Dismissed

Sri B Sreenivasalu Reddy v. Smt Kuttiammal

Karnataka HC4 Aug 2023RFA/1252/2017

Case brief

AI extract

What is this about?

Appeal against a trial court decree declaring the respondent owners of a property and ordering possession is dismissed. The High Court held a General Power of Attorney and related sale deed were forged involving a fictitious person, thus the trial court correctly decreed in favour of the plaintiffs' owners.

What did the court decide?

Appeal dismissed; Impugned judgment and decree of the Trial Court allowing the suit and granting possession and injunction affirmed.

Sri B Sreenivasalu Reddy Vs Smt Kuttiammal — Cheating and Forgery | Karnataka HC (2023)

¶1

¶2

R.F.A.No.1252 of 2017

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF AUGUST, 2023

¶4

BEFORE

¶5

THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY REGULAR FIRST APPEAL NO.1252 OF 2017 (DEC-POS)

¶6

Between:

¶7

1. Sri. B. Sreenivasalu Reddy Aged about 54 years, W/o. Sri.M. Pulla Reddy, R/at No.27/36/1, 3^rd Floor, 10^th ‘C’ Main Road, 1^st Block, Jayanagar, Bangalore -560 011.

¶8

1. Sri. V.O. Ashfaque Ahmed, Aged about 54 years, S/o. V.O. Mohd. Rehatulla, Residing at No.8, Alfert Street, Richmond Town, Bangalore -560 025.

¶9

1. Smt. Roshan, Aged about 45 years, D/o. Late Mohammed Ghousepheer, R/at no.34, 12^th Main, 4^th block, Jayanagar, Bangalore -560 011.

¶10

Sri. K. Papaiah Setty, Aged about 60 years, S/o. K.L. Rathnaiah Setty, R/at no.169-H, 3^rd Floor, Auto Towers, No.9, J.C. Road, Bangalore -560 002.

¶11

…Appellants

¶12

(By Sri. B.N. Jayadeva, Advocate)

¶13

And:

¶14

Smt. Kuttiammal, w/o. late Sri. Pachappachari, Since deceased by her Legal representatives

¶15

¶16

R.F.A.No.1252 of 2017

¶17

Sri. P. Kuppuswamy, Aged about 75 years, S/o. late Smt. Kuttiammal,

¶18

Smt. Manonmani, Aged about 65 years w/o. Sri. P. Kuppuswamy,

¶19

Smt. K. Parvathi, Aged about 48 years, D/o. Sri. P. Kuppuswamy,

¶20

Smt. K. Nalini, Aged about 46 years, D/o. Sri. P. Kuppuswamy All are at No. 2443, 10^th Main, ‘D’ Block, 2^nd Stage, Rajajinagar, Bangalore -560 010.

¶21

Sri. Purushothama Naidu Aged about 57 years, s/o. Nageshalu Naidu, ‘Upkar’ No.676, 36^th Cross, 5^th Block, Jayanagar, Bangalore -560 041.

¶22

6 Sri. R. Ramaiah, Aged about 85 years, S/o. Narasappa, No.66, 17^th Main, II Cross, Vijayanagar, Bangalore -560 040.

¶23

7 Sri. A. Shami Khan, Aged about 61 years, S/o. A. Rahim Khan, No.676, 46^th Cross, V Block, Jayanagar, Bangalore -560 041.

¶24

8 Sri. A. Jayakumar, Aged about 44 years, S/o. N.N. Naidu, R/at no.334, III Main, IVth Phase, J.P. Nagar, Bangalore -560 078.

¶25

¶26

R.F.A.No.1252 of 2017

¶27

9 Sri. R.V. Sai Prasad, Major, S/o. R.V. Venkateshaiah, No.334, III Main, IV Phase, J.P. Nagar, Bangalore -560 078.

¶28

10 Sri. B. B. Rami Reddy, Aged about 54 years, s/o. B.V. Subba Reddy, No.2007A, South End ‘E’ Road, IX Block, Jayanagar, Bangalore - 560 069.

¶29

…Respondents

¶30

(By Sri. N. Bayya Reddy, Advocate for R1 and C/R2-R4; R7-9 served; R5, 6 and 10 service held sufficient v/o. dt.22.10.2021)

¶31

This Regular First Appeal is filed under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure, 1908 praying to call for the records in O.S.No.7202/1998 on the file of the Hon’ble III Addl. City Civil and Sessions Judge at Bengaluru City (CCH-25) and set aside the Judgment and Decree 30.03.2017 passed therein and dismiss the suit and allow this Appeal with costs and grant such other reliefs as deemed in the circumstances in the ends of justice and equity.

¶32

This Regular First Appeal having been heard through physical hearing/video conferencing hearing and reserved on 07.07.2023 , coming on for pronouncement of judgment, this day, the Court delivered the following:

¶33

J U D G M E N T

¶34

The defendants no.7, 8, 9 & 10 respectively in the trial

¶35

Court have filed the present appeal. The present respondents herein as plaintiffs had instituted a suit against the sole defendant (later numbered as defendant no.1), in O.S.No. 7202/ 1998, in the Court of the learned III Additional City Civil and Sessions Judge (CCH-25), Bangalore (hereinafter for brevity

¶36

¶37

R.F.A.No.1252 of 2017

¶38

referred to as “the Trial Court”), seeking the relief of declaration, possession and for permanent injunction.

¶39

During the pendency of the suit, on an application filed by the plaintiff under Order 1 Rule 10(2) of Code of Civil Procedure, 1908 (hereinafter referred to as CPC for brevity) defendants no.2 to 6 came to be impleaded. Subsequently, on an application filed under Order 1 Rule 10(2) of CPC defendants no.7 to 10 got themselves impleaded as additional defendants. During the pendency of the suit before the trial Court, the original plaintiff Smt. Kuttiammal was reported to be dead and her legal representatives were brought on record.

¶40

The summary of the case of the plaintiff in the Trial Court was that, the lands in Sy.Nos.47 and 48(2) of Byrasandra village originally belonged to one Sri. N. Dorai Swamy S/o. Narasimhaiah Mudaliar, G. Muniswamy S/o. Gopal Mudaliar and A. Srinivasan S/o. Ayyakannu. The said owners formed sites in the said lands. Out of the sites so formed, they sold suit schedule sites bearing No.31 and 32 to one Sri. S.P. Krishnachari under registered sale deed dated 04.06.1962. In

¶41

¶42

R.F.A.No.1252 of 2017

¶43

turn the said vendee sold the said site to the original plaintiff -Smt. Kuttiammal on the date 16.10.1963 for a lawful consideration and delivered possession of the suit scheduled property to her. However, the sale deed was registered on 20.12.1963. Thus, the plaintiff - Smt. Kuttiammal became the absolute owner and came in possession of the suit schedule property. Since the said property came within the limits of then Bangalore City Corporation, the original plaintiff - Smt. Kuttiammal got changed the khata in her name and continued to pay taxes to the Corporation. She has not alienated the property to any one nor put up any permanent structure upon suit schedule property except a shed and a compound.

