Bangalore District Court
Siddappa vs Munirathnamma.V on 6 February, 2017
IN THE COURT OF THE X ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY
Dated this the 6th day of February 2017
: PRESENT :
Sri B.B. Jakati, B.A., LL.B., (Spl.)
LIX Additional City Civil and Sessions Judge &
C/c of X Additional City Civil and Sessions & Judge,
Bangalore City.
O.S.No.4283/2000
PLAINTIFF: Siddappa,
S/o.Munimaregowda,
Aged about 43 years,
Residing at No.107/B,
Kothnur Village,
Harinagara,
Uttarahalli Hobli,
Bangalore South Taluk.
DEFENDANTS 1. Munirathnamma.V.,
W/o.V.Nagaraj,
Aged about 30 years,
2. V.Nagaraj,
S/o.Venkatappa,
Aged about 35 years,
3. Muralidharan,
S/o.V.Nagaraj,
Aged about 10 years,
Since Major,
Represented by his Natural
Guardian Father,
The 2nd defendant herein,
4. Basavaraju
S/o.Sadashivaiah,
Aged about 36 years,
Residing at Doddakallasandra
2 O.S.No.4283/2000
Village Kanakapura Road,
Uttarahalli Hobli,
Bangalore South Taluk.
Date of institution of the suit : 26.06.2000
Nature of the suit : Possession
Date of commencement of : 18.08.2008
recording of the evidence
Date on which the Judgment : 06.02.2017
was pronounced.
: Year/s Month/s Day/s
Total duration
16 05 10
(B.B. JAKATI)
LIX ACC & SJ & C/C OF X ACC & SJ
B'LORE.
JUDGMENT
The plaintiff has filed this suit for possession of schedule "B" property from the defendants and consequential relief of permanent injunction against all the defendants restraining them from interfering with his possession over the schedule "B" property after giving the possession.
2. The case of the plaintiff in brief is that, the property bearing No.212 of Kothanur Village, Bengaluru South taluk is totally measuring 30' X 40' which was granted to the defendant No.1 by 3 O.S.No.4283/2000 Tahsildar, Bangalore South on 30.12.1972. It has been contended that the defendant No.1 executed power of attorney in favour of Smt.K.L.Sharada and the power of attorney holder sold the property to the extent of 40' X 15' existing on the northern side of total area of 30' X 40' in favour of the plaintiff through registered sale deed dated 18.11.1999. Accordingly, the name of the plaintiff entered in the records and he is in possession of northern portion of the property. It is the allegation of the plaintiff that the defendant Nos.1 to 3 have executed another power of attorney in favour of defendant No.4 for sale of remaining portion of the above said property existing on the southern side and on the basis of such power of attorney, the defendant No.4 executed sale deed dated 19.06.2000 in favour of the plaintiff by selling southern portion of property bearing No.212 of Kothanur Village. After these two sale deeds, property No.107/A was given to the northern side property and property No.107/B was given to southern side property in site No.212. It has been contended by the plaintiff that at the time of execution sale deed dated 19.06.2000, the defendant Nos.1 to 3 were in possession of schedule "B" property and they requested 3 days to vacate the property. The defendant Nos.1 to 3 not vacated the schedule "B" property within the stipulated period and even they are not ready to hand over the schedule "B" property to the plaintiff. Therefore, the plaintiff has filed 4 O.S.No.4283/2000 this suit for possession and injunction in respect of schedule "B" property.
3. All the defendants put their appearance after service of summons. The defendant Nos.1 to 3 jointly filed their written statement. The defendant No.4 not filed the written statement within the stipulated period and his written statement, which was filed at belated stage, came to be rejected. Therefore, there is no written statement of defendant No.4 on record.
4. The defendant Nos.1 to 3 in the written statement have admitted their ownership over site No.212 of Kothanur village and they have also admitted execution of power of attorney in favour of K.L.Sharada and sale of schedule "A" property by K.L.Sharada in favour of plaintiff through sale dated 18.11.1999. The defendants have also admitted the possession and ownership of the plaintiff over the schedule "A" property.
