Sri D Lokanathan Vs a Farnandis

THIS RFA IS FILED UNDER SECTION 96 READ WITH O-41, R-1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.12.2010 PASSED IN O.S. NO.2146/2004 ON THE FILE OF THE I-ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION AND ETC.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The present appeal is preferred by the unsuccessful plaintiffs, calling in question the judgment and decree dated 18.12.2010 passed in O.S.No.2146/2004 on the file

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of the Court of the I Additional City Civil and Sessions Judge, Bangalore City (CCH No.2). By the impugned judgment, the learned Trial Judge has dismissed the suit instituted by the plaintiffs seeking a declaration that the alleged General Power of Attorney dated 27.07.1987 said to have been executed in favour of defendant No.1 is a fabricated and bogus document and is not binding on them. The plaintiffs had further sought a declaration that the registered Sale Deed dated 19.10.1987 executed by

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defendant No.1, acting as GPA holder, in favour of defendant No.2 is null and void, not binding on their rights, and liable to be cancelled. Being aggrieved by the dismissal of the suit, the plaintiffs are before this Court in the present appeal.

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2. For the sake of convenience and to avoid

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confusion, the parties shall hereinafter be referred to in terms of their rank before the Trial Court.

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The brief facts leading to the filing of the suit are

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as follows:

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The plaintiffs, asserting themselves to be the absolute owners of the suit schedule property, instituted O.S.No.2146/2004 seeking the following reliefs:

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ಎ ) ಅನುಸೂ� - ಇ ಜನರ� ಪವ� ಆ� ಅ�ಾ�� , 4 �ೇ ಪ�ಸ�ಕ , 161 �ೇ ಸಂಪ�ಟ , 155-157 �ೇ ಪ�ಟಗಳ� 116 �ೇ ಸಂ!ೆ"#ಾ$ 87-88 �ೇ %ಾ�ನ� �ೊಂ&ಾ'(ದ �ಾಂಕ : 277-1987, +ೇಂ,ೕಯ ಉಪ�ೋಂದ/ಾ0+ಾ1 , 2ಾಂ0ನಗರ , 3ೆಂಗಳ4ರು ಈ ಜನರ� ಪವ� ಆ6 ಅ�ಾ��ಯು ಸುಳ78 ಸೃ:;'ಂದ ಮತು� >ೕಸಂದ ಕೂ?ದು@ ಎಂತಲೂ Bಾಗೂ ಈ &ಾಖDಾEಯ FೕDೆ Gಾಗಳ ಸH ಇಲ Gೆಂತಲೂ ಸುಳ78 ಸೃ:;ಯ ಸHಗಳನುI 1 ಮತು� 2 �ೇ ಪ,EGಾಗಳ7 Jಾ?&ಾ@Kೆಂದು Lೂೕ:ಸಲು Gಾಗಳ7 +ೇಳ7Mಾ�Kೆ .

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N ) ಅನುಸೂ� - ಎ6 :- ಈ ಕ,ಯಪತ, 2 �ೇ ಪ,EGಾಯು ಒಂದ�ೇ ಪ,EGಾಯು Jಾ?ರುವ�ದು Gಾ*ಗP2ೆ 3ಾಧ"Mೆ2ೊPಸುವ�*ಲ Gೆಂತಲೂ , ಅನುಸೂ� ಎ6 ಕ,ಯಪತ,ದ Rವರ :- �ಾಂಕ : 19-10-1987 Sಾಕೂ"FಂT ನಂ . 2079/87-88, ಬುV ನಂ .1, Gಾಲೂ"ಂ 3385, ಪ�ಟ2ಾಳ7 223 1ಂದ 229, �ಾಂಕ : 28-10-1987 ಈ ಕ,ಯಪತ,ವನುI Jಾ?+ೊಡಲು ಒಂದ�ೇ ಪ,EGಾ2ೆ #ಾವ�&ೇ ಅ0+ಾರ ಪತ,ವನುI Gಾಗಳ7 ಒಂದ�ೇ

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ಪ,EGಾ* �ೕಡ&ೇ ಇದು@ದ1ಂದ ಸುಳ78 ಜನರ� ಪವ� ಆ6 ಅ�ಾ��'ಂದ ಸುಳ78 ಜನರ� ಪವ� ಆ6 ಅ�ಾ��'ಂದ ಸುಳ78 , >ೕಸಂದ Jಾ?ದ@1ಂದ ಈ ಸದ1 ಕ,ಯ ಪತ,ವ� GಾಗP2ೆ #ಾವ�&ೇ 3ಾಧ"Mೆ , Bೊ/ೆ2ಾ1+ೆ ಇಲ Gೆಂತಲೂ Bಾಗೂ ಕ,ಯಪತ,ವನುI ರದು@2ೊPಸಲು Gಾ*ಯು +ೇಳ7Mಾ�Kೆ .