¶44

It is further the case of the original plaintiff - Smt. Kuttiammal that on the date 28.07.1998, when the plaintiff’s son had been to the suit property he found that defendant no.1 was squatting there illegally by breaking open the lock of the shed and on enquiry, defendant no.1 contended that the said property belongs to him. Though the plaintiff’s son immediately approached the jurisdictional Police, but it was of no use. In the meanwhile, the plaintiff also

¶45

¶46

R.F.A.No.1252 of 2017

¶47

received a notice from the Assistant Revenue Officer of Bangalore City Corporation dated 11.09.1998 stating that defendant no.1 was seeking mutation of khata in his name. A date was fixed for hearing on the same. The said act and deeds of the defendant no.1 created a cloud of doubt on the title of the plaintiffs over the suit schedule property and defendant no.1 remained in an illegal occupation of the schedule property. Stating that, this constrained the plaintiff - Smt. Kuttiammal to institute a suit against the sole defendant, she prayed for a decree in her favour declaring her as the absolute owner having legal title in respect of the suit schedule sites and shed situated therein and for directing the defendant no.1 to deliver the possession of the shed and schedule site to her and also for a relief of permanent injunction against the defendant No.1, his heirs and aspirants etc., The plaintiff has described the suit schedule property as site bearing Nos.31 and 32 totally measuring East to West 60 ft. North to South 48 ft. forming a composite block

¶48

¶49

R.F.A.No.1252 of 2017

¶50

and bounded on the East by site No.30, on the West by Site No.33, on the North by I cross road and on the South by the houses in the Trust Board sites and situated in Byrasandra village, formed out of old Sy.Nos.47 and 48/2 of Uttarahalli Hobli, Bengaluru South Taluk, presently situated at Corporation Ward No.62, adjoining 1^st main road, Chengaiah Compound, Byrasandra, Bengaluru. The site consists of 1½ sq. ft. shed with asbestos sheet roof and with compound.

¶51

In response to the notice, the then sole defendant who later became defendant no.1 appeared through his counsel and filed his written statement, wherein, he denied that the plaintiff was the absolute owner in possession of the suit schedule property and that he (defendant) has illegally trespassed into the said property. He expressed his ignorance that originally nos.47 and 48/2 of Byrasandra belonged to one Sri. N. Dorai Swamy and others and they formed sites in the said land and sold sites Nos.31 and 32 i.e., the suit schedule properties to Sri. Krishnachari under a registered sale deed and put him up in possession and in turn plaintiff

¶52

¶53

R.F.A.No.1252 of 2017

¶54

purchased the suit schedule property from the said

¶55

Krishnachari and secured the title to it. The defendant No.1 demanded the plaintiff to prove the said claim. He also denied plaintiff - Smt. Kuttiammal obtaining the khata of the schedule property in her name from the Bangalore City Corporation (the present Bruhat Bengaluru Mahanagara Palike-BBMP) and she being paying taxes to the Corporation.

¶56

The defendant No.1 further contended that the schedule property consisted of four tenaments and plaintiff executed a General Power of Attorney (hereinafter for brevity referred to as ‘GPA’) in favour of one Sri.V.Ramaiah on the date 08.04.1978. On the basis of the said GPA, the said V.Ramaiah sold the suit property to this defendant (defendant no.1) who registered the sale deed dated 02.01.1995 and delivered the possession to him. In pursuance thereof, the defendant no.1, became the absolute owner of the said property. He has paid development charges of `16,000/- on the date 13.08.1996 and

¶57

prayed for change of khata in his name. It was, at that stage, the plaintiff objected for change of khata and the defendant No.1

¶58

¶59

R.F.A.No.1252 of 2017

¶60

came to know the illegal act of the plaintiff and her alleged claim over the suit schedule property. The defendant no.1 also contended that after purchasing the schedule property, the GPA holder (defendant no.1) got demolished the four tenaments existed there by vacating the tenants. He also got levelled the land and put up a compound wall and a small new tenament and also kept a watchman. As such the plaintiff’s contention of her possession of suit schedule property and

¶61

putting up a compound and a shed in the plaint schedule property are all false and frivolous. He specifically contended that he is in possession of the suit property as a rightful owner, though due to the objection by the plaintiff, Corporation has not changed the Khata in his name.

¶62

He contended that the plaintiff having given GPA to one Sri. V. Ramaiah empowering him to sell the suit schedule property now cannot turn around and deny the claim of the defendant No.1. The defendant no.1 further contended that he entered into an agreement of sale agreeing to sell the schedule property in favour of Sri. A. Shami Khan, N. Ajay Kumar, R.V. Sai

¶63

¶64

R.F.A.No.1252 of 2017

¶65

Prasad and B.S. Rami Reddy for lawful consideration of `14,68,800/- on the date 28.03.1996 and received a part consideration and again on subsequent dates by receiving the balance consideration, he has delivered possession to the said respective purchasers, but he could not execute the sale deed for want of khata from Corporation. He called the act of the plaintiff not making those persons as parties makes the suit as bad for nonjoinder of necessary parties. He attributed the intention of the plaintiff for not seeking cancellation of sale deed and power of attorney mentioned above.

¶66

Since the defendant no.1 who was then the sole defendant took a contention of non-joinder of necessary parties, the plaintiff filed I. A. No. 5 in the trial Court under Order 1 Rule 10 (2) of Code of Civil Procedure, 1908 ( hereinafter for brevity referred to as ‘CPC’ ) to implead the said V. Ramaiah, ( shown as R. Ramaiah in the CT of TC as well as this Court). Shami Khan

¶67

and others as defendants no. 2 to 6. The said application came to be allowed and those persons were added as additional defendants. Among them only defendant no.3 - A Shami Khan appeared and filed his

¶68

¶69

R.F.A.No.1252 of 2017

¶70

written statement reiterating the contentions taken up by defendant no.1 that, the plaintiff had executed a GPA in favour of one Sri. V. Ramaiah and the said V. Ramaiah as her lawful attorney has sold the schedule property to defendant no.1 by registering a sale deed and put him in possession. It is also contended by D-3 that defendant no.1 had agreed to sell the said property for a lawful consideration of a sum of `14,68,800/- to D3 - D6 and by virtue of an agreement of sale, they had paid the entire consideration, as such, they were put in possession of the said property. He too contended that since khata was not issued by Bangalore City Corporation, they were unable to get the sale deed in their name. With this, he prayed to dismiss the suit.

¶71

Subsequently, defendants no.7 to 10 filed I.A.No.9 under Order 1 Rule 10(2) of CPC seeking to implead themselves as additional defendants. The said application since was not opposed by the plaintiff, the applicants were added as defendants no.7 to 10. Among them, defendant no.7 filed his written statement which was adopted by defendants no.8, 9 and 10 by filing a memo.

