Karnataka High Court
Ms Komal K Dharamshi vs Ms P B Divija on 30 October, 2025
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NC: 2025:KHC:43572
RFA No. 249 of 2014
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR FIRST APPEAL NO.249 OF 2014 (DEC)
BETWEEN:
1. KOMAL K. DHARAMSHI
ALIAS MS. KOMAL K SHAH
D/O MR. KUSHALCHAND D. SHAH
AGED ABOUT 28 YEARS
R/AT NO.898, 10TH CROSS
22ND MAIN, J.P. NAGAR II PHASE
BENGALURU - 560078.
2. MR. RAHUL DHARAMSHI
S/O MR. KUSHALCHAND D. SHAH
AGED ABOUT 39 YEARS
R/AT NO.35/1, DELUXE HOUSE
MAVALLI TANK BUND ROAD
Digitally signed by
ARUNKUMAR M S BENGALURU -560 002.
Location: HIGH
COURT OF ... APPELLANTS
KARNATAKA
(BY SRI. KARAN JOSEPH, ADVOCATE)
AND:
1. MS. P.B. DIVIJA
D/O MR. P.S. BOJAPPA
AGED ABOUT 40 YEARS
R/AT KAVERI NILAYA
HOUSE NO.16, 4TH CROSS
4TH MAIN, NAVODAY NAGARA
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NC: 2025:KHC:43572
RFA No. 249 of 2014
HC-KAR
BENGALURU -560078.
2. MR. VIJAYA KUMAR
AGED ABOUT 47 YEARS
REPRESENTATIVE CITY FINANCE
PEENYA DASARHALLI
BENGALURU - 560058.
3. MR. KUSHALCHAND D. SHAH
S/O DHARMSHI
AGED ABOUT 61 YEARS
DELUXE ROAD LINES
NO.35/1, DELUXE HOUSE
MAVALLI TANK BUND ROAD
BENGALURU - 560002.
... RESPONDENTS
(BY SRI. MOHAMMED SADIQH B.A., ADVOCATE FOR R1;
NOTICE TO R2 IS HELD SUFFICIENT V/O DATED 15.03.2021;
R3 SERVED AND UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER XLI OF CPC AGAINST THE JUDGMENT &
DECREE DATED 12.11.2013 PASSED IN ORIGINAL SUIT
NO.16934 OF 2006 ON THE FILE OF THE XXVIII ADDITIONAL
CITY CIVIL JUDGE, BENGALURU DECREEING THE SUIT FILED
FOR DECLARATION.
THIS REGULAR FIRST APPEAL HAVING BEEN RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
E.S. INDIRESH J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
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NC: 2025:KHC:43572
RFA No. 249 of 2014
HC-KAR
CAV JUDGMENT
1. This appeal is preferred by the defendant Nos.1 and 4 assailing the Judgment and Decree dated 12.11.2013 in O.S.No.16934/2006 on the file of 28th Addl. City Civil Judge at Mayo Hall Unit, Bengaluru, decreeing the suit of the plaintiff holding that the General Power of Attorney dated 29.03.2005 is null and void.
