Dismissed

Mrs Shalet Mathais v. Mr Mathew Mathais

Karnataka HC21 Nov 2023RSA/408/2014

Case brief

AI extract

What is this about?

Regular second appeal challenging dismissal of suit for declaration of title and permanent injunction. Court held that appellants failed to execute affidavit or examine principal grantor, failing to discharge burden of proof regarding alleged forgery of settlement deed.

What did the court decide?

The second appeal was dismissed, and the judgments and decrees passed by the courts below were confirmed.

Mrs Shalet Mathais Vs Mr Mathew Mathais — Partition | Karnataka HC (2023)

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NC: 2023:KHC:41720 RSA No. 408 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 408 OF 2014 (DEC/INJ)

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BETWEEN:

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MRS. SHALET MATHAIS W/O LATE RUDOLPH MATHAIS AGED ABOUT 48 YEARS, R/AT KARANGALPADY CROSS ROAD, KARANGALPADY, MANGALORE, D.K.DISTRICT.

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…APPELLANT

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(BY SRI. K.N. PHANINDRA, SR. ADVOCATE FOR SRI. RAJARAMA SOORYAMBAIL, ADVOCATE)

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AND:

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Digitally signed by R DEEPA Location: High Court of Karnataka

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MR. MATHEW MATHAIS S/O LATE LAWRENNCE MATHIAS, MAJOR, R/AT JAIL ROAD, MANGALORE, D.K.DISTRICT – 575 008

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…RESPONDENT

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(RESPONDENT SERVED BUT UNREPRESENTED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 22.11.2013 PASSED IN R.A.NO.159/2008 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE, D.K., DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 17.11.2008 PASSED IN OS.NO.493/2006 ON THE FILE OF 2^ND ADDITIONAL JUNIOR CIVIL JUDGE, MANGALORE.

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NC: 2023:KHC:41720 RSA No. 408 of 2014

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

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JUDGMENT

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This second appeal is filed by the appellant challenging the judgment and decree dated 22.11.2013 in R.A.No.159/2008 passed by the II Additional Senior Civil Judge, Mangaluru, D.K., confirming the judgment and decree dated 17.11.2008 in O.S.No.493/2006 passed by the II Additional Civil Judge (Jr.Dn) and JMFC, Mangaluru.

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For the sake of convenience, parties are referred

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to as per their ranking before the trial Court. The appellant is the plaintiff No.2 and respondent is the defendant, since plaintiff No.1 died during pendency of suit.

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The brief facts leading rise to filing of this appeal are as under:

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Plaintiffs filed a suit for declaration of title and permanent injunction. It is the case of the plaintiffs that one Lawrence Mathias was the owner of suit schedule

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properties i.e., lands in Survey Nos.4/20A2, 4/20B1-B and 4-6 situated at Hosabettu village of Mangaluru taluk. The original plaintiff No.1 and her children filed a suit in O.S.No.32/1997 for a partition and separate possession. The said suit was ended in a compromise and final decree was drawn allotting B schedule properties in favour of plaintiff No.1. The defendant is the son of plaintiff No.1, harassing the plaintiff No.1 and fraudulently took her signature on the cash certificate and fraudulently withdrawn the deposits from the bank. The plaintiff No.1 immediately lodged a complaint against the defendant. It is contended that the plaintiff No.1 executed a General Power of Attorney in favour of one Mr.J.J. Vinod Vas to execute a settlement deed in favour of plaintiff No.2, who is the wife of her deceased son i.e., the brother of defendant, as plaintiff No.1 could not move out of the house. The GPA holder of plaintiff No.1 executed settlement deed in favour of plaintiff No.2 in respect of suit properties on 13.06.2006. On the strength of settlement deed, the plaintiff No.2 applied for change of

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revenue entries, but to her surprise the revenue officials issued endorsement dated 11.07.2006 wherein it was mentioned that on the execution of another settlement deed in favour of defendant, they refused to enter the name of plaintiff No.2 in the revenue records. The plaintiffs applied for certified copy of the settlement deed alleged to have been executed by Power of attorney holder of plaintiff No.1 in favour of defendant. The said settlement deed disclosed that a person by name Mr.Anuj Castelino had executed a settlement deed in favour of defendant as GPA holder of plaintiff No.1. It is contended that no Power of Attorney was executed by plaintiff No.1 in favour Mr.Anuj Castelino. The defendant on the strength of the settlement deed dated 28.04.2005 is trying to interfere into the peaceful possession and enjoyment over the suit schedule properties. Further stated that the defendant has not derived any right, title or interest in the suit properties. Hence, this suit.

