as a party to the present suit to nullify the valid transactions that has taken place 35 between plaintiff No.1 through GPA holder and the present defendants.
25. Learned Senior Counsel would further contend that the plaintiffs have not approached the Court with clean hands. He would contend that the plaintiffs conduct is grossly unfair and have gone to the extent of denying the very execution of GPA and have also gone to the extent of denying the very transaction made thereunder. Learned Senior Counsel would further contend that the entire material on record has to be assessed by this Court and the conduct of both the parties has to be meticulously examined. He would contend that it is not that plaintiff No.1 has sold one site in favour of defendants. The clinching evidence on record would clearly establish that plaintiff No.1 has formed a layout in Sy.No.137 and it is admitted fact that he has sold almost 60 sites and now the dispute is only in respect of remaining 11 sites. The plaintiff No.1 through his son is selectively questioning the bonafide 36 transaction entered into with the present defendants/purchasers.
26. Placing reliance on the judgment rendered by the Hon'ble Apex Court in the case of Post Graduate Institute of Medical Education and Research, Chandigarh vs. Jaspal Singh and Others2, learned Senior Counsel would contend that the lis between the parties has to be decided on the basis of preponderance of probabilities. In the light of the principles laid down by the Hon'ble Apex Court cited supra, he would contend that defendants have succeeded in placing cogent and clinching evidence and the evidence in all probability would probabalise the defence set up by the defendants. He has raised serious objections as plaintiff No.1 had not chosen to step into the witness box while he was alive for almost six years after filing of the suit and trial has commenced only after the death of plaintiff No.1. 2 (2009) 7 SCC 330 37
27. Learned Senior Counsel would then place heavy reliance on the rebuttal evidence led in by defendants. To bring home the truth, it is the defendants who have taken pain to secure the FSL report pertaining to signature of plaintiff No.1. The FSL report clearly indicates that the signatures found on the disputed documents and the one on the admitted document are one and the same and this report would clinch the entire controversy between the parties. He would conclude his arguments by contending that plaintiffs have not adduced any cogent and clinching evidence to disbelieve the due execution of sale deed under due authorisation and the alleged fraud is not established. The recitals in the registered documents (sale deeds) would bind the plaintiffs/owners and therefore, they cannot question and dispute the payment of sale consideration as reflected in the registered document.
28. Learned Senior Counsel has placed reliance on an unreported judgment rendered by the Hon'ble Apex Court in the case of V.Anantha Raju and Another vs. 38 T.M.Narasimhan and Others3. Therefore, he would contend that any contrary evidence which is in conflict with the covenants in the registered sale deeds is inadmissible in evidence in terms of Sections 91 and 92 of Indian Evidence Act. He has also placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Roop Kumar vs. Mohan Thedani4.
29. Heard learned counsel appearing for the plaintiffs and learned Senior Counsel appearing for the defendants. Perused the records. The following points would arise for consideration:
1) Whether the finding of the Trial Court that plaintiffs have failed to prove that suit schedule property is ancestral property is perverse, palpably erroneous and warrants interference at the hands of this Court?
2) Whether the finding of the Trial Court that defendants have succeeded in proving that in 3 Civil Appeal No.6469/2021 dtd: 26.10.2021 4 (2003) 6 SCC 595 39 pursuance of GPA executed by plaintiff No.1, sale deeds dated 29.07.1998 and 11.09.1998 came to be executed in favour of defendants and therefore, the sale deeds would bind on plaintiffs is perverse and palpably erroneous?
3) Whether the Trial Court was justified in declaring the defendants/purchasers as absolute owners of the sites covered under the sale deeds dated 29.07.1998 and 11.09.1998 and consequently, granting perpetual injunction against the plaintiffs/owners restraining them from interfering with peaceful possession and enjoyment of the defendants/purchasers covered under the sale deeds?
Re: Point No.1:
30. The suit land bearing Sy.No.137/1 measuring 2 acres 30 guntas was admittedly tenant land. The plaintiff No.1 was cultivating the suit land as a permanent tenant. It would be useful for this court to refer to Ex.D-1 which is the grant order and the same is culled out as under: 40
"BEFORE THE SPECIAL DEPUTY COMMISSIONER FOR...