¶72

¶73

R.F.A.No.1252 of 2017

¶74

Defendant no.7 in his written statement admitted as

¶75

true that the schedule property originally belonged to one Sri. Dorai Swamy and others and they sold it to Sri. S.P. Krishnachari under a registered sale deed, who in turn sold it to the original plaintiff on the date 16.10.1963, which came to be registered on the date 20.12.1963. He also admitted as true that the schedule property consisted a small construction and compound but denied that as on the date of the suit, plaintiff was the absolute owner of it and that the defendant no.1 had taken forcible possession by breaking open the lock. He also stated that though khata was changed in the name of the plaintiff but denied that plaintiff continued to be in possession of the schedule property and was paying taxes till her alleged dispossession.

¶76

Defendant no.7 further contended that the plaintiff has executed a GPA in favour of one Sri. V. Ramaiah, S/o. Basappa empowering him to manage and also to alienate the said property in accordance with the said GPA. The said Ramaiah executed a registered sale deed in favour of defendant no.1 and

¶77

¶78

R.F.A.No.1252 of 2017

¶79

the said defendant no.1 in turn agreed to sell the schedule property to defendants no. 3 to 6 for a consideration and executed an agreement of sale. Having paid the entire sale consideration, defendants no.3 to 6 came in possession of schedule property and negotiated with defendants no.7 to 10 to sell the said property. Therefore, after verifying the said documents, defendants no.7 to 10 purchased the said property under a registered sale deed dated 20.05.2005. Defendant no.7 also contended that defendants no.3 to 6 got mutated their names in the records of the ‘BBMP’. Thus, defendants no.7 to 10 purchased the suit property from them and they are in possession of the same. With this, they prayed to dismiss the suit of the plaintiff. The defendants no.4 to 6 were placed ex-parte in the trial Court and defendant no.2 was reported to be dead.

¶80

Based on the pleadings of the parties, issues were framed and re-casted which ultimately remained as the following issues and addl. issue.

¶81

¶82

R.F.A.No.1252 of 2017

¶83

Re-Casted Issues

¶84

1. Whether the present plaintiffs prove that the deceased plaintiff is the absolute owner of the suit property on the date of the suit also, by virtue of registered sale deed dt.16.10.1963?

¶85

2. Whether the present plaintiffs prove that the deceased plaintiff had possessed the entire suit schedule property as owner thereof, till the date of suit?

¶86

3. Whether the plaintiffs prove that the defendant no.1illegally occupied the suit shed on 28.07.1998and later put up new construction illegally on the suit property as alleged?

¶87

4. Whether the suit is bad for non-joinder of necessary parties?

¶88

5. Whether the suit is barred by law of limitation?

¶89

6. Whether the deceased plaintiff is entitled for the relief of declaration of title?

¶90

7. Whether the plaintiffs are entitled to get the possession of the suit property from the defendant no.1 and subsequent purchasers viz., defendants no.3 to 6 and defendants no.7 to 10?

¶91

8. Whether the plaintiffs are entitled for the relief of permanent injunction against the defendants?

¶92

9. To what order the plaintiffs are entitled?

¶93

Additional Issue

¶94

1. Whether the contesting defendants prove that suit is not maintainable?

¶95

¶96

R.F.A.No.1252 of 2017

¶97

During the pendency of the suit, the original plaintiff died and her legal representatives were brought on record. Among the said legal representatives, the grand daughter of the original plaintiff, by name Smt. K. Nalini examined herself as PW-1. The plaintiffs also examined one of the attestors to the Will executed by late plaintiff -Smt. Kuttiammal as PW-2 and the Advocate, who drafted the said Will as PW-3. In all, 81 documents were marked on their behalf as Exs.P.1 to P.81. Among the defendants, only defendant no.7 examined himself as DW-1 and got marked four documents as Exs.D1 - D4.

¶98

The Trial Court records were called for and the same are placed before this Court.

¶99

Heard the arguments of the learned counsel for the appellants (defendants Nos.7 to 10) and learned counsel for the respondent No.1 and caveators respondents no.2 to 4.

¶100

Perused the material placed before this Court including the impugned judgment, memorandum of regular first appeal and the Trial Court records.

¶101

¶102

R.F.A.No.1252 of 2017

¶103

For the sake of convenience, the parties herein would be henceforth referred to as per their rankings before the Trial Court.

¶104

The defendants No. 7 to 10 ( appellants herein ) though have raised several grounds in their memorandum of appeal, however, their learned counsel in his argument mainly canvassed a single point that the suit of the plaintiffs without the prayer for declaration to declare the sale deed dated 02.01.1995 at Ex. D. 4 as null and void was not maintainable. He also submitted that defendants no. 7 to 10 are purchasers of property through their vendor, which vendor in turn had purchased the said property through GPA holder of the plaintiff. As such, once the plaintiff through GPA holder has executed the sale deed, her title over the said property ceases. Therefore, the plaintiffs should have necessarily prayed for cancellation of the said sale deed. In his support, he relied upon few reported judgments which would be considered at the appropriate stage here-afterwards. Learned counsel further submitted that there is no pleading to say that power of attorney was not binding on the plaintiffs, as such, the sale deed

¶105

¶106

R.F.A.No.1252 of 2017

¶107

prevails. He further submitted that in the absence of any specific prayer for cancellation of the sale deed, the same cannot be granted. Lastly, submitting that when the plaintiffs have not made any prayer for possession of the suit property from defendants no.2 to 10 the framing of issue no.7 by the Trial Court was uncalled for, he prayed for allowing the appeal.

¶108

Learned counsel for respondents no.1 and 2 to 4 in his argument submitted that the original plaintiff has specifically denied the execution of any GPA in favour of defendant no.2 Sri. V. Ramaiah. The alleged GPA in favour of said V. Ramaiah at Ex.D-1 is a concocted and created document which has been rightly held so by the trial Court in the impugned judgment. Thus, any alleged sale based upon the said GPA looses its authority. He further submitted that defendants no.7 to 10 who got themselves impleaded in the suit have not produced any sale deed standing in their favour. Learned counsel further contended that the original plaintiff not being a party to the alleged sale deed in favour of

¶109

¶110

R.F.A.No.1252 of 2017

¶111

defendant no.1 need not pray for cancellation of the said sale deed. He further submitted that since defendant no.1 did not choose to enter the witness box, so also defendant no.2 remained absent, the plaintiff had no opportunity to cross-examine them. Defendant no.2 was a fictitious person. He further submitted that since defendants no.7 to 10 could not establish that they are the purchasers and in possession of the suit schedule property, as such, even in the absence of pleading and issue being framed, the relief in favour of plaintiffs can be considered. With this he prayed for dismissal of the appeal.

