Dismissed

Shivananda Venkatesh Shetty v. Sri Nagarajan N

Karnataka HC19 Aug 2024RSA/722/2022

Case brief

AI extract

What is this about?

This appeal concerns a property dispute. The appellant regularly challenged the lower courts' decree in favor of the plaintiff, who claimed ownership via a registered sale deed. The High Court noted the unregistered Power of Attorney used by defendants was insufficient under Supreme Court law, rejecting claims of perversity. The appeal was dismissed for failure to maintain a substantial question o

What did the court decide?

Regular Second Appeal no.722 of 2022 dismissed at admission stage.

Shivananda Venkatesh Shetty Vs Sri Nagarajan N — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:34305 RSA NO.722 OF 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE E.S. INDIRESH REGULAR SECOND APPEAL NO.722 OF 2022 (DEC/INJ)

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BETWEEN:

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SHIVANANDA VENKATESH SHETTY S/O VENKATESH NAGAPPA SHETTY AGED ABOUT 44 YEARS, R/AT 213/A 4^TH BLOCK, 54^TH CROSS RAJAJINAGAR, BENGALURU - 560 010. (BY SRI. H.S. SANTHOSH, ADVOCATE)

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…APPELLANT

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AND:

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Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka

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SRI. NAGARAJAN N. S/O S. NARASIMHA UPADHYA AGED ABOUT 61 YEARS, R/AT NO.889, SHISHUPALANA KENDRA, MANJUNATHASWAMY TEMPLE ROAD, 4^TH PHASE ADDL., GIRINAGAR, BENGALURU - 560 085.

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…RESPONDENT (BY SRI. D.P. MAHESH, ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 29^TH JANUARY, 2022 PASSED IN REGULAR APPEAL NO.18 OF 2021 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21^ST DECEMBER, 2020 PASSED IN ORIGINAL SUIT NO.1008 OF 2010 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU.

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NC: 2024:KHC:34305 RSA NO.722 OF 2022

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH

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ORAL JUDGMENT

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This Regular Second Appeal is preferred by the defendant No.2, challenging the judgment and decree dated 29^th January, 2022 passed in Regular Appeal No.18 of 2021 on the file of the Principal District and Sessions Judge, Bengaluru Rural District, Bengaluru (for short, hereinafter referred to as 'First Appellate Court'), dismissing the appeal and confirming the judgment and decree dated 21^st December, 2020 passed in Original Suit No.1008 of 2010 on the file of the II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru (for short, hereinafter referred to as 'Trial Court'), wherein the suit filed by the plaintiff came to be decreed.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court.

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It is the case of the plaintiff that the property bearing Survey No.53 situate at Challaghatta Village, Bengaluru South Taluk measuring 11 acre 32 guntas including 2 guntas of

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3 - NC: 2024:KHC:34305 RSA NO.722 OF 2022

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Kharab land was belonging to one Byrappa and his family and they have sold the same in favour of the defendant No.5 and one Dhananjaya as per registered Sale Deed dated 10^th February, 2006. It is further stated that the plaintiff had purchased 26 guntas of land out of 1 acre 32 guntas in Survey No.53 of Challaghatta village as per registered Sale Deed dated 27^th April, 2007. It is further case of the plaintiff that, during the month of October-2010, the plaintiff came to know that the defendant No.1 claiming to be the Power of Attorney Holder of the land, had executed registered Sale Deed dated 04^th September, 2008 in favour of defendants 2 and 3 and as such, it is the contention of the plaintiff that the defendants are strangers to the property in question and therefore, the plaintiff has filed Original Suit No.1008 of 2010 before the Trial Court seeking relief of declaration and injunction.

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On service of summons, defendants entered appearance and defendants 1 to 4 have contested the matter by filing the written statement. It is the case of defendants 1 to 4 that the plaintiff has executed General Power of Attorney in favour of the defendant No.1 and based on the said General Power of Attorney, the defendant No.1 has executed registered

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NC: 2024:KHC:34305 RSA NO.722 OF 2022

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Sale Deed in respect of the suit schedule property in favour of defendants 2 and 3 and therefore, the defendants sought for dismissal of the suit.