5. The defendant Nos.1 to 3 have categorically denied the execution of power of attorney in favour of defendant No.4 and they have contended that such power of attorney has been created by the plaintiff and the defendant No.4. They have denied transfer of title over the schedule "B" property to the plaintiff through the sale deed 5 O.S.No.4283/2000 executed by the defendant No.4. On such denial, the defendant Nos.1 to 3 resisted the claim of the plaintiff over schedule "B" property and prayed to dismiss the suit with costs.
6. On the rival pleadings of the parties, the following issues have been framed:
(1) Whether the plaintiff proves that he is entitled for vacant possession of schedule "B" property from the defendant Nos.1 to 3?
(2) Whether the plaintiff proves that he is entitled for the relief of permanent injunction against the defendant?
(3) What Order or Decree?
ADDITIONAL ISSUES FRAMED ON 08.01.2015
1. Whether defendants 1 to 3 prove that GPA dated 03.10.1999 is created by the plaintiff and defendant No.4 by forging the signatures?
2. Whether plaintiff proves that he has purchased the suit schedule property under sale deed dated 19.06.2000 executed by defendant No.4 as GPA holder of defendant Nos.1 to 3?
7. In order to prove the claim, the plaintiff examined himself as P.W.1 and got marked 7 documents at Ex.P.1 to P.7. The plaintiff has also examined the Notary as CW-2. So also, the 6 O.S.No.4283/2000 defendant No.1 examined herself as DW.1 and got marked one document at Ex.D.1. The defendant Nos.1 to 3 also examined hand writing expert Dr.Kumuda Rani as CW-1 and through her documents at Ex.C.1 to Ex.C.5 came to be marked.
8. Heard arguments on the learned counsel for the plaintiff and learned counsel for the defendant Nos.1 to 3. The defendant No.4 not canvassed the argument.
9. After perusing the material on record and the submissions made by the parties, I proceed to give the findings to the above issues as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : As per final order,
Addl. Issue No.1 : In the Affirmative
Addl. Issue No.2 : In the negative
for the following:
REASONS
10. ADDITIONAL ISSUE NOS.1 AND 2 : - Both parties in the pleadings itself admitted that defendant Nos.1 to 3 were the owners of site bearing No.212 of Kothanur Village, Bangalore South Taluk and it was totally measuring 30' X 40'. They have also 7 O.S.No.4283/2000 admitted that defendant No.1 executed the power of attorney in favour of K.L.Sharada for sale of part of site No.212 and K.L.Sharada sold northern part of such property measuring 40' X 15' in favour of the plaintiff through registered sale deed on 18.11.1999. This property has been described in schedule "A" property. The defendants have admitted the ownership and possession of plaintiff over the schedule "A" property, which is part of site No.212. Absolutely, there is no dispute between the parties in respect of schedule "A" property.
11. There is serious dispute between the parties in respect of title over the schedule "A" property, which is southern part of 212 of Kothanur Village. The plaintiff is claiming his title over the schedule "B" property based on the power of attorney executed by the defendant Nos.1 to 3 in favour of defendant No.4 and also the sale deed executed by the defendant No.4 in his favour. The power of attorney is at Ex.P.7 and the copy of the sale deed is at Ex.P.3. These are disputed documents. Therefore, whether these two documents are proved in accordance with the law is the matter for consideration.
12. The defendant No.4 during the course of evidence and by giving answers to the interrogatories of the plaintiff admitted the 8 O.S.No.4283/2000 execution of power of attorney at Ex.P.7 by the defendant Nos. 1 to 3 and execution of the sale deed by him in favour of the plaintiff produced at Ex.P.3. So it is on record that the defendant No.4, who has not filed the written statement during the course of evidence, admitted the entire claim of the plaintiff over the schedule "B" property. The real dispute is in between the plaintiff and the defendant Nos.1 to 3.
13. The learned counsel for the defendant Nos.1 to 3 has argued that the power of attorney produced at Ex.P.7 required compulsory registration under section 17 of Indian Registration Act and therefore, power of attorney is not at all admissible in the evidence. To counter this argument, the learned counsel for the plaintiff has submitted that the defendant Nos.1 to 3 only authorized the defendant No.4 under Ex.P.7 to look after the schedule "B" property and to sell the schedule "B" property and therefore, such power of attorney needs no registration under law. In support of this argument, he placed reliance on the decision reported in AIR 1979 Supreme Court 553 in the case of Syed Abdul Khader V/s. Rami Reddy and others and AIR 2010 MADRAS 61 in the case of Mrs.B.Maragathamani and others V/s. Member Secretary, Chennai Metropolitan Development Authority and others. In view of these 9 O.S.No.4283/2000 submissions whether the Ex.P.7 requires compulsory registration under section 17 of Indian Registration Act is to be decided.