¶112

In the light of the arguments addressed as above and perusal of the materials placed before this Court, including impugned judgment, the following points arise for my consideration:

¶113

1) Whether the legal representatives of the original plaintiff who have come on record as plaintiffs prove that deceased plaintiff Smt. Kuttiammal is the absolute owner of the suit schedule property as on the date of the institution of the suit?

¶114

2) Whether the legal representatives of the original plaintiff prove that the original plaintiff Smt. Kuttiammal was a owner of the suit

¶115

¶116

R.F.A.No.1252 of 2017

¶117

schedule property & was in possession of the suit schedule property till the date of filing of the suit?

¶118

3) Whether the plaintiffs prove that defendant no.1 illegally put-up a shed in the suit schedule property and possessed it on 28.07.1998 and later put-up a construction illegally on the suit property?

¶119

4) Whether the plaintiffs are entitled for the reliefs sought for?

¶120

5) Whether the impugned judgment and decree warrants an interference at the hands of this Court?

¶121

On behalf of the plaintiffs, one Smt. K. Nalini who came on record as one among the legal representatives of deceased original plaintiff got herself examined as PW-1. The said PW-1 in her examination-in-chief in the form of affidavit evidence has reiterated the contentions taken up by the plaintiff in her plaint. In support of their contention, she has also got marked documents from Exs.P.1 to P.72. In her further examination-in-chief she got marked documents from Exs.P.73 to P.81. PW-1 was subjected to a detailed crossexamination on different dates of hearing from the defendants’ side. Further one Sri. B. Anand was examined as PW-

¶122

¶123

R.F.A.No.1252 of 2017

¶124

2, who in his examination-in-chief, has stated that being a colleague of daughter-in-law of original plaintiff - Smt. Kuttiammal, he knows the original plaintiff and about the Will which is her last testament written by her in favour of her son Sri. Kuppuswamy and daughter-in-law Smt. Manonmani and two grand-daughters Smt. K Parvathi and Smt. K. Nalini. The said Will was with respect to the suit schedule properties. It was at her request, he has put his signature on the Will as a witness. The witness has given a detailed account as to how the said Will came to be executed and about the physical and mental health of the testator Smt. Kuttiammal. He has identified the said Will at Ex.P.11 and his signature therein at Ex.P.11(a). He also stated that Smt. Kuttiammal has also put her left thumb mark to the said Will. He was cross-examined from the side of defendants no.7 to 10 side. Though attempts were made to weaken the evidence of PW-2 in his crossexamination but the witness did not give scope for the same and adhered to his original version. However he gave more details about the manner in which the Will came to be executed

¶125

¶126

R.F.A.No.1252 of 2017

¶127

by Smt. Kuttiammal. On behalf of the plaintiffs, one Smt. K.M. Pushpalatha, an Adv. was examined as PW-3. The said witness has stated that being an Advocate she was consulted by Smt. Kuttiammal in the first week of October 1998 and it was at her desire, she drafted a Will as narrated by her. On the date 14.10.1998, the said Smt. Kuttiammal executed the said Will in the presence of two attesting witnesses by name Sri. Anand and Sri. D.C. Satyanarayana Mohan. The witnesses have stated that the Will was read over to them before they put their signatures. The witness stated that she too has put her signature on the said Will and last testament of Smt. Kuttiammal on the date 14.10.1998. She stated that she identifies the left thumb mark of Smt. Kuttiammal on the said Will. The witness stated that the witnesses have signed the Will at the request and in the presence of Smt. Kuttiammal and in the presence of each other. PW-3 has further given the account of the registration of the said Will on the same day. She has identified the said Will at Ex.P.11 and her signature therein at Ex. P. 11 (b). In her crossexamination from the side of defendants no.7 to 9

¶128

¶129

R.F.A.No.1252 of 2017

¶130

she adhered to her original version and gave more details about the execution of the Will at Ex.P.11 by the original plaintiff Smt. Kuttiammal.

¶131

From the defendants' side, it is only defendant no.7 Sri. V. Srinivasa Reddy was examined as DW-1. The said witness in examination-in-chief in the form of affidavit evidence has reiterated the contentions taken up by him in his written statement. He got marked the General Power of Attorney dated 08.04.1978 shown to have been executed by the original plaintiff - Smt. Kuttiammal in favour of Sri. V. Ramaiah - defendant no.2 at Ex.D.1, Encumbrance Certificate with respect to the suit property at Ex.D.2, a receipt stating to be evidencing the payment of development charges at Ex.D.3, registered sale deed dated 02.01.1995 shown to have been executed by defendant no.2 - Sri. V. Ramaiah as Power of Attorney holder of plaintiff - Smt. Kuttiammal in favour of defendant no.1 - Sri. Purushothama Naidu with respect to suit schedule property.

¶132

¶133

R.F.A.No.1252 of 2017

¶134

The contention of the original plaintiff that the suit

¶135

schedule properties were purchased by her vendor Sri. S. P. Krishnachari under a registered sale deed dated 04.06.1962 and from the said Sri. S.P. Krishnachari she purchased the suit schedule properties for a lawful consideration under a sale deed dated 16.10.1963 which was registered on 20.12.1963 and thus she became the absolute owner and came in possession of the suit schedule properties is corroborated by the sale deed at Ex.P.1 executed by the vendors of suit schedule property in favour of Sri. Krishnachari and the registered sale deed at Ex.P.2 dated 16.10.1963 by the said Krishnachari in favour of the plaintiff, tax assessment extract dated 27.05.1998 issued by the Bangalore City Corporation in favour of the plaintiff - Kuttiammal at Ex.P.3, betterment charges payment receipt at Ex.P.4, the property tax receipt from the years 1991-1999 at Ex.P.5, Encumbrance Certificates from 01.04.1963 to 31.09.1966 evidencing the sale of the property by Krishnachari at Ex.P.6, Nil encumbrance certificates at Exs.P.7 and P.8, Khata certificate standing in the name of original plaintiff Smt.

¶136

¶137

R.F.A.No.1252 of 2017

¶138

Kuttiammal at Ex.P.9. This was at the first instance denied by defendant no.1 in his written statement, however, the very same defendant in his very same written statement in subsequent paragraphs has stated that he purchased the suit schedule property from Sri. V.Ramaiah who was GPA holder of the plaintiff Smt. Kuttiammal under a registered sale deed dated 02.01.1995 & thereafter paid the development charges of `16,000/- to the Corporation on the date 13.08.1996. Thus the defendant no.1 has conceded that the suit schedule property originally belonged to the original plaintiff Smt. Kuttiammal. However, his contention that the said Kuttiammal executed a GPA in favour of defendant no.2 Sri. R. Ramaiah is seriously disputed by the plaintiffs.