BANGALORE.
CASE. NO. 31/58-59 PETITIONER: SRI.H. Muniswamy. Alias Appiah.
RESPONDENT: JODIDAR OF Amruthahalli village Subject : Seeking occupancy rights of lands in the above Village.
ORDER
Claim for S.No. 82/1 0-16 Rs. 3-8-0
82/3 0-07 1-8-0
128/1 0-12 1-8-0
133/ 1-06 2-0-0
134/3 1-31 3-0-0
135/2 1-11 2-4-0
137/1 2-30 5-0-0
The petitioner in this case is a permanent tenant. The definition of permanent tenant in the Inam abolition Act is wider than that in the Mysore Land Revenue code. In this case, all the conditions necessary to payment of premium as laid shown in the proviso to Sec.5 of the Act as amended by the Mysore Act. No.1 of 11959 are present and hence, premium is waived.
Dictated and typescript, edited by me.
Sd/-
(N.S. Ramachandra) Special Deputy Commissioner."41
31. Perusal of this document would clearly establish that the suit schedule property is self acquired property of plaintiff No.1. Both the parties have adduced voluminous documentary evidence to counter each other in regard to the nature of the suit schedule property. Several sale deeds, GPAs' are produced by both plaintiffs and defendants and reliance is placed both by plaintiffs and defendants to substantiate and strengthen their stand in regard to the nature of the suit schedule property. It is in this background, this Court is of the view that those documents which are relied by the plaintiffs and defendants would be of no consequence. The nature of the property has to be decided by taking note of Ex.D-1 which is the order passed by the then Special Deputy Commissioner conferring occupancy rights in favour of plaintiff No.1. If the occupancy rights was granted in favour of plaintiff No.1 pertaining to suit land way back in 1959 when plaintiff 42 No.2 was not even born, the contention of plaintiff No.2 that the suit land is ancestral property cannot be acceded to.
32. The concept of enuring for the benefit of joint family cannot be extended to the present case on hand. It is more than trite that where the original tenant dies and if one of the son files application seeking grant of occupancy rights, the other brothers can very well maintain a partition suit and claim that the occupancy rights granted in favour of their eldest brother would enure for the benefit of the joint family. This logic was devised by the Courts on the basis of rights of children of deceased tenant. If all the sons inherited tenancy rights which are ofcourse heritable, the conferment of occupancy rights in favour of one brother would enure for the benefit of all other family members. This doctrine of enuring for the benefit of joint family is extended only to those cases where the family members inherited tenancy rights. In the present case on hand, there is no material on record indicating 43 whether plaintiff No.1 for the first time was inducted as a permanent tenant or his ancestors were inducted as a tenant.
33. Be that as it may, even if plaintiff No.1 had inherited tenancy rights, he would inherit the said rights under Section 8 and his children more particularly plaintiff No.2 cannot assert any right and title over the suit land. During the lifetime of plaintiff No.1, plaintiff No.2 is not entitled for any right. The occupancy rights granted in favour of plaintiff No.1 would not enure for the benefit of the plaintiff No.2 and therefore, plaintiff No.2 cannot contend and claim that suit land is a joint family ancestral property. The occupancy rights granted to plaintiff No.1 is in his individual capacity and therefore, his children have no semblance of right during the lifetime of plaintiff No.1. Therefore, the order passed by the then Special Deputy Commissioner conferring occupancy rights vide Ex.D-1 would clinch the issue and any amount of evidence led in by plaintiff No.2 would be of no consequence and no credence can be attached to the documentary evidence 44 led in by the plaintiff No.2 to prove something contrary to what is stated in Ex.D-1. Accordingly, point No.1 formulated by this Court is answered in the negative.