2. For the sake of convenience, the parties are referred as per their rank before the Trial Court.
3. The plaint averments are that, the plaintiff had purchased the suit schedule property as per the registered Sale Deed dated 09.04.2004 from one Sri. K. Bhaskaran and Smt. Rashmi, and since thereafter, the revenue record stands in the name of the plaintiff. The plaintiff is in possession of the suit schedule property. It is also stated that the plaintiff was working as a Receptionist in the transport company, namely Deluxe Roadlines belonging to defendant No.1. It is further stated in the plaint that defendant No.1 was harassing the plaintiff sexually and was trying to molest the plaintiff on several occasions when she was
- 4- NC: 2025:KHC:43572 RFA No. 249 of 2014 HC-KAR working with the defendant No.1. It is also stated that the plaintiff had protested the illegal acts of defendant No.1. It is also stated that the plaintiff had come to the conclusion to resign from the job and as such expressed the same to defendant No.1 and the defendant No.1 pressurized the plaintiff to put her signature on blank papers for which the plaintiff refused and thereafter, the defendant No.1 flashed a loaded pistol on the face of the plaintiff and abused the plaintiff in filthy language and also threatened the plaintiff to kill her if she refused to put her signature on the blank sheets. At that juncture, the plaintiff, in order to escape from defendant No.1, put her signature on certain blank sheets. It is also stated that the plaintiff has not revealed the same to her parents fearing that defendant No.1 may kill her and her family members. It is also stated in the plaint that defendant No.2 is a representative of the financial company and used to visit the office of defendant No.1. The defendant No.2, at the instance of defendant No.1, insisted the plaintiff to deliver the original property title documents for scrutiny and the plaintiff has handed over the original property papers to defendant No.2. Thereafter, the plaintiff requested the defendant No.2 to return the documents for which the defendant
- 5- NC: 2025:KHC:43572 RFA No. 249 of 2014 HC-KAR No.2 threatened the plaintiff to face dire consequences. It is also stated that on 16.03.2006, the defendant No.2 along with some goonda elements visited the house of the plaintiff and ransacked the window grills and name board affixed in the front portion of the house. The defendant No.2 assaulted the father of the plaintiff and directed the parents of the plaintiff to vacate the suit property. Pursuant to the same, father of the plaintiff has lodged a complaint before the Subramanyapura Police and as such, the plaintiff has filed the suit in O.S. No.2542/2006 seeking relief of permanent injunction.
4. It is further averred in the plaint that, after defendants entered appearance and filed written statement in the earlier suit, the plaintiff came to know that defendant No.4 is the owner of the suit schedule property as per the registered Sale Deed dated 30.03.2005. The plaintiff was shocked to see that the suit schedule property was sold in favour of defendant No.4 by defendant No.1 based on an unregistered General Power of Attorney dated 29.03.2005 said to have been executed by the plaintiff in favour of defendant No.1. It is the contention of the plaintiff that the alleged Power of Attorney dated 29.03.2005 is
- 6- NC: 2025:KHC:43572 RFA No. 249 of 2014 HC-KAR false and fabricated and sale deed dated 30.03.2005 executed by defendant No.1 as the Power of Attorney holder of the plaintiff in favour of the sister of defendant No.1 aged abut 19 years as on the date of execution of the registered Sale Deed is illegal and based on concocted documents. It is the contention of the plaintiff that the registered Sale Deed is non est in law and the General Power of Attorney dated 29.03.2005 is fictitious document and therefore the plaintiff has filed suit in O.S.No.16934/2006, seeking declaration that the registered Sale Deed dated 30.03.2005 based on the General Power of Attorney dated 29.03.2005 is null and void.
5. After service of summons, defendants entered appearance. Defendant Nos.1, 3 and 4 have filed written statement denying the averments made in the plaint. It is the case of the defendant No.4 that she is the absolute owner in possession of the suit schedule property having acquired the same as per the registered Sale Deed dated 30.03.2005 executed by the plaintiff through her General Power of Attorney holder - defendant No.1. It is further contended by defendant that after purchase of the suit property from the plaintiff, plaintiff requested the defendant
- 7- NC: 2025:KHC:43572 RFA No. 249 of 2014 HC-KAR No.4 for some considerable period to stay in the suit schedule property and further it is stated in the written statement that the plaintiff has not adhered to her promise to vacate the suit schedule property. Hence, it is the contention of the defendants that plaintiff is not the owner in possession of the suit schedule property. The defendants also denied the allegation of sexual harassment and molestation against the plaintiff as stated in the plaint and as such, sought for dismissal of the suit. It is also stated in the written statement that defendant No.4 agreed to purchase the suit property for a valuable consideration and same was finalised on 29.03.2005 and on the next day, the registered Sale Deed came to be executed, hence the defendants sought for dismissal of the suit.