¶139

After impleading defendants no.2 to 6 in the trial Court it was only defendant no.3 who filed his written statement. The said defendant in his written statement has stated that original plaintiff Smt. Kuttiammal had executed a

¶140

¶141

R.F.A.No.1252 of 2017

¶142

GPA in favour of Sri. V. Ramaiah and the said V. Ramaiah as

¶143

her lawful attorney sold the suit schedule property to defendant no.1 under a registered sale deed and put him up in possession. From the said defendant no.1, the defendant nos.3 to 6 agreed to purchase the said property for a lawful consideration of `14,68,800/- under an agreement of sale and have paid the entire consideration and were put in possession of the said property. However, even according to them, the khata of the property was not issued in their name as such, they were unable to execute any sale deed.

¶144

Except taking such contention none of the defendants from defendants no.1 to 6 entered the witness box and led evidence on behalf of the defendants. More importantly, defendant no.3 who had filed written statement has not produced any document in support of his contention. In order to show their alleged agreement for sale with defendant no.1 and the payment of alleged sale consideration of `14,68,800/-,

¶145

the said defendant no.3 or any of the defendants from defendants no.3 to 6 have not produced any documents.

¶146

¶147

R.F.A.No.1252 of 2017

¶148

Admittedly, no registered sale deed has been executed in their favour. It is also not the case of defendants no.3 to 6 that the alleged agreement for sale was a registered agreement. Had really there been any agreement for sale in their favour along with delivery of possession of suit property to them, then necessarily the said alleged agreement ought to have been registered and the defendants no.3 to 6 ought to have necessarily produced the said document as an exhibit. However, no such attempt has been made by them.

¶149

Defendants no. 7 to 10 claimed their title & possession over the suit property through defendants no.3 to 6. The said defendants in their written statement have clearly admitted that the suit property originally was belonging to one Sri. Dorai Swamy Mudaliar and others and they sold it to one Sri. S.P. Krishnachari under a registered sale deed, who, in turn sold it to the original plaintiff on 16.10.1963 and that the sale deed was registered on 20.12.1963. He also admitted that suit property consisted a small construction and a compound. Thus, the title of original plaintiff Smt. Kuttiammal upon the

¶150

¶151

R.F.A.No.1252 of 2017

¶152

suit schedule property at some point of time has been admitted by defendant no.1 indirectly and by defendants no.3 to 10 directly. However, their contention is that by virtue of the alleged GPA alleged to have been executed by said original plaintiff Smt. Kuttiammal in favour of defendant no.2 Sri. V. Ramaiah, the property came to be sold to defendant no.1 and possession of the property was also handed over to him, as such, the plaintiff ceased to be the owner of the suit schedule property. It is taking such a contention, the learned counsel for appellants relied upon a judgment of the Hon’ble Apex Court in BISHUNDEO NARAIN RAI (DEAD) BY LRS AND

¶153

OTHERS VS. ANMOL DEVI AND OTHERS reported in (1998) 7 SCC 498 . In the said judgment, the Hon’ble Apex Court at paragraph no.11 was pleased to observe as below:

¶154

“11. A combined reading of Section 8 and Section 54 of Transfer of Property Act suggests that though on execution and registration of a sale deed, the ownership and all interests in the property pass to the transferee, yet that would be on the terms and conditions embodied in the deed indicating the intention of the parties. It follows that on execution and registration of a sale deed, the ownership title and all interests in the property pass to the purchaser unless a different intention is either expressed or necessarily implied which has to be

¶155

¶156

R.F.A.No.1252 of 2017

¶157

proved by the party asserting that title has not passed on registration of the sale deed. Such intention can be gathered by intrinsic evidence, namely, from the averments in the sale deed itself or by other attending circumstances subject, of course, to the provisions of Section 92 of the Evidence Act, 1872.”

¶158

The learned counsel for the defendants 7 -10

¶159

(appellants) also relied upon a judgment of the Hon’ble Apex

¶160

Court in PREM SINGH AND OTHERS VS. BIRBAL AND OTHERS reported in (2006) 5 SCC 353 wherein, the Hon’ble Apex Court at paragraph no.27 of the said judgment was pleased to observe as below:

¶161

“27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption.”

¶162

Relying upon these two judgments the learned counsel

¶163

for the appellants contended that, since Smt. Kuttiammal has executed GPA in favour of Sri. V. Ramaiah (defendant no.2) as per Ex.D.1 and said V. Ramaiah has executed a registered sale

¶164

deed as per Ex.D.4 in favour of defendant no.1 and it is from defendant no.1, the defendants no.3 to 6 purchased the said

¶165

¶166

R.F.A.No.1252 of 2017

¶167

property and sold it to defendants no.7 to 10, as such, it is the appellants herein (defendants no.7 to 10) who are the title holders in possession of suit schedule property.

¶168

No doubt the registered sale deed shown to have been executed by defendant no.2 Sri. V. Ramaiah as a GPA holder in favour of defendant no.1 which is at Ex.D.4 is a registered document. As per Prem Singh’s Case (supra), there would be a presumption that the registered document is validly executed. As such, prima facie it would be valid in law. Thus, the onus of proof would be upon the plaintiffs in the instant case to rebut the said presumption. Similarly, as per Anmol Devi’s case (supra), the ownership and all interest in the property passes to the transferee through the execution & registration of a sale deed, which, in the instant case, is Ex.D.4 in favour of defendant no.1. In the instant case, the very execution of GPA as per Ex.D.1 by original plaintiff Smt. Kuttiammal in favour of Sri. V. Ramaiah (defendant no.2) is in dispute. The main contention of the original plaintiff Smt. Kuttiammal was that she has never executed any Power of Attorney

¶169

¶170

R.F.A.No.1252 of 2017

¶171

in favour of defendant no.2 Sri. V. Ramaiah. The plaintiffs have seriously disputed the alleged Power of Attorney produced by defendant no.7 as DW-1 which document is marked as Ex.D.1. Therefore, the onus would lie on the plaintiff to show that no such GPA was executed by original plaintiff Smt. Kuttiammal in favour of defendant no.2 –Sri.V. Ramaiah.

¶172

The plaintiffs apart from taking a contention that the original plaintiff Smt. Kuttiammal had not executed any GPA much less, as per Ex.D.1, in favour of Sri. V. Ramaiah have also stated through PWs-1, 2, and 3 that original plaintiff Smt. Kuttiammal has left an original Will dated 14.10.1998 in their favour. It is by virtue of the said registered Will, the present plaintiffs have inherited to the estate of Smt. Kuttiammal which includes the suit schedule property. The plaintiffs through PW-1 have produced the said Will at Ex.P.11, the death certificate of Smt. Kuttiammal at Ex.P.12 and got examined PWs-2 and 3 in their support. As observed above, PW-2 in his evidence has stated that he has attested to the Will as a witness at the request of Smt. Kuttiammal. PW-3 the

¶173

¶174

R.F.A.No.1252 of 2017

¶175

Advocate has stated that it is she who drafted the Will and it is in her presence the testatrix Smt. Kuttiammal and witnesses including PW-2 have subscribed their signatures in the presence of each other. The witnesses have also stated that they had read over the contents of the Will to all the concerned including the testatrix and PW-2, before they put their signatures to the Will. The said evidence of PWs-2 and 3 could not be able to be shaken in their cross-examination. On the other hand, more details about the execution of the Will has come out in the cross-examination of PWs-2 and 3.