Re: Point Nos.2 and 3:
34. In all these cases, plaintiff No.2 has seriously disputed the power of attorney executed by the plaintiff No.1 in favour of defendant Nos.1 and 2/purchasers. Having alleged fraud, it was incumbent on the part of plaintiff No.2 to demonstrate that the GPAs' executed by his father in favour of defendant Nos.1 and 2 thereby authorising to effect alienations under the GPAs' are tainted by fraud. Except denial of these GPAs' and disputing the payment of sale consideration under sale deeds, the plaintiffs/owners have not at all adduced any cogent and clinching documentary evidence to substantiate their claim. This Court has to also bear in mind that the material on record clearly reveals that the conduct of plaintiffs is grossly unfair. The plaintiff No.2 has 45 admitted that it is the plaintiff No.1 who has formed a layout way back in 1980-81. At para III(i) of the plaint filed in O.S.No.11337/1998, the plaintiffs have admitted in unequivocal terms that it is the plaintiff No.1 who has formed layout comprising of 72 sites measuring 30x40 feet. The plaintiffs have claimed that having sold around 60 sites, they have retained for themselves sites bearing Nos.1, 2, 6, 7, 11, 12, 15, 16, 19, 20 and 21.
35. The plaintiffs are disputing the GPAs' and consequent sale deeds on the ground that the suit land is ancestral property and under the alleged sale deeds, no sale consideration has passed. Then the next strong ground for disputing the sale deeds is the measurements as shown in the GPAs' and the sale deeds do not tally with each other. Lastly, plaintiffs contend that there exists no power of attorney with respect to schedule property and therefore, they contend that sale deeds are void. Having alleged serious allegations and 46 having disputed the GPA, it was incumbent on the part of plaintiff No.1 to enter into the witness box. It is forthcoming from the material on record that plaintiff No.1 was alive for almost six years after filing of the suit. The plaintiff No.1 has, however, managed in not entering the witness box. The plaintiff No.2 has commenced with the evidence only after the death of plaintiff No.1. Left with no choice and option, the defendants/purchasers have made all possible endeavours to substantiate their claim. At the instance of the defendants to prove the genuineness of GPA and signature of plaintiff No.1 on disputed documents sought for referring for forensic expert to compare the admitted signatures with the disputed signatures on the title documents which are the subject matter of the suit. Having secured the forensic expert report, the defendants/purchasers have examined the author of the forensic expert report as DW.5 in O.S.No.11222/1998. Nothing worth is elicited in cross-examination to discredit Ex.D-9. The expert report clearly indicates that the expert 47 having meticulously compared the questioned and standard signatures of the plaintiff No.1 and has found similarities and therefore, has opined that there are similarities observed between the questioned and standard signatures and therefore, found that they are significant and sufficient to express positive opinion regarding the authorship of questioned signatures marked at Exs.D-14(a) to D-14(e). This evidence is not at all countered by the plaintiff No.2 and no credible evidence is led in by plaintiffs to outweigh the clinching evidence adduced by the defendants/purchasers.
36. The second limb of challenge to the GPA and sale deeds at the hands of plaintiffs is that the boundaries and measurements do not tally in the GPA and the consequent sale deeds. While the measurement in GPA is shown in terms of square feet, the sale deeds are executed in terms of guntas. This Court has to bear in mind that plaintiffs have admitted in unequivocal terms at para III(i) of the plaint filed in 48 O.S.No.11337/1998 wherein plaintiffs have admitted in unequivocal terms that the sites formed by the plaintiffs are revenue sites. If the plaintiff No.1 has ventured into forming layout in an agricultural land, there are bound to be contradictions and some inconsistencies in the document entered into at the first instance and the subsequent documents. The plaintiffs/owners cannot take undue advantage of some discrepancies in the document namely GPA and the consequents sale deeds. Even if the measurements are not exactly the same, when square feet is converted into guntas, this Court on meticulous examination would find that the measurements reflected in GPAs' and the one reflected in the sale deeds are almost same and even if there is any difference, this Court would find that the said difference in measurements is negligible. It would be useful for this Court to formulate a table to reflect the extent shown in the GPA and the sale deeds.