14. On perusal of Ex.P.7 and its contents, it is evident that defendant Nos.1 to 3 who said to be executed this deed in favour of defendant No.4 contains the recital that the owners have authorized the power of attorney to look after the schedule "B" property, to represent the owners before Government authorities for payment of water and electricity charges to receive connection and notice. Further, the owners have authorized the power of attorney holder even to sell the property. Therefore, the recital under Ex.P.7 makes clear that the executants not transferred any right, title and interest in the property shown therein in favour of defendant No.4. Therefore, the document at Ex.P.7 is not fall in any category of section 17 of Indian Registration Act. The Hon'ble Supreme Court in Syed Abdul Khader case referred above has held that the power of attorney needs no compulsory registration. Such principle has been laid down by the Hon'ble Madras High Court in the 2nd decision referred above. Therefore, having regard to the recital made in Ex.P.7 and the decision referred above, I hold that the Ex.P.7 is not required compulsory registration under section 17 of Indian Registration Act. 10 O.S.No.4283/2000 Accordingly, I hold that there is no substance in the arguments canvassed by the defendant Nos.1 to 3 in this regard.
15. Another contention raised by the counsel for the defendant Nos.1 to 3 to attack GPA at Ex.P.7 is relating to sufficiency of the Stamp Duty. This contention cannot be entertained at this stage in view of the order passed on I.A.No.23, which was filed under sections 33, 35 and 58 of Karnataka Stamp Act 1957. The court has already dealt with such issue under I.A.No.23 and pass order on 14.12.2016, such order has not been reversed or set aside by any Superior Courts. Therefore, again same contentions cannot be entertained.
16. The learned counsel for the defendant Nos.1 to 3 has argued that Ex.P.7 has been disputed by the defendants specifically and to disprove the execution of Ex.P.7, the defendants have obtained the opinion from the expert and expert has been examined. The evidence of expert has not been shaken in the cross examination and therefore, he has argued that the presumption available to Ex.P.7 has been rebutted by the defendant Nos.1 to 3 in accordance with the law. On the other hand, the learned counsel for the plaintiff has argued that under section 85 of Evidence Act, there is legal presumption to Ex.P.7, which is a power of attorney 11 O.S.No.4283/2000 regarding due execution and authentication and such presumption has not been rebutted by the defendant Nos.1 to 3. He has argued that the evidence of P.W.1 and the answers given by the defendant No.4 for the interrogatories is sufficient to prove Ex.P.7. He has argued that the opinion of the expert is not a conclusive proof regarding the handwriting appearing in Ex.P.7 and it is only opinion which can be discarded by the court. He has argued that the opinion given by the expert is not based on proper examination and therefore, prayed to reject the opinion. In support of these arguments, he placed reliance on the decisions reported in 1) AIR 2008 BOMBAY 81 in the case of Bank of India V/s. M/s.Allibhoy Mohammed and others, 2) AIR 2007 DELHI 147 in the case of Kamla Rani and others V/s. M/s.Texmaco Limited, 3) AIR 2015 SC 4486 in the case of S.P.S.Rathore V/s.C.B.I and another and AIR 1979 Supreme Court 14 in the case of State (Delhi Administration) V/s. Pali Ram.
17. In the first and 2nd decision referred above, the Hon'ble Bombay High Court and Delhi High Court have held that there is legal presumption under section 85 of Evidence Act to the power of attorneys. The Hon'ble Supreme Court in SPS Rathore case, has held that evidence of handwriting expert is only opinion evidence 12 O.S.No.4283/2000 and not conclusive. It has been further held that such opinion cannot be relied upon unless corroborated by way of direct evidence or by circumstantial evidence.
18. In view of these submissions whether there is presumption to Ex.P.7 under section 85 of Evidence Act and whether such presumption has been disproved by the defendants 1 to 3 legally is to be looked into.