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Based on the pleadings on record, the Trial Court has framed issues and additional issues for its consideration.

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In other to establish their case, the plaintiff was examined as PW1 and got marked 11 documents as Exhibits P1 to P11. On the other hand defendants examined three witnesses as DW1 to DW3 and got marked 7 documents as Exhibits D1 to D7.

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The Trial Court, after considering the material on record, by its judgment and decree dated 21^st December, 2020 decreed the suit of the plaintiff and as such, restrained the defendants from interfering with the suit schedule property. Being aggrieved by the same, the defendant No.2 has preferred Regular Appeal No.18 of 2021 before the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court, after re-appreciating the material on record, by its judgment and decree dated 29^th January, 2022, dismissed the appeal, consequently confirmed the judgment and decree

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5 - NC: 2024:KHC:34305 RSA NO.722 OF 2022

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passed in Original Suit No.1008 of 2010. Being aggrieved by the same, the defendant No.2 preferred this Regular Second Appeal..

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Heard Sri. H.S. Santhosh, learned counsel appearing for the appellant and Sri. D.P. Mahesh, learned counsel appearing for the respondent.

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Sri. H.S. Santhosh, learned counsel appearing for the appellant/defendant No.2 contended that, both the Courts below have failed to consider the registration of Sale Deed dated 04^th September, 2008, whereby, the consideration has been made in respect of the schedule property and that apart, the plaintiff without seeking cancellation of General Power of Attorney made in favour of the defendant No.1 has filed a suit, which itself is not maintainable. Accordingly, learned counsel appearing for the appellant sought for interference of this Court.

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Per contra, Sri. D.P. Mahesh, learned counsel appearing for the respondent/plaintiff contended that the deed of conveyance made based on the unregistered General Power

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6 - NC: 2024:KHC:34305 RSA NO.722 OF 2022

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of Attorney does not confer title. Accordingly, he sought for dismissal of the appeal.

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In the light of the submission made by the learned counsel appearing for the parties and on careful examination of finding recorded by the both the Courts below, it is not in dispute that the plaintiff is the owner of the suit schedule property as per the registered Sale Deed dated 27^th April, 2007 (Exhibit P3). It is the case of the defendants 1 to 4 that the defendant No.1 sold the suit schedule property, based on the unregistered General Power of Attorney dated 27^th August, 2008 (Exhibit D1) in favour of the defendants 2 and 3 as per registered Sale deed dated 04^th September, 2008 (AnnexureD2). It is the case of the plaintiff that the defendants have committed fraud and he has not given authority to the defendant No.1 to sell the suit schedule property. In view of the law declared by Hon'ble Supreme Court in the case of SURAJ

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LAMP AND INDUSTRIES PVT. LTD. vs. STATE OF HARYANA AND ANOTHER reported in (2012)1 SCC 656 , the sale of immovable property based on the Power of Attorney requires compulsory registration and that apart, the parties have to prove the actual transaction if any, subsequent to such

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NC: 2024:KHC:34305 RSA NO.722 OF 2022

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registered document. In the present case, the General Power of Attorney produced at Exhibit D1 is unregistered document and the defendant No.1 has not lead any evidence before the Trial Court with regard to transfer of Sale consideration in favour of the plaintiff. In that view of the matter, as the General Power of Attorney stated above is unregistered document, the finding recorded by both the Courts below is just and proper. The First Appellate Court after re-appreciating the material on record, had rightly come to the conclusion to confirm the judgment and decree passed by the Trial Court. Therefore, I do not find any perversity in the impugned judgment and decree passed by the Courts below. As the appellant/defendant No.2 failed to make out a case for framing of substantial question of law as required under Section 100 of the Code of Civil Procedure, this appeal deserves to be dismissed at admission stage itself. Accordingly, Regular Second Appeal is dismissed.

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SD/(E.S. INDIRESH) JUDGE

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ARK

Shivananda Venkatesh Shetty v. Sri Nagarajan N

Case brief

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Shivananda Venkatesh Shetty v. Sri Nagarajan N

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