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Defendant filed written statement denying averments made in the plaint. It is contended that plaintiff No.1 executed a General Power of Attorney in favour of Mr.Anuj Castelino with an intention to execute settlement deed in favour of defendant and in pursuant of which, the power of attorney holder executed registered settlement deed dated 28.04.2005 in favour of the defendant and defendant was put in possession of the suit properties. On the strength of registered settlement deed the defendant applied for change of revenue records in his name, the revenue authorities after due enquiry changed the entries in the name of defendant. It is denied that the plaintiff No.2 became the owner of the suit property by virtue settlement deed dated 13.06.2006. It is contended that plaintiffs have no right, title or interest over the suit properties. The suit filed by the plaintiffs is not maintainable and prayed to dismiss the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1. Whether the plaintiffs prove that the plaintiff No.1 never executed settlement deed dated 28.04.2005 in favour of the defendant either personally or through Power of Attorney Holder, that same is forged, illegal and not binding on the said plaintiffs?

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2. Whether the plaintiffs are entitled for the relief of declaration and permanent injunction as sought for?

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3. What order and what decree ?

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In order to prove the case of plaintiffs, the Power

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of Attorney holder of plaintiff No.1 was examined as PW.1 and got examined two witnesses as PW-2 & PW-3 and got marked 46 documents as Exs.P1 to P46. Defendant examined himself as DW-1 and got examined 3 witnesses as DWs-2 to DW-4 and got marked 14 documents as Exs.D1 to D14. The trial Court after considering the oral and documentary evidence of the parties, answered issue Nos.1 and 2 in the negative. Issue No.3 as per the final order. The plaintiff No.1 died during the pendency of the suit. Consequently, the trial Court dismissed the suit of the plaintiffs.

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NC: 2023:KHC:41720 RSA No. 408 of 2014

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The plaintiff No.2 aggrieved by the judgment and decree passed by the trial Court, filed an appeal in R.A.No.159/2008 before the Court of II Additional Senior Civil Judge, Mangalore, D.K.

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The First Appellate Court, after hearing the

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parties, has framed the following points for consideration:

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1. Whether the plaintiffs proved before the trial Court that they are the absolute owners in lawful possession of the suit property and interference of the defendant?

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2. Whether the order passed by the trial Court requires interference by this Court?

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3. What order or decree ?

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The First Appellate Court, on re-appreciating the

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oral and documentary evidence, answered point Nos.1 and 2 in the negative and consequently dismissed the appeal.

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The plaintiff No.2, aggrieved by the judgments and decrees passed by the Courts below, has filed this second appeal.

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NC: 2023:KHC:41720 RSA No. 408 of 2014

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Heard Sri. K. Phaneedra, learned senior counsel

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for the plaintiffs.

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Learned Senior counsel for the plaintiffs submits that plaintiff No.1 executed a General Power of Attorney and the power of attorney holder executed a settlement deed in favour of plaintiff No.2 and on the basis of settlement deed the plaintiff No.2 became the absolute owner. He submits that the defendant by playing a fraud on plaintiff No.1 withdrawn the cash from the bank and plaintiff No.1 lodged a complaint against the defendant. He further submits that the defendant has not acquired any title over the suit schedule properties on the alleged settlement deed dated 28.04.2005 alleged to have been executed by alleged GPA holder of plaintiff No.1. He submits that the Courts below have committed an error in recording finding that non examination of plaintiff No.1 has drawn an adverse inference. Hence, on these grounds, he prays to allow the appeal.

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NC: 2023:KHC:41720 RSA No. 408 of 2014

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Perused the records and considered the

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submissions of learned counsel for the parties.

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The plaintiffs in order to prove their case, the General Power of Attorney holder of plaintiff No.1 examined as PW.1 and he has reiterated plaint averments in the examination-in-chief and got marked documents viz., Ex.P.1 is the GPA executed by plaintiff No.1 in favour of PW.1; Ex.P.2 to 4 are the khata certificates stands in the name of plaintiff No.1; Ex.P5 is the endorsement dated 11.07.2006 issued by the revenue officers wherein the revenue authorities refused to effect mutation in the name of plaintiff No.2 on the ground that GPA holder of plaintiff No.1 had executed a settlement deed in favour of defendant on 28.04.2005; Ex.P.6 is the settlement deed executed by GPA holder of plaintiff No.1 in favour plaintiff No.2 on 13.06.2006; Ex.P.7 is the GPA executed by plaintiff No.1 in favour of Mr.Vinod J.J. Vas dated 03.06.2006; Ex.P.8 is the settlement deed executed in favour of defendant dated 28.04.2005; Ex.P.9 is the copy