19. Ex.P.7 is the power of attorney said to be executed on 03.10.1999. This is primary evidence. Under section 85 of Evidence Act, there is a presumption to Ex.P.7 in respect of due execution. Accordingly presumption is raised. In Ex.P.7, it has been shown that the defendant Nos.1 and 2 for themselves and defendant No.1 as guardian for defendant No.3 executed the power of attorney in favour of defendant No.4 and authorized the defendant No.4 to alienate the schedule "B" property. In view of this legal presumption under section 85 of Evidence Act, burden is on the defendant Nos.1 to 3 to disprove the execution of Ex.P.7.
20. In order to disprove the execution of Ex.P.7, the DW-1 has been examined, who has stated that herself and defendant No.2 not executed the power of attorney at Ex.P.7 and signatures on such 13 O.S.No.4283/2000 deed does not belongs to them. This statement of DW-1 has been denied by the plaintiff and then also, DW-1 stood for her statement. Ex.P.7 was subjected to examination by handwriting expert of FSL, Bangalore. The CW-1-Dr.Kumuda Rani is the expert, who has examined the disputed handwritings on Ex.P.7 and compared those handwriting with admitted handwritings of defendant Nos.1 and 2. She has given her report at Ex.C.1 along with reasons, enlarged photographs of disputes signatures at Ex.C.2 to Ex.C.5. The CW-1 in her evidence and also in the report has stated that she compared the handwritings appeared in Ex.P.7 along with handwritings of defendant Nos.1 and 2 appearing in vakalathnama dated 08.07.2000 and written statement dated 10.10.2000. She has also given opinion that the admitted signatures are not tallying with the disputed signatures appearing in Ex.P.7. According to the opinion of CW-1, the signatures Ex.P.7 in the name of defendant Nos.1 and 2 are not made by the defendant Nos.1 and 2. According to her opinion, the defendant Nos.1 and 2 not put their signatures on Ex.P.7.
21. CW-1 is officer working in FSL Bangalore. The court has sent the admitted and disputed signatures to her for comparison of handwriting. Accordingly, she has given her opinion along with reasons. The CW-1 was subjected to cross examined by the 14 O.S.No.4283/2000 plaintiff. In the cross examination, the plaintiff tried to show that the CW-1 has not properly examined the disputed and admitted signatures. The CW-1 has stood for her examination in chief and her opinion. There are no reasons to reject the opinion given by CW-1. In other words, the statement made by CW-1 has not been discredited in the cross examination.
22. The plaintiff called the notary, who has notarized the Ex.P.7 and he has been examined as CW-2. The Notary Sri.H.V.Mohan has stated that in his presence, the executants in Ex.P.7 have executed the power of attorney. He has stated that the Executants were identified by Sri.R.J.Solanki, Advocate. He states that defendant No.4, witness Ashwatha and Guru were also present at the time of Ex.P.7. He states that he changed his residence three times and in the transit his registers were misplaced.
23. The CW-2 in his cross examination has admitted that serial number of each document is required to be noted in the register and the same number has to be noted on the document itself. He has admitted that in Ex.P.7, there is no serial number of the register maintained by him. These two admissions given by CW- 2 are sufficient to hold that even though there was mandatory requirement to give serial number to each of the Notarized document 15 O.S.No.4283/2000 by maintaining register, the CW-2 has not given any serial number to the document at Ex.P.7 at the time of notarizing it. For a moment, if the explanation given by CW-2 about missing of register is accepted, then, also he is required to show that the serial number of register has not been shown in Ex.P.7. There is no answer with CW-2 in this regard. If really, the CW-2 notarized Ex.P.7 after producing the document by the defendant Nos.1 and 2, CW-2 ought to have taken the signature of defendant Nos.1 and 2 in his register and noted the serial number of the register in Ex.P.7. Therefore, non production of register containing the signature of defendant Nos.1 and 2 and non mentioning of register serial number in Ex.P.7 by CW-2 creates doubt about the presence of defendant Nos.1 and 2 before the Notary for execution of Ex.P.7 on 03.10.1999. Therefore, the evidence of CW-2 would not come to the aid of the plaintiff to show that the defendant No.1 and 2 were present before CW-2 for execution of Ex.P.7. On the other hand, the evidence of CW-2 is helpful to the defendant Nos.1 to 3 to establish that defendant Nos.1 and 2 were not present before the Notary and not executed Ex.P.7.