¶176

Admittedly, the said Will at Ex.P.11 is a registered document. According to Prem Singh’s Case ( supra ) there is a presumption that a registered document is validly executed, however, the onus was upon the defendants to rebut the said presumption.

¶177

In the instant case, the defendants have failed to rebut the said presumption. It was at the first instance and foremost for the defendant no.1 to rebut the said presumption, since, it is he, who claims that he is the purchaser of the property from its original plaintiff Smt. Kuttiammal through her alleged GPA holder

¶178

¶179

R.F.A.No.1252 of 2017

¶180

Sri. V. Ramaiah. However, as observed above, except filing his written statement he did not choose to enter the witness box and lead his evidence, as such, he did not contest the Will at Ex.P.11. The attempts made by defendants no.7 to 10 among whom defendant no.7 was examined as DW-1 also could not able to rebut the presumption about the genuinity and authenticity of the Will. Thus, the evidence of PWs -1 to 3 coupled with Ex.P.11 shows that Smt. Kuttiammal has

¶181

executed a Will on 14.10.1998 bequeathing the said property in favour of her son, daughter-in-law and grandchildren, who are the present plaintiffs, showing them as legatees. Therefore, the next point to be considered is about the genuinity and authenticity of the alleged GPA at Ex.D.1 alleged to have been executed by original plaintiff Smt. Kuttiammal in favour of defendant no.2 Sri. V. Ramaiah.

¶182

The GPA alleged to have been executed by the original plaintiff Smt. Kuttiammal in favour of defendant no.2 Sri. V. Ramaiah is produced by defendant no.7 as DW-1 and got it marked as Ex.D.1. No doubt the said GPA by its bare

¶183

¶184

R.F.A.No.1252 of 2017

¶185

reading go to show that the executant is shown as Smt. Kuttiammal and it is shown that she has executed the GPA in favour of Sri. V. Ramaiah (however in the original suit he is shown as R. Ramaiah) empowering him to deal with the suit schedule property including registering the sale deed. However, the very execution of the said document by the executant Smt. Kuttiammal is seriously disputed not only by the present plaintiffs even by the very same Smt. Kuttiammal

¶186

as original plaintiff in the suit.

¶187

As per Ex.D.1 the alleged GPA, the name of the husband of executant of GPA is shown as ‘Sri. Periyachari’ however, as per Ex.P.2 the sale deed in favour of original plaintiff the name of the husband of the original plaintiff Smt. Kuttiammal is shown as late ‘Pachchiyappahchari'. The name of the husband of the original plaintiff, is shown as ‘Late Pachappachari’ even in the certificate of death at Ex.P.12 also. Similarly, in the plaint also, the name of the husband of the original plaintiff is shown as ‘late Pachappachari’ only, but not as ‘Periyachari’ as shown in Ex.D.1. The address of Smt. Kuttiammal is also at variation

¶188

¶189

R.F.A.No.1252 of 2017

¶190

from Ex.D.1 to that of the copy of Ration Card in Ex.P.14, the sale deed at Ex.P.2 and in the cause title to the plaint. The several other documents from Exs.P.15 to P.39 and Ex.P.72 also do not reflect the address of the plaintiff as shown in Ex.D.1 the GPA. This creates a serious doubt about the alleged residence of the original plaintiff Smt. Kuttiammal as that of the address shown in the alleged GPA at Ex.D.1.

¶191

The plaintiffs categorically contended that at no point of time any GPA has been executed by Smt. Kuttiammal in favour of anybody, much less, in favour of defendant No.2 Sri. V. Ramaiah (defendant no.2). However, according to D-1, he purchased the SSP belonging to Smt. Kuttiammal through her alleged Power of Attorney holder Sri. V. Ramaiah and the said Ramaiah was arraigned as defendant no.2 in the original suit. Admittedly, defendant no.2 neither filed his written statement nor appeared in the matter and contested the matter. Interestingly, summons also could not be served upon him by the trial Court in the normal and ordinary course. The suit summons was taken as served upon him only through a substituted service of summons in the form of paper

¶192

¶193

R.F.A.No.1252 of 2017

¶194

publication under Order 5 Rule 20 of CPC. The substituted service of notice was required to be ordered since his residential address could not be traced through the process of the Court in the ordinary course. Thus, the service of summons to said defendant no.2-Sri. V. Ramaiah was through paper publication, however, he remained absent, as such, was placed ex-parte .

¶195

During the pendency of the original suit, the defendant no.1 filed a memo dated 03.11.2006 reporting the death of defendant no.2 V. Ramaiah. However, no document including death certificate of V. Ramaiah was produced in the suit. As observed above, defendant no.1 in his written statement has taken a contention that after his purchase of suit property through the GPA holder Sri. V. Ramaiah, he entered into an agreement of sale agreeing to sell the very same property in favour of defendants no. 3 to 6 for a lawful consideration of `14,68,800/-. According to the written statement of defendant no.3, the said agreement of sale was entered into on the date 28.03.1996. Thereafter, a further agreement of sale dated

¶196

¶197

R.F.A.No.1252 of 2017

¶198

22.07.1996 was entered. The final balance sale consideration of `50,000/- was paid by defendants no. 3 to 6 to defendant no.1 on 29.08.1996. However, no piece of paper in this regard has been produced by any of the defendants to prove their contention. On the contrary, the very same defendants no.4, 5 and 6 are shown to have lodged a complaint to the Tilak Nagar Police Station, Bengaluru on 16.07.2001 alleging that defendants no.1 and 3 fabricated false documents regarding the suit schedule property and cheated them (defendants no.4 to 6). The complainants (defendants no.4 to 6) are also shown to have stated that Smt. Kuttiammal on coming to know about the alleged transaction between the complainants (defendants no.4 to 6) and Purushothama Naidu (defendant no.1) categorically denied the execution of GPA in favour of Mr. V. Ramaiah or any transaction regarding the suit schedule property. The complainants have also stated that then they approached Purushotham Naidu to settle the litigation. Said Purushothama Naidu agreed to settle the dispute or return the money back, however, he neither settled the litigation nor returned the money back.

¶199

¶200

R.F.A.No.1252 of 2017

¶201

Defendant no.3-Shami Khan was also a shareholder of the subject matter sites, which is the suit schedule property and the complainants could not have got the positive reply with him also. With this they have prayed the police to take appropriate action against them.