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¹) ಈ &ಾGಾ Xೆಡೂ"� ಸYE�ನ� ಮೂರ�ೇ ಪ,EGಾಯು ಎರಡ�ೇ ಪ,EGಾಯ ಸBಾಯಂದ ಅEಕ,ಮGಾ$ ಮತು� ಅಕ,ಮGಾ$ �ೆಲ(ದ@1ಂದ ಪ,EGಾಗಳನುI ಈ &ಾGಾ Xೆಡೂ"� ಸYE � ಂದ Bೊರ BಾZ GಾಗP2ೆ ಈ &ಾGಾ Xೆಡೂ"� ಸYE�ನ %ಾY0ೕನವನುI +ೊ?ಸ3ೇ+ೆಂದು Gಾಗಳ7 +ೇಳ7Mಾ�Kೆ .

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r) ಈ &ಾGಾ Xೆಡೂ"� ಸYತ�ನುI ಪ,EGಾಗಳ7 ಪರ[ಾKೆ , [ೋಗ" , ಅಡJಾನ , ಕ,ಯ #ಾ1ಗೂ Jಾಡ&ೇ ಇರಲು \ಾಶYತ ಮತು� MಾMಾ^�ಕ �ಬ�ಂ&ಾ_ೆಯನುI �ೕಡ3ೇ+ೆಂದು Gಾಗಳ7 +ೇಳ7Mಾ�Kೆ ."

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The plaintiffs have pleaded that plaintiff No.1 derived title to the suit schedule property through his mother, late Smt. Saraswathi Bai, under a Will dated 24.04.1980. It is their specific case that though plaintiff No.1 became the beneficiary under the said Will, the bequest conferred upon him only a limited or life interest and that, upon his demise, the property was to devolve

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upon his two sons in terms of the testamentary disposition. The plaintiffs have further averred that they had no knowledge of any alienation until 18.08.2001, when defendant No.2 is stated to have produced a registered General Power of Attorney before the Assistant Executive Engineer, Bengaluru City Corporation. According to the plaintiffs, it was only at that juncture that they came to know of the alleged fabrication of the General Power of Attorney dated 27.07.1987 and the consequent registered Sale Deed dated 19.10.1987 said to have been executed by defendant No.1 in favour of defendant No.2. They contend that the said documents were brought into existence in collusion between defendant Nos.1 and 2. The plaintiffs have also asserted that they executed a Deed of Revocation cancelling the alleged Power of Attorney. Alleging further that defendant No.3 had trespassed upon

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the suit schedule property without their consent or authority, the present suit came to be instituted.

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Upon service of summons, defendant No.2

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entered appearance and filed a detailed written statement, denying the plaint averments in toto. Defendant No.2, on the contrary, asserted that plaintiff No.1, having acquired

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the property under the Will dated 24.04.1980, had voluntarily executed a registered General Power of Attorney dated 27.07.1987 in favour of defendant No.1, authorising him to deal with and alienate the suit property. It was contended that defendant No.1, acting as a duly constituted attorney of plaintiff No.1, executed a registered Sale Deed dated 19.10.1987 in favour of defendant No.2, thereby conveying valid right, title and interest in respect of the suit property. On these grounds, defendant No.2 sought dismissal of the suit.

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In view of the rival pleadings, the Trial Court framed appropriate issues for determination and the parties were called upon to adduce evidence in support of their respective claims.

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In support of their case, the plaintiffs examined plaintiff No.3 as P.W.1 and produced seven documents marked as Exs.P.1 to P.7. On behalf of the defendants, defendant No.2 examined herself as D.W.1 and relied upon seven documents, which were marked as Exs.D.1 to D.7.

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Upon appreciation of the oral and documentary evidence on record, the Trial Court drew an adverse inference against the plaintiffs. The Court particularly noted that plaintiff No.1, who was the alleged executant of the registered General Power of Attorney, did not step into the witness box to deny execution of the document or to subject himself to cross-examination. Invoking the presumption under Section 114(g) of the Indian Evidence Act, 1872 the Trial Court held that an adverse inference was liable to be drawn against plaintiff No.1. The Trial Court ultimately concluded that the plaintiffs had failed to establish that the registered General Power of Attorney dated 27.07.1987 and the consequential Sale Deed dated

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19.10.1987 were fraudulent or fabricated documents.

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Accordingly, the suit came to be dismissed.

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Heard the learned counsel appearing for the plaintiffs–appellants and the learned counsel appearing for respondent No.2. This Court has carefully re-appreciated the pleadings and the entire oral and documentary evidence available on record.

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In the light of the contentions urged and the material on record, the following points arise for consideration:

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(i) Whether the finding of the Trial Court that the plaintiffs have failed to substantiate their plea that the registered General Power of Attorney dated 27.07.1987 (Ex.P.7) and the consequential registered Sale Deed dated 19.10.1987 (Ex.P.6) executed by defendant No.1 in favour of defendant No.2 are concocted and fraudulent documents suffers from perversity or

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illegality so as to warrant interference in this appeal?