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of the complaint lodged by plaintiff No.1 against the defendant; Ex.P.10 is the copy of receipt issued by the Kadri police station; Ex.P.11 is the copy of complaint filed by plaintiff No.1 to the Superintendent of Police; Ex.P.12 is the certified copy of the compromise petition; Ex.P.13 is the certified copy of the final decree with sketch; Ex.P.14 is the receipt issued by Mangaluru East police; Ex.P.15 and 16 are acknowledgments issued by Mangaluru East police; Ex.P.17 are photographs; Ex.P.18, Ex.P.22 and Ex.P.23 are the blood reports; Exs.P.19 and 21 are biochemical reports; Ex.P.20 is the chemical report; Exs.P.24 to 29 are medical bills; Ex.P.30 is provision diagnosis report; Ex.P.31 is medical certificate; Ex.P.32 is hospital bill; Exs.P.33 to 39 are receipts and Ex.P.40 is GPA.

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From the perusal of evidence of PW.1, which disclose that PW.1 has no personal knowledge about the facts of the case and further it is not the case of PW.1 that he has a personal knowledge about the facts of the case. The Hon'ble Apex Court in the case of Mohinder Kaur Vs.

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NC: 2023:KHC:41720 RSA No. 408 of 2014

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Sant Paul Singh reported in Civil Appeal Nos.28692870/2010 , wherein held that "GPA holder cannot depose for principal for the acts done by the principal and not by the GPA holder." Admittedly, in the instant case, the plaintiff No.1 has not entered into witness box to deny the execution of Power of Attorney in favour of Mr.Anuj Castelino i.e., Ex.D1 dated 22.04.2005 and further plaintiff No.2 has also not entered into witness box in order to prove their case . Further, the PWs.2 and 3 have no personal knowledge about the relationship of defendant with the plaintiffs. Further, the plaintiffs have also not challenged registered settlement deed dated 28.04.2005 executed in favour of defendant. The plaintiffs have filed a suit for declaration of ownership over the suit schedule properties, the burden is placed on the plaintiffs to prove that plaintiff No.1 never executed settlement deed dated 28.04.2005 in favour of the defendant either personally or through GPA holder and the same is forged, illegal and not binding.

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NC: 2023:KHC:41720 RSA No. 408 of 2014

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Admittedly, as observed above the plaintiff No.1 has not entered into witness box. If the plaintiff No.1 was not well and she could not able to move out of the house, she could have been examined through Court commissioner, but no such steps were taken neither by plaintiff No.1 nor by plaintiff No.2. In rebuttal, the defendant was examined himself as DW.1 and reiterated the written statement averments in the examination-inchief and got marked documents i.e., Ex.D.1 is the GPA executed by plaintiff No.1 in favour of Mr. Anuj Castelino dated 22.04.2005; Ex.D2 is the settlement deed dated 28.04.2005; Ex.D3 is the Temporary ration card; Ex.D.4 is the proceedings of P.O of M.C.C; Ex.D5 to 7 are the khata extracts, Ex.D8 and 9 are the assessment receipts; Ex.D10 is death certificate; Ex.D11 is original Abhyudaya Certificate; Ex.D12 and 13 are the cheques and Ex.D14 is RTC extract. Further, the defendant has examined 3 witnesses who have deposed that plaintiff No.1 executed GPA in favour of Mr. Anuj Castelino as per Ex.D1 and GPA

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NC: 2023:KHC:41720 RSA No. 408 of 2014

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holder of plaintiff No.1 executed settlement deed in favour

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of defendant on 28.04.2005.

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As the plaintiffs have not entered into witness box and failed to prove the case pleaded in the plaint, the trial Court was justified in discarding the evidence of PWs.1 and 2. The plaintiffs have failed to discharge the burden of proof. The Courts below have rightly passed the impugned judgments on the ground that non entering the plaintiffs into witness box and failed to prove the case as pleaded in the plaint. The Courts below after appreciating the material on record rightly passed the impugned judgments and decrees. Hence, both the Courts below have concurrently recorded the findings of facts against the plaintiffs. Hence, I do not find any substantial question of law that arises in this appeal and any error in the impugned judgments and decrees.

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NC: 2023:KHC:41720 RSA No. 408 of 2014

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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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The judgments and decrees passed by the

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Courts below are hereby confirmed.

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No order as to the costs.

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SD/JUDGE

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sks

Mrs Shalet Mathais v. Mr Mathew Mathais

Case brief

What is this about?

What did the court decide?

Mrs Shalet Mathais v. Mr Mathew Mathais

Case brief

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