Smt. Kamakshamma Vs Sri. Chikkamarappa

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.02.2025 PASSED IN RA NO.120/2016 ON THE FILE OF IX ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.03.2016 PASSED IN OS NO.666/2002 ON THE FILE OF LEARNED I ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU.

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

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ORAL JUDGMENT

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Heard Sri.M.B.Chandra Chooda, learned counsel for the appellant and Sri.M.Erappa Reddy, learned counsel for respondent No.1

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Present second appeal is filed by the unsuccessful plaintiff challenging the validity of the impugned judgments, where under the suit of the plaintiff in O.S.No.666/2002 was dismissed and same was confirmed in RA No.120/2016.

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NC: 2025:KHC:29910 RSA No. 739 of 2025

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HC-KAR

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Facts in brief which are utmost necessary for

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disposal of the appeal are as under:

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3.1. Plaintiff claim that he is the owner in possession

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and enjoyment of property in Sy.No.96/5, measuring 1 acre 19 guntas and kharab of 9 guntas, totally measuring 1 acre 28 guntas of Doddathogur village, Begur Hobli, Bengaluru South Taluk. He acquired the same at a family partition between him and his three brothers on 15.10.1971.

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3.2. It is his further contention that though the partition was effected in 1971, till upto 1993 khatha of the suit property stood in the name of Muniyappa, who is the elder brother of the plaintiff. He died on 23.12.1993. After his death, as per the partition, respective names were mutated and suit property of the fifth item in the ‘B’ schedule in the partition deed.

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HC-KAR

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3.3. Since the plaintiff had no male issues,

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defendant No.1 demanded that suit property be sold to him for the lowest price and plaintiff refused the said offer. Defendant No.1 attempted to tress pass over the suit property on 20.08.1995. Therefore, he was constrained to file O.S.No.492/1995, wherein he obtained an order of temporary injunction. Thereafter defendant No.1 set up one Venkataramanappa and others and filed an application before the revenue authorities in respect of revenue entries.

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3.4. It is also contention of the plaintiff that the suit in O.S.No.492/1995 came to be decreed. It is further case of the plaintiff that he was residing in Kumaraswamy Layout, Bengaluru. On account of his ill health, he has executed a General Power of Attorney in favour of defendant No.2 on 19.06.1996 to maintain and look after the suit property.

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3.5. Plaintiff further contended that after decreeing O.S.No.492/1995, on 30.06.2001 plaintiff approached the

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NC: 2025:KHC:29910 RSA No. 739 of 2025

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HC-KAR

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Sub Registrar, Bengaluru South Taluk, Koramangala to

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cancel the General Power of Attorney executed on 19.06.1996 in favour of defendant No.2 and at that juncture, he came to know that said General Power of Attorney was already revoked by forging the signature of the plaintiff and his son-in-law Krishnappa.

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3.6. It is also learnt by the plaintiff that one more General Power of Attorney was executed in favour of defendant No.2 by forging the signature of the plaintiff and his son-in-law Krishnappa.

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3.7. Being surprised with said revelation of factual aspects, plaintiff has submitted a representation to Sub Registrar, Bengaluru South Taluk and also to concerned Tahasildar on 02.07.2001. Defendant No.2 approached

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the plaintiff and his son-in-law and tendered apology. De No.2requested the plaintiff not to initiate any criminal proceedings and he assured that the mistake committed by them would be set right.

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NC: 2025:KHC:29910 RSA No. 739 of 2025

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HC-KAR

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3.8. Being satisfied with the apology, plaintiff did not

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initiate any criminal action, but soon thereafter he fell ill and bedridden for months together.

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3.9. Later on he came to know that based on the subsequent General Power of Attorney which was fraudulently executed in the name of the plaintiff, defendant No.2 executed a sale deed in favour of defendant No.1 on 29.08.2001 in respect of suit property. Therefore, he has approached the Trial Court for necessary relief and also initiated criminal action.

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Upon service of suit summons, defendant No.2 remained exparte and defendant No.1 appeared before the Court and filed detailed written statement denying the plaint averments in toto .

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Learned Trial Judge after raising necessary issues, recorded the evidence of the parties and after hearing the parties in detail dismissed the suit by judgment dated 16.03.2016.

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NC: 2025:KHC:29910 RSA No. 739 of 2025

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HC-KAR

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Being aggrieved by the same, plaintiff filed an

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appeal before the First Appellate Court in RA No.120/2016.

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Learned Judge in the First Appellate Court reappreciated the material evidence on record and also the factual aspects and bestowed its best attention to the oral evidence of C.W.1 who is an expert who examined the thumb impression and dismissed the appeal.

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In other words, the First Appellate Court considered the case of the appellant in the light of the appeal grounds, especially with regard to the alleged impersonation in cancelling the Power of Attorney in favour of the plaintiff and also execution of the fresh Power of Attorney in favour of defendant No.2 and has recorded a categorical finding that the case of the plaintiff is not established. Though the contents of judgment of the First Appellate Court is not happily worded, the finding is based on proper reappreciation of the material evidence in the factual aspects.

