Karnataka High Court
Smt. Marakka vs G Honnananjappa on 25 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:29280
RSA No. 1209 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1209 OF 2022 (DEC/INJ)
BETWEEN:
1. SMT. MARAKKA
WIFE OF LATE MUNIYAPPA
AGED ABOUT 76 YEARS
2. SRI RAMACHANDRAPPA
SON OF LATE MUNIYAPPA
AGED ABOUT 53 YEARS
3. SRI RANGASWAMY
SON OF LATE MUNIYAPPA
AGED ABOUT 38 YEARS
ALL ARE R/AT CHANDRAPPA CIRCLE
Digitally signed
by DEVIKA M TAVAREKERE HOBLI
Location: HIGH BANGALORE SOUTH TALUK
COURT OF ...APPELLANTS
KARNATAKA
(BY SRI ALLAH BAKASH M, ADVOCATE)
AND:
1. G HONNANANJAPPA
SON OF LATE GURUMURTHY ACHAR
AGED ABOUT 79 YEARS
RESIDING AT NO 778
HESSARAGHATTA VILLAGE
BANGALORE - 560088
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NC: 2024:KHC:29280
RSA No. 1209 of 2022
2. M VIJAYAKUMAR
SON OF LATE M P MURTHY
AGED ABOUT 48 YEARS
RESIDING AT No.4
2ND FLOOR, 3RD CROSS
HAVANURU LAYOUT
HESSARAGHATTA MAIN ROAD
BANGALORE - 560073
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 CPC 1908
AGAINST THE JUDGMENT AND DECREE DATED 13.01.2022
PASSED IN R.A.No.19/2020 ON THE FILE OF THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
RAMANAGARA AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE H.P.SANDESH) This matter is listed for admission. Heard the learned counsel appearing for the appellants.
2. The factual matrix of the case of the plaintiffs before the Trial Court that they have approached the Trial Court to cancel the sale deed dated 15.03.2010 executed by defendant No.1 in favour of defendant No.2 and for permanent injunction. The plaintiffs contend that plaintiff -3- NC: 2024:KHC:29280 RSA No. 1209 of 2022 No.1 is the widow of late Muniyappa and the plaintiffs No.2 and 3 are the sons of Muniyappa and the said Muniyappa died on 28.12.2011. It is contended that half portion of the suit schedule property is an ancestral property of Muniyappa and other half portion of suit schedule property was purchased by Muniyappa from Rangappa, Govindappa and Basappa under separate sale deeds. Hence, Muniyappa was in possession of the suit schedule property and after his death, the plaintiffs by paying kandayam are in possession of the suit schedule property. It is contended that one Venkataramanappa being the adjacent land owner on the northern side of the suit schedule property illegally constructed the building there. In this regard, Muniyappa instituted O.S.No.85/1999 for declaration and mandatory injunction against Venkataramanappa and the said suit was decreed in favour of Muniyappa on 07.04.2000.
3. It is also contended that late Muniyappa preferred execution petition to execute the said decree and on 28.07.2000, the Court passed the orders for -4- NC: 2024:KHC:29280 RSA No. 1209 of 2022 demolition of the illegal construction through the Court Commissioner. It is contended that defendant No.1 and late Muniyappa were friends. Defendant No.1 had knowledge of the proceedings in O.S.No.85/1999 and the execution case. As such, Muniyappa requested defendant No.1 to assist him and accordingly, defendant No.1 promised Muniyappa that he would demolish the illegal construction and recover the possession from Venkataramanappa. Then, the husband of the plaintiff No.1 Muniyappa executed General Power of Attorney (GPA) with respect to the suit schedule property on 21.08.2000.
4. It is contended that in the said power of attorney, the purpose for executing the same is mentioned. But defendant No.1 has acted beyond the purpose of the said GPA. Therefore, Muniyappa cancelled the registered GPA on 31.08.2009. In this regard, he got issued legal notice dated 13.01.2010 to defendant No.1 and defendant No.1 intentionally not received the said notice. It is also contended that defendant No.1 had no -5- NC: 2024:KHC:29280 RSA No. 1209 of 2022 right to deal with the said suit schedule property as Muniyappa had cancelled the GPA on 31.08.2009. Still, defendant No.1 executed the sale deed in favour of defendant No.2 on 15.03.2010 which is not sustainable under law. It is contended that plaintiffs are in possession and enjoyment of the suit schedule property not the defendants.