49 TABLE-1 Site Measurement in Civil Appeal Measurem Boundaries in Boundaris in Nos. GPA Nos ent in Sale GPA Sale Deed Deed 6, 7,15 60+7/2 x 85/2 SLP Measuring East: Road East: Road & 16 5737.5 sq.ft. No.12010- 5 guntas West: Site No.8 West: O.S.No.11222/98 12014/09 (5445 sq & 14 Jayalakshmma RFA No.2127/06 C.A.No.8997- ft.) (-) North: Govt property & 9001/13 5737.5 Road North: Road O.S.No.9530/98 sq.ft.= South: Vendor South: RFA No.2126/06 292.5 sq.ft site H.Muniswamappa (less) Property 1,2,20, 50 x 70 SLP 3.2 guntas East: East: 21 3500 sq.ft No.12010- 3484 sq.ft. G.Muniswamapp G.Muniswamappa' O.S.No.11337/98 12014/09 (-) 3500 a's land s Land RFA No.2128/06 C.A No.8997- sq.ft = 16 West: Perumal's West: Peruma's & O.S 9001/13 sq.ft (less) land land No.9640/98 North: Govt North: Govt Road RFA No.2124/06 Road South: Road South: Road 39 30 x40 1200 sq.ft SLP 1.1 guntas East: Site No.40 East: O.S.No.11334/98 No.12010- (1200 sq.ft) Chikkabolappa's Chikkabolappa's RFA No.2128/06 12014/09 Site Site & C.A No.8997- West: Site West: Charle's O.S.No.9640/98 9001/13 No.38 Charle's Propery RFA No.2124/06 Propery North: North: Shivajirao's Shivajirao's property property South: Road South: Road 11 & 41+58/2x40 SLP 2 guntas East: Site No.13 East: Jayamma's 12 (1980 sq.ft) No.12010- (2178 sq.ft) West: Road property O.S.No.11222/28 12014/09 (-) 1980 North: Site West: Road RFA No.2127/06 C.A No.8997- sq.ft = 198 No.10 North: Dodda & 9001/13 sq.ft South: Road Hariyappa's O.S.No.9586/98 (more) Property RFA No.2125/06 South: Road 50
37. If this table is meticulously examined, there are absolutely no discrepancies in the boundaries. Even the difference in measurements as agreed under the GPA and one found in the sale deeds are negligible.
38. The plaintiff No.1 to overcome the restrictions and prohibitions which was prevailing at that relevant point of time wherein sale of revenue sites was under prohibition has entered into transaction with several prospective purchasers by executing GPA. The plaintiff No.1 has sold around 60 sites by executing similar GPAs'. The plaintiffs cannot pick and chose and question the transactions selectively. Having taken a contention that they have revoked the GPA in favour of defendants, no documents are placed on record. If plaintiffs have failed to adduce documentary evidence indicating that GPA was revoked, then the consequences have to follow. In absence of proof of revocation and in absence of proof that GPA was never executed, this Court would find that defendants have succeeded by adducing clinching evidence in 51 proving due execution of GPA by the plaintiff No.1 and consequent sale deeds through authorised agent. Therefore, all these sites which are subject matter of five appeals stood transferred under due authorisation and therefore defendants acquired valid right and title over the suit sites under the registered sale deeds for valuable sale consideration.
39. Though the plaintiffs have made a feeble attempt to make out a case that sale consideration was never paid, the discrepancies in regard to payment of sale consideration which is elicited in cross-examination would be of no consequence. The due authorisation and consequent execution of sale deeds stands proved by the defendants. If the due execution is proved, then the covenants in the registered documents would bind both the parties. Therefore, any amount of evidence led in by the plaintiffs/owners to contradict the covenants in the registered documents would be inadmissible in the light of Sections 91 and 92 of the Indian Evidence Act.