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NC: 2025:KHC:29910 RSA No. 739 of 2025

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HC-KAR

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Being further aggrieved by the same, present

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appeal is preferred by the unsuccessful plaintiff on the following substantial questions of law:

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1. Whether the Courts below were justified in dismissing the suit of the plaintiff ignoring the fact that the General Power of Attorney dated 09.10.1996 has been forged impersonated, the plaintiff is not a party to the said document?

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2. Whether the Courts below were justified in holding that, the plaintiff did not entered the witness box, drawing an adverse inference against the plaintiff, by that time, the plaintiff was no more?

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3. Whether the Courts below were justified in dismissing the suit of the plaintiff ignoring the previous litigation between the plaintiff and defendant No.1 in respect of the schedule property?

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4. Whether the judgment and decree of the Courts below is resulted in miscarriage of justice on account of non consideration of the oral and documentary evidence?

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HC-KAR

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5. Whether the Appellate Court is justified in not considering the application IA No.3 filed by the plaintiff for appointment of handwriting expert for comparision of LTM of Perumappa found on the Ex.D2 and the admitted the signature found in O.S.No.666/2002, in spite of the application filed U/O 26 Rule 10(a) of CPC?

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Learned counsel for the appellant vehemently contended that both the Courts wrongly appreciated the material evidence with regard to the fraudulent execution of subsequent Power of Attorney and grossly erred in dismissing the suit of the plaintiff.

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It is further contention of the appellant that both the Courts wrongly recorded a finding that for want of examination of the plaintiff, adverse inference has to be drawn against the plaintiff.

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It is his further argument that plaintiff being a party to the earlier litigation and though the same is placed on record, both the Courts have not properly appreciated the same.

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HC-KAR

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It is also his further arguments that, before the First Appellate Court, an application came to be filed and inspite of such an application, additional evidence was not taken into consideration resulting in miscarriage of justice and sought for admitting the matter for further consideration.

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Learned counsel for the contesting respondents supports the impugned judgments by contending that, both the Courts have bestowed their best attention with regard to the rival contentions of the parties. An expert has been appointed as Court Commissioner to compare the admitted and disputed left thumb impression of and based on the commissioner’s report, there is proper appreciation of the material evidence in the impugned judgment resulting in dismissal of the suit of the plaintiff; which is just and proper and sought for dismissal of the appeal.

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NC: 2025:KHC:29910 RSA No. 739 of 2025

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HC-KAR

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Having bestowed the best attention to the rival contentions of the parties, this Court perused the material on record meticulously.

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On such perusal of the material on record, plaintiff took a specific contention that the Power of Attorney executed by him in favour of defendant No.2 – D.N.B.Lakshmi on 09.10.1996 is not a genuine document and plaintiff was impersonated and by forging the LTM of the plaintiff, fresh Power of Attorney has come into existence.

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To establish the said aspect of the matter, plaintiff did not step into the witness box, for the reasons best known to him. Son in law namely L.Krishnappa was examined as P.W.1.

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In a matter of this nature, it is the plaintiff who is required to step into the witness box and specifically depose before the Court about the alleged fraudulent execution of the Power of Attorney.

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HC-KAR

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When such evidence was not placed on record, both the Courts were justified in drawing an adverse inference against the plaintiff.

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There is no bar for examining a party through his or her Power of Attorney. But such of the factual aspects which are in the personal knowledge of a particular party and if the party is alive, must be proved by examining such party.

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Therefore, the evidence of L.Krishnappa who is examined as P.W.1 based on the Power of Attorney executed by the plaintiff in his favour could not have been relied upon by the Courts below to hold that the Power of Attorney executed by the plaintiff in favour of defendant No.2 on 09.10.1996 is a fraudulent document.

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Moreover, the expert evidence is also taken into consideration before holding that the Power of Attorney dated 09.10.1996 is a genuine document.

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HC-KAR

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The Courts have recorded a categorical finding about the validity of the Power of Attorney executed by the plaintiff on 09.10.1996 in favour of defendant No.2 and held that said Power of Attorney is genuine. Defendant No.2 in turn selling the property in favour of defendant No.1 who is none other than the brother of the plaintiff is thus just and valid.

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In view of the above factual aspects of the matter, none of the substantial questions of law raised in the appeal memorandum would merit for further consideration.

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Accordingly, the following:

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ORDER

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Appeal is meritless and hereby dismissed .

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Sd/(V SRISHANANDA) JUDGE

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KAV List No.: 1 Sl No.: 61/CT: BHK

Smt. Kamakshamma v. Sri. Chikkamarappa

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Smt. Kamakshamma v. Sri. Chikkamarappa

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