THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 29.03.2011 PASSED IN R.A.NO.599/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACT COURT - II, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:10.10.2006 PASSED IN O.S.NO.215/2004 ON THE FILE OF THE V ADDL. FIRST CIVIL JUDGE (JR.DN), MYSORE.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This is the 1^st defendant’s appeal being aggrieved by the Judgment and decree of concurrent findings recorded by the Trial Court as well as the first appellate court. Parties shall be referred to as per the status of rank before the Trial Court.

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Brief Facts of the case- It is the case of plaintiff that originally suit schedule property belonged to one Narayana,

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who is none other than first defendant, who was allotted the said property by Mysore Urban Development Authority (for short MUDA). The first defendant had executed General Power of Attorney in favour of second defendant Smt.Nagalamba on 29.08.1994 by conferring absolute power of alienation, sale or otherwise to deal with the suit schedule property. Based on the said registered General Power of Attorney, suit schedule property came to be sold vide registered sale deed dated 17.10.1994 in favour of the 3^rd defendant, who is none other than the husband of the 2^nd defendant. On the strength of registered sale deed, 3^rd defendant executed registered sale deed on 04.01.2001 in favour of plaintiff for valuable consideration of Rs.1,65,000/- (Rupees One lakh sixty five thousand only) putting the plaintiff in peaceful possession and enjoyment of the suit schedule property.

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On 03.05.2003 the 1^st defendant got issued legal notice to the plaintiff which triggered filing of the suit by the plaintiff against the defendants. The 4^th defendant is a Co-operative Bank, which is made a party to the proceedings for the reason that the 1^st defendant had allegedly obtained a loan.

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It is the case of plaintiff that by virtue of registered sale deed executed by the 3^rd defendant, the plaintiff is in peaceful possession and enjoyment of suit schedule property. The contention raised by the first defendant in the legal notice is to the effect that he had raised loan from defendant No.4Bank, which was disputed by the plaintiff stating that any such loan obtained by the 1^st defendant could not bind the plaintiff, as plaintiff had already secured ownership by virtue of sale deed in respect of suit schedule property. Hence, the plaintiff filed suit for declaration that the loan lent by the 4^th defendant does not bind the plaintiff and for the consequent relief of permanent injunction protecting the plaintiff with peaceful possession and enjoyment of suit schedule property or forcibly dispossessing him from suit schedule property.

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On service of notice to the defendants the 1^st defendant filed written statement in which he contended that he is still the absolute owner of the suit schedule property and that he never executed General Power of Attorney in favour of 2^nd defendant, it was executed in favour of 3^rd defendant which has been misused by the defendants and have colluded by manipulating the GPA and fraudulently sold the property to

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plaintiff. He has created mortgage by deposit of title deeds with the 4^th defendant-Bank.

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2^nd and 3^rd defendants filed a common written

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statement admitting that originally 1^st defendant was the owner of the suit schedule property and on the basis of the General Power of Attorney, 3^rd defendant sold the suit schedule property in favour of the plaintiff. In fact, these defendants Nos.2 and 3 have supported the case of the plaintiff and prayed for dismissal of suit.

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4^th defendant filed the written statement stating that was not aware of sale transaction of 3^rd defendant and the plaintiff, but has stated that at the time of availing the loan, the 1^st defendant had claimed that he had lost the original documents and despite his best efforts, he was unable to trace them. Based on the newspaper publication, with regard to the loss of documents, 4^th defendant released the loan in favour of 1^st defendant. It is further claimed that in view of default in payment of the loan by defendant No.1, notice was issued by 4^th defendant to 1^st defendant. On the basis of these pleadings, the trial Court framed the following issues:

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“1. Whether the plaintiff proves that, he is the absolute owner of suit schedule property?

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2. Whether the plaintiff proves that, at the time of purchase of the suit schedule property, the plaintiff was given all the original documents pertaining to the suit schedule property?

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3. Whether the first defendant proves that, he is the owner of suit schedule property?

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4. Whether the plaintiff is entitled for the relief of declaration?

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5. Whether the plaintiff proves that, he is in lawful possession and enjoyment of the suit schedule property as on the date of the suit?

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6. Whether the plaintiff proves any interference from the defendant over the suit schedule property?

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7. Whether the plaintiff is entitled for the relief of permanent injunction?

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8. What order or decree?

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Additional issue framed on 27.01.2005

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1. Whether the 2^nd and 3^rd defendants are entitled for the counter claim as prayed in their written statement?

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In order to prove the case, the plaintiff got examined himself as PW1 and closed the case. Thereafter the defendants got examined 3 witnesses including 1^st defendant as DWs-1 to 3 and got marked documents as per Ex.D-1 to D-28 and closed their case. On the basis of the material evidence both oral and documentary, the Trial Court decreed the suit of the plaintiff and held that the loan transaction of defendant No.1 is not binding on the plaintiff on the suit schedule property and an order of injunction was granted in favour of plaintiff restraining the defendants from interfering with peaceful possession and enjoyment of suit schedule property and an order restraining forcible dispossession by way of permanent injunction.

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Aggrieved by the said judgment and decree the 1^st defendant filed appeal before the first appellate Court and on consideration of the evidence both oral and documentary on re-appreciation of the same, the First Appellate Court held that the 1^st defendant has not proved the transaction between himself and bank to be binding on the plaintiff and in the first appeal, the 1^st defendant, has not made defendants Nos.2 and 3 as parties to the proceedings, having come to the conclusion that the plaintiff has proved his right with regard to suit

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schedule property, the first appellate Court dismissed the appeal of the 1^st defendant and confirmed judgment and decree passed by the Trial Court.

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It is this Judgment of the First Appellate Court confirming the Judgment of trial Court which is passed against the 1^st defendant that is laid in challenge in the second appeal.