52
40. The plaintiffs/owners have alleged that the GPAs' are tainted with fraud. Having alleged that the general power of attorney executed by plaintiff No.1 in favour of defendant Nos.1 and 2 are not genuine documents, plaintiffs/owners were required to question the said disputed GPAs' dated 20.01.1989, 14.09.1981 and 31.10.1986 executed by plaintiff No.1 in favour of defendant Nos.1 and 2. Though fraud is alleged, these GPAs' are not at all challenged in the present suits. It is trite law that general allegations of fraud, however strong the words in which they are stated may be, if unaccompanied by particulars are insufficient to amount to an averment of fraud and therefore, Court cannot take cognizance of such bald allegations made in the plaint. Allegations of fraud must be substantially proved by the party making the same though it does not mean that every, puzzling artifice or contrivance resorted to by the opposite party, should be unraveled. Order 6 Rule 4 of CPC makes it incumbent upon a party to highlight all particulars necessary 53 to substantiate contentions regarding misrepresentation, fraud, etc. Therefore, the plaintiffs in the present case on hand cannot shirk that responsibility and shelve it to be adduced in evidence at later stage. If the pleadings are vague and not specific, no amount of evidence can salvage the position. As stated supra, the plaintiffs have only questioned the sale deed dated 11.09.1998 executed by defendant No.2 in favour of defendant No.1 pertaining to site Nos.1, 2, 20, 21 and 39. Similarly, the plaintiffs have also challenged the sale deed executed by defendant No.2 in favour of defendant No.1 under sale deed dated 29.07.1998 in respect of site Nos.11 and 12 and sale deed dated 29.07.1998 executed by defendant No.1 in favour of defendant No.2 in respect of site Nos.6, 7, 15 and 16. Therefore, this Court is of the view that without questioning the general power of attorney executed by plaintiff No.1 in favour of defendant Nos.1 and 2, the present suit seeking relief of declaration questioning the sale deeds is not maintainable.
54
41. The defendants/purchasers have succeeded in establishing their title and they have also succeeded in proving that there was a valid transaction between plaintiff No.1 and defendants. They have also succeeded in establishing that there was due authorisation in favour of defendants by plaintiff No.1 and therefore, this Court on meticulous examination of evidence on record, is of the view that the power of attorney dated 20.01.1989 in respect of site Nos.1, 2, 20 and 21 in favour of defendant No.2, GPA dated 14.09.1981 in respect of site Nos.6, 7, 15 and 16 in favour of defendant No.1 and GPA dated 31.10.1986 in respect of site Nos.11 and 12 in favour of defendant No.2 are held to be valid and the consequent sale deed executed by defendant No.2 in favour of defendant No.1 under sale deed dated 29.07.1998 in respect of site Nos.11 and 12 and sale deed dated 29.07.1998 executed by defendant No.1 in favour of defendant No.2 in respect of site Nos.6, 7, 15 and 16 and the sale deed executed by defendant No.2 in favour of defendant No.1 dated 11.09.1998 in respect 55 of site Nos.1, 2, 20, 21 and 39 are held to be valid transactions and there is transfer of right and title under the said documents.
42. In view of the aforesaid findings, point No.2 is answered in the negative and point No.3 is answered in the affirmative.
Conclusions:
43. In view of the aforesaid findings, this Court would concur with the findings recorded by the Court below in all these five suits. The findings recorded by the Trial Court to the effect that defendants/purchasers have succeeded in proving that plaintiff No.1 has executed power of attorney in favour of defendants is in accordance with law and based on rebuttal evidence led in by defendants/purchasers. The findings recorded by the Trial Court in clubbed suits bearing O.S.Nos.9586/1998 and 9530/1998 in recording a categorical finding that defendants/purchasers have succeeded in establishing their title over the suit schedule property and 56 finding recorded in O.S.No.11222/1998 that plaintiffs/owners have failed in proving that suit schedule property is ancestral property is based on legal evidence led in by the defendants/purchasers. The said findings does not suffer from any infirmities. This Court does not find any error committed by the learned Judge while answering the issues framed in all the five suits. The plaintiffs/owners have not succeeded in establishing that the findings arrived at by the Trial Court suffers from any infirmities. The grounds urged in all the five appeals would not displace the conclusions and findings arrived at by the learned Judge in all the five suits.
44. For the foregoing reasons, I pass the following:
ORDER The appeals are dismissed. Draw the decree accordingly.
Sd/-
JUDGE CA