5. In pursuance of suit summons, defendant Nos.1 and 2 appeared before the Court and filed their written statement wherein they have admitted the relationship of the plaintiffs with late Muniyappa. The defendants have further admitted the death of Muniyappa on 28.12.2011 and the suit schedule property was owned by Muniyappa. Admittedly, the suit schedule property consisted of a small house and vacant land. Admittedly, late Muniyappa had khatha in respect of the property. The defendants have further admitted that Venkataramanappa was the owner of the adjacent property to the suit schedule property and had encroached upon a portion of suit property. Hence, -6- NC: 2024:KHC:29280 RSA No. 1209 of 2022 the late Muniyappa filed O.S.No.85/1999 and the same was decreed.
6. It is further contended that on 20.07.2000, late Muniyappa entered into an agreement of sell in respect of the suit schedule property with the wife of defendant No.1 for consideration of Rs.1,25,000/-. On the date of the sale agreement, late Muniyappa received Rs.50,000/- as advance consideration from the wife of defendant No.1. At that time, there was an exparte decree obtained by late Muniyappa against Venkataramanappa for removal of encroachment in a portion of the plaintiff's suit schedule property. Since, Venkataramanappa was an influential person, late Muniyappa found it difficult to get the decree executed, as such late Muniyappa approached defendant No.1 after entering into the sale agreement with the wife of defendant No.1 to get the decree executed by meeting the cost of removal by whatever means permissible in the course of the execution. Then, late Muniyappa executed registered irrevocable GPA in favour of defendant No.1 on 18.08.2000. It is further contended that pursuant to the -7- NC: 2024:KHC:29280 RSA No. 1209 of 2022 said GPA, defendant No.1 was required to get the decree executed and encroachment removed by incurring the cost which was to be recovered by sale of the suit schedule property and also for recovery of Rs.50,000/- paid earlier as advance under the agreement of sale dated 20.07.2000. Defendant No.1 took steps in the execution in the third week of August 2000 and he entrusted the work of removal of encroachment to Gopal Gowda who required to be assisted the Commissioner appointed by the Court. The said Gopal Gowda engaged about 100 skilled workers and also a JCB and a TATA Sumo vehicle with a driver by name Ramesha for the safety of defendant No.1. At the time of execution of delivery warrant, the driver Ramesha remained at a distant spot in TATA Sumo, in which defendant No.1 had kept his brief case containing documents such as original agreement dated 20.07.2000 and cash of Rs.40,000/-. One Srinivasagowda who was ill- disposed towards defendant No.1 tried to create a scene at the time of execution of delivery warrant and sent some -8- NC: 2024:KHC:29280 RSA No. 1209 of 2022 messages to the driver Ramesha and made him to go to the spot by leaving the car.
7. It is further contended that said Srinivasagowda taking advantage of the absence of the driver took away the car and brought the car back at midnight to the house of the 1st defendant at Hesaragatta and on verification, it was found that the brief case and cash was missing along with some documents including the original agreement were lost by the 1st defendant. In this regard, defendant No.2 lodged a complaint. Defendant No.1 incurred expenditure of Rs.1,50,000/- for execution of the delivery warrant and this was recoverable by defendant No.1 out of the sale proceedings of the property as agreed at the time of execution of GPA by late Muniyappa in favour of defendant No.1. It is contended that defendant No.1 on 15.05.2009 entered into an agreement of sell with defendant No.2 in respect of the suit schedule property as late Muniyappa failed to reimburse the cost to 1st defendant which was incurred by him in the execution of the delivery warrant and to repay the advance received by -9- NC: 2024:KHC:29280 RSA No. 1209 of 2022 him under sale agreement dated 20.07.2000. The consideration for sale under the agreement dated 15.05.2009 was Rs.1,00,000/-. On 15.03.2010, the defendant executed the sale deed in favour of defendant No.2 and appropriated the sale consideration towards the refund of advance as well as the expenses incurred in the execution case. The late Muniyappa was still due to pay to the 1st defendant towards balance of expenses incurred in executing the delivery warrant. Accordingly, defendant No.1 got issued the letter dated 30.04.2010 through registered post to late Muniyappa demanding Rs.55,000/- along with interest at 18% per annum. Late Muniyappa received the said letter but he neither paid balance with interest nor repudiated the transaction of sale nor brought to the notice of the 1st defendant about the so called cancellation of the GPA till his death on 28.12.2011. As such, late Muniyappa had tacitly approved the transaction entered into by the 1st defendant in favour of defendant No.2. It is also contended that the plaintiffs ought to have
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NC: 2024:KHC:29280 RSA No. 1209 of 2022 filed the suit within 3 years from the date of the sale deed. Hence, the suit is barred by time.