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Heard Sri.Lokesh, leaned counsel appearing on behalf of the appellant and Sri.Sagar.B.B, learned counsel appearing on behalf of Satish Dodmani.

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It is the contention of the learned counsel for the appellant defendant No.1 that the Power of Attorney which was executed by the 1^st defendant was not in favour of 2^nd defendant, but it was in favour of 3^rd defendant. The same has been misused by the 2^nd and the 3^rd defendant and fraudulently executed the sale deed in favour of the plaintiff. It is admitted fact that MUDA had allotted property in favour of the 1^st defendant. Learned counsel further contended that the 2^nd and 3^rd defendants have deliberately not produced General Power of Attorney and have played fraud on the Court. He further contends that in cross examination of PW-1, he admitted that the legal notices was issued as per Ex.D-6 by 1^st defendant, thereby in reply he also admits that the 1^st defendant was the

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original owner of the suit schedule property. It is his further contention that both the Courts have not considered the merits of the case by not properly appreciating the evidence judgment is passed, thereby resulting in miscarriage of the justice to the 1^st defendant.

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Per contra learned counsel for the respondentplaintiff contends that by virtue of registered GPA, the 2^nd defendant got registered the property in favour of the 3^rd defendant and thereafter on 04.01.2001 registered sale deed has been executed in favour of plaintiff. It is the legal notice dated 03.05.2015 Ex.P18, which led the plaintiff to file the suit against the defendants. He contends that there is no dispute with regard to 1^st defendant being the original owner of the suit schedule property. By virtue of sale deed dated 04.01.2001, plaintiff has become the absolute owner of the suit schedule property. He contends that any transaction prior to that by the 1^st defendant with the bank, would not be binding on the plaintiff. After considering oral evidence and documents placed on record, the Courts below have rightly come to the conclusion and decreed the suit in favour of the plaintiff.

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Before considering the aspects of merits of the case, it is necessary to understand the scope of Section 100 of Code

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of Civil Procedure. As per Section 100 of Code of Civil Procedure, the jurisdiction of the High Court is limited on the substantial question of law which would have to be formulated by the appellant at the time of filing the appeal. It is within jurisdiction of this Court under Section 100 of Code of Civil Procedure to interfere with the findings of the case or to reappreciate the evidence on the substantial question of law to be made out. Primarily the appellant i.e. the 1^st defendant will have to show this Court, that there is substantial question of law which has been ignored by both the Courts, only then there will be interference by this Court to deal with substantial question of law. Admittedly, in the present case on hand, according to the findings of Courts and on the basis of the facts which are proved against the 1^st defendant and in favour of the plaintiff. It is not enough for the 1^st defendant just to say that there is substantial question of law arising merely stating that he had not executed General Power of Attorney in favour of the 2^nd defendant and defendant nos.2 and 3 have played fraud by executing sale deed in favour of the plaintiff. It is still a settled law that under Section 100 of Code Of Civil Procedure, this Court cannot reverse concurrent findings of facts on the ground that there could be another view possible apart from the views

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expressed by both the Courts below. In the present case on hand to point out substantial question of law involved in the case there must be foundation laid by 1^st defendant and show that findings recorded by both the Courts are either without appreciating material evidence or on a wrong appreciation or that the material evidence has blatantly been ignored which would be a substantial question of law.

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Keeping the above legal provisions in mind and on analysis of present appeal, it is seen that admittedly the 1^st defendant was the original owner of the suit schedule property. On the strength of the power of attorney executed by the 1^st defendant in favour of the 2^nd defendant, registered sale deed came to be executed in favour of 3^rd defendant on 17.10.1994 and thereafter on basis of the said deed, 3^rd defendant executed registered sale deed in favour of plaintiff on 01.04.2001, on the basis of which plaintiff has been in peaceful possession and enjoyment of suit schedule property. These are all admitted facts and the same is not denied by the 1^st defendant, except to the fact that he had not executed GPA in favour of 2^nd defendant and fraud has been played by 2^nd and 3^rd defendant in execution of the sale deed in favour of the plaintiff. Apart from merely making such a statement of

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allegation of fraud, no material has been produced by the 1^st defendant to prove his case. It is also seen that 1^st defendant has not made counter claim nor filed any suit till date against the plaintiff or against 2^nd and the 3^rd defendants with regard to the fraud played or for cancellation of the said sale deed.

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When this being the case, the finding recorded by both the Courts below on the basis of the material facts cannot be found fault. It is also to be noted that the substantial question of law that needs to be decided is on the basis of question of law that arises and not on the basis of the mere contention not supported by evidence. It is the scope of Section 100 of Code of Civil Procedure and law settled by judgment of Hon’ble Apex Court.

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Having perused the entire materials and original documents on record, learned counsel for the 1^st defendant relies upon judgment of Apex Court in Suraj Lamp and Industries Pvt. Ltd and V/s State of Haryana and another reported to impress upon the Court with regard to power of attorney pointing out para 16 of the said judgment.

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Perused the same, I do not find fault in the facts and consideration of the case. Neither the 1^st defendant nor

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others have produced General Power of Attorney before any of the Courts. Neither of them have challenged the execution of General Power of Attorney. However, such factual aspects cannot be considered by this Court in the second appeal under Section 100 of Code of Civil Procedure. The present case on hand does not throw up the substantial question of law to be considered by this Court. As such I do not find any merit to interfere with the judgment passed by both the Courts below, since no substantial question of law arises. I do not find it appropriate to admit the matter

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Accordingly, I proceed to pass the following;

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ORDER.

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1. The appeal is dismissed .

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2.. Parties shall bear their own cost.

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Sd/JUDGE

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GVP

Narayana v. N Deepak

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