¶202

Ex.P.47 which is a copy of the charge sheet would go to show that in the said case the Police filed a charge sheet against defendant no.1-Purushothama Naidu for the offence punishable under Sections 465, 468, 471 and 420 of IPC. In the very same charge sheet the Police have mentioned that said V. Ramaiah was a non-existing person and the GPA in his name was a created document. Exs. P.48 to P.57 are the statements which are the part of charge-sheet at Ex.P.47. In addition to these, the reports of Police Constable of Tilak Nagar Police Station which are at Ex.P.55 to P.57, letter of Assistant Revenue Officer, BBMP at Ex.P.58 stating that, upon verification the voter’s list does not show the name of defendant no.2 V. Ramaiah S/o. Narasappa and they have no evidence as to whether the said V. Ramaiah is living or dead,

¶203

¶204

R.F.A.No.1252 of 2017

¶205

would go to show that said V. Ramaiah was a fictitious person and not in existence. When the very existence of said Sri. V. Ramaiah, the alleged GPA holder as per Ex.D1, is suspicious and doubtful, the execution of Power of Attorney as per Ex.D.1 in favour of a non-existing person becomes highly doubtful.

¶206

Added to the above, as could be seen from the records of the trial Court, it is found that after adducing the evidence of defendant no.7 as DW-1, defendants no.7 to 10 by filing an I.A. took summons to the Assistant Government Pleader by name Sri. B.C. Keshava Gowda, who is shown to have identified the deceased, original plaintiff Smt. Kuttiammal, before the District and Sessions Judge & Member, Karnataka Appellate Tribunal, Bengaluru, before whom the alleged GPA - Ex.D.1 was shown to have been executed. However, it was reported to the trial Court that no such advocate by name ‘Keshava Gowda’ was residing in the address shown in the said document. Further the details of the witnesses in Ex.D.1 are also shown only in the form of two signatures without there being any name and address of those witnesses.

¶207

¶208

R.F.A.No.1252 of 2017

¶209

To the height of the above discrepancies and

¶210

irregularities in Ex.D.1 - GPA, the other important aspect to be noticed is that the Power of Attorney - Ex.D.1 is shown to have been executed by its alleged executant, who is alleged to be the original plaintiff Smt. Kuttiammal, by subscribing her alleged signature to the said GPA in all its four pages. However, the evidence led before the trial Court by PW-1 go to show that, she was an illiterate and not knowing to put her signature, instead, she used to put her left thumb mark. In that regard, the plaint filed by the said original plaintiff Smt. Kuttiammal is subscribed by her by putting her left thumb mark. Added to the same, the evidence of PWs-2 and 3 show that Kuttiammal used to put her left thumb mark. Therefore, it is further clear that Ex.D.1 the alleged GPA was not executed by original plaintiff Smt. Kuttiammal. However, the defendants, that too, more particularly, defendant no.1 with an ulterior motive has got produced somebody else before the District and Sessions Judge, Karnataka Appellate Tribunal, Bengaluru, showing that person as Kuttiammal and got Ex.D.1 executed by that other

¶211

¶212

R.F.A.No.1252 of 2017

¶213

person who was impersonated as Kuttiammal. Thus it is established that Ex.D.1 is not a genuine and authenticated document. Thus, when the very GPA at Ex.D.1 is a suspicious document and defendants could not able to prove that it was a genuine and authentic document, on the other hand, there are all other reasons to believe that it is a got-up document in the name of some fictitious person, the alleged sale of the suit schedule property by the said fictitious person V. Ramaiah, as a GPA holder to defendant no.1, through the sale deed at Ex.D.4 loses its sanctity. As such, even though Ex.D.4 is a registered document, but the evidence placed before the Court would clearly go to show that title has not passed on after the alleged registration of the said alleged sale deed.

¶214

Defendant no.1 has contended in his written statement that when he purchased the suit property it consisted four tenaments and rent was collected by defendant no.2 as GPA holder on behalf of the plaintiff. However, after he (defendant no.1) purchasing the site, he demolished all the four tenaments and constructed new buildings thereon. The

¶215

¶216

R.F.A.No.1252 of 2017

¶217

said contention of defendant no.1 also falls to the ground, since, his own document i.e., alleged power of attorney at Ex.D.1 does not speak anything about the four tenaments in the suit schedule property. On the other hand, it calls the said property as two sites. Even Ex.D.4 also does not speak about existence of four tenaments as on the date of its alleged sale and letting out those tenements to any of the tenants. It further falsifies the genuinity and authenticity of Ex.D.1.

¶218

When the nature of the suit property was shown to be a vacant site which is further corroborated by the photographs produced at Exs.P.67 to P.71 and when the alleged tenaments could not be able to be established by the defendants, the possession of the defendant no.1 over the suit schedule property has to be taken as that of a trespasser. Even if it is taken that defendants no.3 to 10 were put in possession of said property, through the said defendant no.1, then their alleged possession, would not, in any manner, legalise then possession. If at all, any structure is put up in the suit schedule property, the same would be as a trespasser and by an

¶219

¶220

R.F.A.No.1252 of 2017

¶221

unauthorised person. Thus, the plaintiffs could able to establish that there was no alleged sale transaction with respect to suit schedule property between original plaintiff Smt. Kuttiammal through her alleged Power of Attorney holder Sri. V. Ramaiah with defendant no.1. Thus, the entire alleged sale transaction through Ex.D.4 & the alleged Power of Attorney at Ex.D.1 in favour of defendant no.1 falls to the ground. Consequently, the further alleged transaction in faovur of defendants no.3 to 10 also falls to the ground.

¶222

It is also to be noticed at this place that, admittedly, none of the defendants have produced any piece of paper of the alleged agreement for sale of suit schedule property in favour of either defendants no.3 to 6 or in favour of defendants no.7 to 10. Nothing had prevented them from producing the documents showing the alleged agreement for sale in their favour. Assuming for a moment that they had such a document, in the light of the analysis made above, when the alleged mother transaction between original plaintiff Smt. Kuttiammal and defendant no.1 through the alleged Power of Attorney - defendant no.2 itself could not be established, all

¶223

¶224

R.F.A.No.1252 of 2017

¶225

further transactions between defendant no.1 and other defendants from defendants no.3 to 10 loses their genuinity and authenticity on their own.

¶226

The learned counsel for the appellants in his argument submitted that the suit of the plaintiffs without a prayer to declare the sale deed dated 02.01.1995 at Ex.D.4 as null and void, was not maintainable. In his support the learned counsel relied upon the following judgments.

¶227

(a) In RAMTI DEVI (SMT) VS. UNION OF INDIA reported in (1995) 1 SCC 198 , the Hon’ble Apex Court in a suit for declaration of title though had considered the aspect of limitation, however, was also pleased to observe that no issue on the voidity of the sale deed or its binding nature was raised nor a finding was recorded holding that the sale deed was void under Section 23 of the Contract Act. It was further observed that pleading itself was not sufficient. Since the appellants were seeking to have the document avoided or cancelled, necessarily, a declaration had to be given by the Court in that

¶228

¶229

R.F.A.No.1252 of 2017

¶230

behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties.