8. The Trial Court taking into note of the pleadings of the parties framed the Issues and allowed the parties to lead their evidence. The Trial Court having considered both oral and documentary evidence placed on record not accepted the case of the plaintiffs and accepted the case of the defendants regarding execution of irrevocable GPA and dismissed the suit. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred by the plaintiffs in R.A.No.19/2020. The First Appellate Court also having considered the grounds urged in the appeal memo framed the points and also having reassessed both oral and documentary evidence placed on record comes to the conclusion that defendant No.2 is the bonafide purchaser of the suit schedule property for valuable consideration and also comes to the conclusion that judgment and decree passed by the Trial Court is justified and also comes to the conclusion that defendant No.1 proved that late Muniyappa executed the irrevocable GPA
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NC: 2024:KHC:29280 RSA No. 1209 of 2022 with regard to the right to sell the suit schedule property and hence, dismissed the appeal filed by the appellants. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court by the plaintiffs.
9. The main contention of the learned counsel appearing for the appellants that GPA was cancelled and sale deed was executed subsequent to the cancellation of GPA and both the Courts failed to take note of the material available on record while answering the issues and also the points for consideration. The counsel also would vehemently contend that even the First Appellate Court also committed an error in rejecting the application filed under Order 41 Rule 27 of CPC and the sale deed was executed in the year 2010 and approached the Court in the year 2013 which is well within the limitation under Article 59 of the Limitation Act. Inspite of it, the First Appellate Court committed an error in confirming the judgment of the Trial Court. Hence, it requires interference of this Court.
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NC: 2024:KHC:29280 RSA No. 1209 of 2022
10. Having heard the learned counsel appearing for the appellant and also on perusal of the material available on record, it discloses that the Trial Court while answering the issues taken note of the very execution of irrevocable GPA. There is no dispute with regard to the execution of GPA in favour of defendant No.1 by the said Muniyappa and no doubt that the Trial Court while answering Issue No.1 comes to the conclusion that half of the suit schedule property was purchased by Muniyappa and remaining half of the suit schedule property was got by him in a partition and even answered the Issue No.2 as negative since the pleading made by the plaintiffs in paragraphs 5 and 6 of the plaint has not been proved and also answered Issue No.3 as negative in coming to the conclusion that before cancellation of the GPA, no notice was served and comes to the conclusion that GPA issued is also a irrevocable GPA. The Trial Court held that specific contention was also taken by the defendant in the written statement that the same is irrevocable GPA and also specifically pleaded with regard to the earlier decree and taking of possession by
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NC: 2024:KHC:29280 RSA No. 1209 of 2022 filing the execution petition. In paragraph 27, the Trial Court comes to the conclusion that, Ex.P3 recitals is clear that GPA is irrevocable GPA, actually the said document is an irrevocable power of attorney. No doubt, the legal notice was issued to defendant No.1 on 31.01.2010 but the same was not served and the same has been discussed in paragraph 35 of the judgment of the Trial Court. When the document was executed and the same was registered by giving a power to sell the property, the very contention that GPA is given for other purpose not for the purpose of selling of the property not accepted by the Trial Court.
11. Even the First Appellate Court also having reassessed the material available on record taken note of Section 202 of the Contract Act and while answering points No.2 and 3, elaborate discussion was made and also taken note of the fact that Ex.P3 was executed with a right to sell the suit schedule property and the same has not been cancelled or terminated in view of the provision of Section 202 of the Contract Act. The First Appellate Court not only
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NC: 2024:KHC:29280 RSA No. 1209 of 2022 considered the question of fact but also considered the question of law while dismissing the appeal and elaborate discussion was made and also taken note of the fact that sale deed was executed by defendant No.1 in favour of defendant No.2 based on the GPA and the said GPA is irrevocable GPA. Hence, there is a concurrent finding by both the Courts with regard to the factual aspects as well as question of law. When such being the case, I do not find any grounds to admit the second appeal and to frame the substantial questions of law invoking Section 100 of CPC.
12. In view of the discussions made, I pass the following:
ORDER The regular second appeal is dismissed. In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands disposed of.
Sd/-
(H.P.SANDESH) JUDGE SN