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(ii) What order?

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Findings on Point No.(i) :-

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The records reveal that the present suit came to be instituted in the year 2004 challenging the registered General Power of Attorney dated 27.07.1987 and the consequential registered Sale Deed dated 19.10.1987 executed by defendant No.1 in favour of defendant No.2. A careful reading of the prayer column in the plaint discloses that, though the plaintiffs have sought a declaration that the said documents are null and void and not binding on them and have also sought cancellation of the sale deed, they have conspicuously omitted to seek the consequential relief of recovery of possession. The rebuttal evidence adduced by defendant No.2, both oral and documentary, clearly establishes that defendant No.2 is in settled possession of the suit schedule property pursuant to the registered conveyance. In a suit of this

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nature, where the plaintiffs challenge an alienation effected decades earlier, failure to seek possession, particularly when the defendants are shown to be in possession, assumes significance and casts a serious doubt on the bona fides and maintainability of the relief sought.

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Be that as it may, when an erstwhile owner institutes a suit impeaching the authority conferred under a registered General Power of Attorney and the consequential alienation made thereunder, and specifically pleads fraud and fabrication, the law casts a stringent obligation upon such plaintiff. Allegations of fraud are not

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to be lightly made; they must be pleaded with full particulars in strict compliance with the mandate under Order VI Rule 4 of the Code of Civil Procedure, 1908. The object of insisting upon specific particulars of fraud is to ensure that the opposite party is clearly apprised of the precise case it has to meet and to prevent a trial by ambush. Where such particulars are absent or vague, the

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plaint itself becomes defective insofar as the plea of fraud is concerned.

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In the present case, plaintiff No.1 admittedly derived title under the Will dated 24.04.1980. It was therefore incumbent upon him, when alleging that the registered General Power of Attorney dated 27.07.1987 was fabricated or fraudulently obtained, to enter the witness box and substantiate such serious allegations. Strangely, plaintiff No.1, who is stated to be a practicing Advocate, has chosen not to depose before the Court. Instead, plaintiff No.3 who was a minor at the relevant point of time when the sale transaction of 1987 took place has stepped into the witness box as P.W.1. This omission on the part of plaintiff No.1, who alone could have directly spoken about the alleged non-execution or fraud, assumes great evidentiary significance.

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On a close scrutiny of the examination-in-chief and cross-examination of P.W.1, it is evident that plaintiff

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No.3 lacks personal knowledge of the material events of the year 1987. His testimony does not inspire confidence and is largely based on assumptions rather than first-hand knowledge. In such circumstances, an adverse inference is liable to be drawn under Section 114(g) of the Indian Evidence Act, 1872 against plaintiff No.1 for withholding himself from the witness box. Fraud and fabrication are serious imputations carrying civil consequences, and such allegations cannot be sustained on the basis of bald averments in the plaint without cogent and convincing evidence.

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It is also pertinent to note that the plaintiffs have not taken effective steps to summon the original records from the office of the Sub-Registrar, including the original General Power of Attorney or the relevant registers, nor have they sought comparison of the disputed signature of plaintiff No.1 with admitted signatures through expert evidence. In the absence of

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such steps, the plea of fraud remains unsubstantiated and speculative.

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The tenor of the pleadings and the manner in which the suit has been instituted indicate that the plaintiffs have attempted to reopen a transaction that took place as far back as in 1987 by taking a chance after a considerable lapse of time. Though the Trial Court has not expressly invoked Section 3 of the Limitation Act, 1963, it is evident that the reliefs sought were prima facie barred by limitation in the absence of specific and credible pleadings explaining delayed knowledge of the alleged fraud. When fraud is pleaded to save limitation, the burden lies heavily on the plaintiffs to establish the date of knowledge and the circumstances under which such knowledge was acquired. Such burden has not been discharged.

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On the contrary, defendant No.2 has adduced cogent rebuttal evidence demonstrating that plaintiff No.1

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had executed a registered General Power of Attorney in favour of defendant No.1, thereby creating a valid agency. Acting under such authority, defendant No.1 executed a registered Sale Deed dated 19.10.1987 in favour of defendant No.2 for valuable consideration. The presumption attached to registered documents has not been displaced by the plaintiffs. The evidence on record sufficiently establishes that defendant No.2 has acquired valid title and is in possession of the suit schedule property.

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In that view of the matter, upon independent re-appreciation of the entire oral and documentary evidence, this Court is of the considered opinion that the plaintiffs have failed to substantiate the plea of fraud or fabrication. The Trial Court has properly appreciated the material on record and its findings do not suffer from perversity, illegality or misapplication of law warranting interference. Accordingly, point No.(i) is answered in the

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“Negative.”

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