¶231

(b) In VISHWAMBHAR AND OTHERS VS. LAXMINARAYAN (DEAD) THROUGH LRS AND ANOTHER reported in ( 2001) 6 SCC 163 where challenge to alienation by natural guardian of property of minor, without the Court sanction and without legal necessity was made, the Court observed that the challenge was made without the prayer for setting aside the sale deeds, since the claim for recovery of properties alienated could not have been made without setting aside the sale deeds, the suit as initially filed was not maintainable. It further observed that it cannot be said that all the necessary averments for setting aside the sale deeds executed by one Smt. Laxmibai were contained in the plaint and adding specific prayer for setting aside the sale deeds was a mere formality.

¶232

Per contra learned counsel for the respondents in his arguments while contending that it is not mandatory for a

¶233

¶234

R.F.A.No.1252 of 2017

¶235

non-party to a sale deed to seek its cancellation has relied upon the following judgments.

¶236

(i) S.R.M. RAMANUJAM PILLAI VS. RAMASWAMI

¶237

PILLAI & ORS. reported in AIR 1946 MADRAS 181 . In the said case a single Judge Bench of Madras High Court was pleased to observe that unless the plaintiff is a party to a particular document, he cannot get the relief he seeks without avoiding that document, it being an insuperable obstacle in his way and it is unnecessary for him to seek the cancellation of the document.

¶238

(ii) In VADDE SANNA HULUGAPPA S/O. HANUMANTHAPPA AND OTHERS VS. VADDE SANNA HULUGAPPA S/O. SIDDAPPA AND OTHERS reported in AIR 1998 KARNATAKA 325, a coordinate Bench of this Court in a suit for partition where alienation of the property was challenged and sought that the same was not binding on the plaintiffs, was pleased to observe that the plaintiffs being not parties to any of the alienations, there was no legal obligations on their part to specifically pray that alienations were not binding on them.

¶239

¶240

R.F.A.No.1252 of 2017

¶241

In the instant case, no doubt, the plaint is not for declaration either seeking the cancellation of alleged sale deed at Ex.D.4, or a declaration to declare that the said sale deed is void and not binding on the plaintiffs. On the other hand, the plaintiffs have sought for a declaration to declare that the original plaintiff Smt. Kuttiammal is the absolute owner having a legal title in respect of the suit schedule property and also they sought for a direction to the defendants to deliver the possession of the suit schedule property with shed thereupon to them for the relief of permanent injunction. In the analysis made above, it is established that the alleged Power of Attorney holder either by name Sri. V. Ramaiah S/o. Narasappa or Sri. R. Ramaiah S/o. Narasappa was a fictitious person and that the alleged General Power of Attorney at Ex.D.1 was also a concocted and created document which was not executed by the original plaintiff Smt. Kuttiammal. When it is established that the alleged Power of Attorney Sri. V. Ramaiah was not at all a Power of Attorney of the original plaintiff, the alleged participation of the said Power of Attorney holder in the sale deed at

¶242

¶243

R.F.A.No.1252 of 2017

¶244

Ex.D.4 as the vendor loses its sanctity and authenticity and

¶245

thus, it is a document having no participation of original plaintiff Smt. Kuttiammal in it. Therefore, when the alleged sale deed at Ex.D.4 is between a fictitious person and defendant no.1 for which the original plaintiff was a stranger, in the facts and circumstances of the case and in the light of the analysis made above, it was not incumbent upon the original plaintiff or the present plaintiffs to seek any relief of cancellation of the said sale deed or declaration that the said sale deed was null and void and not binding on the plaintiffs. As such, the only main argument canvassed by the learned counsel for the defendants is not acceptable.

¶246

The learned counsel for the defendants (appellants)

¶247

also submitted in his argument that even though no prayer was made in the plaint for handing over the possession of the suit schedule property to the plaintiffs from defendants no.2 to 10, still, the trial Court proceeded to frame issue no.7 with respect to possession by all the defendants and the same is a serious error.

¶248

¶249

R.F.A.No.1252 of 2017

¶250

The prayer as was made by the original plaintiff Smt. Kuttiammal as against the sole defendant as on the date of filing of the suit was not amended even after impleading defendants no. 2 to 10, however, defendant no.3 and defendant no.7 have filed their written statement. Since the issues have to be framed based on the pleadings of the parties and since the main prayer was to declare that the plaintiff is

¶251

the absolute owner having legal title in respect of suit schedule property and for the possession of the property, the trial Court has framed issue no.7 which reads as below:

¶252

“7. Whether the plaintiffs are entitled to get the possession of the suit property from the defendant no.1 and subsequent purchasers viz; defendants no.3 to 6 and defendants no.7 to 10?”

¶253

Admittedly, none of the defendants raised any

¶254

objections for framing the said issue nor filed any application seeking alteration of the issues or framing of additional issue. On the contrary, only defendant no.7 who alone had led his evidence, has also led his evidence on issue I.A.No.7 apart from the plaintiffs also leading their evidence on the said

¶255

¶256

R.F.A.No.1252 of 2017

¶257

issue. Thus, when the said issue framed by the trial Court was necessitated in the circumstances of the case, more particularly, in the light of the pleadings of the impleaded defendants and both the parties who have led their evidence on the said particular issue also and when by virtue of the analysis of the evidence made by the trial Court as well by this Court, it is established that the document at Ex.D.1 was a created and concocted document taking the aid of a fictitious person, as such, the alleged transaction between the plaintiff and defendant no.1 in the form of Ex.D.4 also has lost its genuinity and sanctity. Thus the issues framed by the trial Court and the relief granted by it cannot be found fault with.

¶258

As analysed above since the defendant no.1 and through him defendant no.3 and defendants no.7 to 10 have claimed their possession over the property and since the very possession of the defendant no.1 itself was found to be illegal as a trespasser, as such, he could not pass any better title including a lawful possession to the subsequent defendants. Thus the plaintiffs are entitled for the relief of possession as well

¶259

¶260

R.F.A.No.1252 of 2017

¶261

the relief of permanent injunction with respect to suit schedule

¶262

property as prayed for. Thus, it is after proper analysis of the evidence placed before it since trial Court has rightly decreed suit of plaintiffs and in the process also imposed cost upon defendant no.1 and defendants no.3 to 10 by giving cogent reasons for the same, I do not find any reason to interfere in

¶263

the impugned judgment and decree of the Trial Court.

¶264

Accordingly, I proceed to pass the following:

¶265

ORDER

¶266

The Regular First Appeal filed by defendants No.7 to 10 (appellants) stands dismissed as devoid of merits;

¶267

Registry to transmit a copy of this judgment along with the Trial Court records to the concerned Trial Court, immediately.

¶268

Sd/JUDGE