24. Ex.P.7 said to be executed on 03.10.1999. Ex.P.2 sale deed was executed on 18.11.1999 by the power of attorney holder of defendant No.1 in favour of the plaintiff in respect of schedule "A" 16 O.S.No.4283/2000 property. In Ex.P.7 while describing the boundaries of schedule "B" property towards northern side it has been shown that there is a property of Siddappa, who is the plaintiff. Admittedly, Siddappa the plaintiff purchased northern side of property under Ex.P.2 on 18.11.1999. Prior to such deed he was not in possession of northern property. Then, also in Ex.P.7 on 03.10.1999, it has been shown that there was property of Siddappa on the northern side. On comparison of Ex.P.2 and Ex.P.7, it is very clear that northern boundary shown in Ex.P.7 is not correct. Why this in correct boundary has been crept in Ex.P.7 can be easily inferred. The plaintiff and defendant No.4 intending to create Ex.P.7 in hurried manner and without noticing the sale deed at Ex.P.2 dated 18.11.1999 shown wrong boundary. This wrong boundary itself sufficient to hold that Ex.P.7 was created.
25. On 18.11.1999, the defendant No.1 sold northern portion of same property through power of attorney holder Smt. K.L.Sharada. Ex.P.7 came into existence on 03.10.1999 i.e. prior to the sale deed at Ex.P.2. The sale deed at Ex.P.3 came into existence on 19.06.2000. There is gap of about 7-8 months in between Ex.P.2 and Ex.P.3. The defendant Nos.1 to 3 were the owners of entire site bearing No.212. If really, they intending to sell 17 O.S.No.4283/2000 the entire property in favour of plaintiff or somebody through power of attorney, there was no occasion for defendant Nos.1 to 3 to execute two power of attorneys in respect of same property. For sale of such property the power of attorney executed in favour of K.L.Sharada is admitted by the defendant Nos.1 to 3. Therefore, time gap between Ex.P.2 and Ex.P.3 also indicates the creation of Ex.P.7.
26. The defendant Nos.1 to 3 have produced the copy of the sale deed dated 25.07.2002 executed by the plaintiff herein in favour of Makhar Ahmed at Ex.D.1. Under this sale deed, the plaintiff sold the property purchased by him under Ex.P.2. While describing the boundaries in Ex.D.1 towards southern side, it has been shown that there is a property bearing house list No.107/A. This property refers to schedule "B" property. This boundary has been confronted to the P.W.1 in the cross examination. The DW-1 in his cross examination has admitted that at the time of execution of Ex.D.1, the defendant No.1 was the owner of southern property in site No.212 i.e. schedule "B" property. Therefore, this southern boundary show in Ex.P.1 again show that the schedule "B" property was in the ownership of defendant Nos.1 to 3 even in the year 2002. If really the defendant Nos.1 to 3 executed Ex.P.7 and the defendant No.4 sold the 18 O.S.No.4283/2000 schedule "B" property to the plaintiff under Ex.P.3 in the year 2000, the plaintiff would not have mentioned the property owned by the defendant Nos.1 to 3 in his own sale deed at Ex.D.1. Therefore, this is another circumstances brought on record by the defendant Nos.1 to 3 to show that they have not executed Ex.P.7.
27. The plaintiff claims that after registration of the sale deed at Ex.P.2 at the request of defendant Nos.1 and 2, he has not taken the possession of the date of execution of the sale deed. This contention has not been proved by the plaintiff through proper evidence. If really there was sale transaction through power of attorney, the power of attorney or the defendant Nos.1 to 3 would have put the plaintiff in possession of the schedule "B" property. On the date of sale deed, the possession has not been handed over to the purchaser. There is abnormal circumstances in the claim made by the plaintiff regarding the possession. If really the defendant Nos. 1 to 3 sought time for handing over of the possession, their should have been some recital in the sale deed to that effect. On the contrary, there is recital in Ex.P.2 in page No.5 that possession has been handed over to the plaintiff. These circumstances also indicate that Ex.P.7 has been created.
19 O.S.No.4283/2000
28. Considering the evidence on record referred above, it is found that the defendant Nos.1 and 2 not went before CW-2 Notary public for execution of Ex.P.7. It is also found that the signatures of defendant Nos.1 and 2 are not appearing in Ex.P.7. To that effect there is corroboration through the admission made by CW-2 and P.W.1 in the cross examination referred above coupled with the opinion of the expert CW-1. Therefore, even though the opinion of CW-1 is not conclusive proof, then also her opinion has to be accepted having regard to other corroborative evidence referred above. For these reasons, I accepted the evidence of CW-1, who is expert. On the basis of this evidence, I hold that the defendant Nos.1 to 3 have successfully disproved the presumption available to Ex.P.7. Thus, I hold that the defendant Nos.1 to 3 have proved that they have not executed Ex.P.7 and it was created by the plaintiff and defendant No.4.
29. Ex.P.7 is nullity in the eye of law. Under Ex.P.7, the defendant No.4 not acquired any right to execute the sale deed. Therefore, the execution of the sale deed by the defendant No.4 in favour of plaintiff, which is produced at Ex.P.3 has no legal value. No right, title and interest in the schedule "B" property has been transferred from the defendant Nos.1 to 3 in favour of plaintiff under 20 O.S.No.4283/2000 Ex.P.2 in schedule "B" property. Therefore, the plaintiff is not the owner of schedule "B" property. Accordingly, I answer these additional issues.
30. ISSUE NO.1: The plaintiff has failed to prove his title over the schedule "B" property and he filed this suit for possession based on title. When the plaintiff has failed to prove his title, he is not entitled for possession of schedule "B" property from defendant Nos.1 to 3. Accordingly, I answer this issue in the negative.
31. ISSUE NO.2: The relief of permanent injunction sought by the plaintiff is not at all maintainable for the reason that before seeking the relief of permanent injunction in respect of schedule "B" property, the plaintiff must prove his lawful possession over such property and then interference. When he is not in possession of the schedule "B" property, there is no question of obstruction and granting of order of temporary injunction. Accordingly, I hold that the plaintiff is not entitled for permanent injunction by answering this issue in the negative.
32. ISSUE NO.3:- In view of the above discussions and my findings, I proceed to pass the following:-
21 O.S.No.4283/2000
ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
[Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me, in the Open Court on this the 6th day of February 2017].
[B.B. JAKATI) LIX ADDITIONAL CITY CIVIL & SESSIONS JUDGE & C/C OF X ADDITIONAL CITY CIVIL & SESSIONS JUDGE .
BANGALORE.
ANNEXURE
1. LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF/S:
P.W.1 Siddappa
2. LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT/S:
D.W.1 Munirathnamma
3. LIST OF COURT WITNESSES:
C.W.1 Dr.Kumuda Rani
C.W.2 H.V.Mohan
22 O.S.No.4283/2000
4. LIST OF DOCUMENTS MARKED ON BEHALF OF THE
PLAINTIFF/S:
Ex.P.1 Hakku pathra
Ex.P.2 Sale deed
Ex.P.3 Certified copy of sale deed
Ex.P.4 Receipt
Ex.P.5 Demand register extract
Ex.P.6 H.L.Extract
Ex.P.7 GPA
5. LIST OF DOCUMENTS MARKED ON BEHALF OF THE
DEFENDANT/S:
Ex.D.1 Certified copy of sale deed
6. LIST OF DOCUMENTS MARKED THROUGH COURT
WITNESS:
Ex.C.1 Opinion
Ex.C.2 Reasons
Ex.C.3 Signature
Ex.C.4 Standard signature
Ex.C.5 Signatures
[B.B. JAKATI)
LIX ADDITIONAL CITY CIVIL & SESSIONS JUDGE & C/C OF X ADDITIONAL CITY CIVIL & SESSIONS JUDGE .
BANGALORE.
23 O.S.No.4283/200006.02.2016:
Judgment pronounced in the Open Court (Vide separate detailed judgment) ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(B.B. Jakati) LIX ACC&SJ And C/c of X ACC&SJ, Bengaluru City.