6. On the basis of the pleadings on record, the Trial Court framed the following issues for its consideration:
" 1) Whether the plaintiff proves that the GPA dated 29.3.2005 is fictitious, concocted, fabricated and forged the same is null and void?
2) Whether the plaintiff proves that the sale deed dated 30.3.2005 executed by defendant No.1 as a
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NC: 2025:KHC:43572 RFA No. 249 of 2014 HC-KAR GPA holder of plaintiff in favour of defendant no.4 is nonest in law?
3) Whether the suit is valued properly and court fee paid is sufficient?
4) What order or decree?"
7. In order to establish their case, plaintiff has examined herself as P.W.1 and two more witnesses as P.W.2 and P.W.3, and got marked 17 documents as Exs.P1 to P17. The defendant No.1 was examined as D.W.1 and 13 documents were got marked as Exs.D1 to D13 on behalf of the defendants. The Trial Court, after considering the material on record, by its Judgment and Decree dated 12.11.2013, decreed the suit holding the General Power of Attorney dated 29.03.2005 is null and void and consequently held that the registered Sale Deed dated 30.03.2005 executed in favour of defendant No.4 as void. Feeling aggrieved by the same, the defendant Nos.1 and 4 have presented this appeal.
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8. I have heard Sri. Karan Joseph, learned counsel for the appellants/defendants No.1 and 4, Sri. Mohammed Sadiqh B.A., learned counsel for respondent No.1/plaintiff.
9. It is the submission of the learned counsel for the appellants that the Trial Court has not properly appreciated the oral and documentary evidence adduced by the parties. It is argued by the learned counsel for the appellants that the Trial Court has ignored the scope of Section 85 of the Evidence Act, 1872, which stipulates that the Court has to presume the authenticity of a Power of Attorney that was duly executed. It is also argued by the learned counsel for the appellants that the Trial Court has committed an error in placing the burden of proving the genuineness of General Power of Attorney on the defendants, and on the other hand, it is the duty of the plaintiff to prove the non execution of the General Power of Attorney executed in favour of defendant No.1. It is further argued by the learned counsel for the appellants that the scope and ambit of Section 85 of the Evidence Act, was not considered and therefore, the reasoning drawn by the Trial Court requires to be set aside. It is further argued that the presumption under
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NC: 2025:KHC:43572 RFA No. 249 of 2014 HC-KAR Section 85 of the Evidence Act, 1872, being rebuttable, therefore the burden is on the plaintiff to establish her rebuttal evidence and accordingly, sought for interference of the Court. It is further argued that, the Court fees paid by the plaintiff is insufficient and the said aspect of the matter was not properly appreciated by the Trial Court and as such, sought for interference of the Court.
10. Per contra, learned counsel for the respondent No.1 sought to justify the impugned Judgment and Decree passed by the Trial Court. Learned counsel invited the attention of the Court to Sections 24 and 48 of the Karnataka Court-fees and Suits Valuation Act, 1958, and argued that, the Court fees paid by the plaintiff is just and proper and same has been considered by the Trial Court while answering issue No.3 and therefore, sought for dismissal of the appeal.
11. In so far as the contention raised by the learned counsel for the appellants with regard to execution of the General Power of Attorney dated 29.03.2005 is concerned, learned counsel for respondent No.1, invited the attention of the Court to the cross- examination of D.W.1 and refers to the deposition of D.W.1 on
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NC: 2025:KHC:43572 RFA No. 249 of 2014 HC-KAR 07.06.2013 in detail, and submitted that the finding recorded by the Trial Court requires to be confirmed.
12. In the light of the submissions made by the learned counsel appearing for the parties and on perusal of the original records, the following points have to be answered in this appeal:
" (i) Whether the execution of the General Power of Attorney dated 29.03.2005 was executed under suspicious circumstances to facilitate the defendant No.1 to sell the suit property in favour of his sister - defendant No.4?
(ii) Whether the Judgment and Decree passed by the Trial Court requires interference in this appeal? "
13. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by the Trial Court and perused the original records. It is the contention of plaintiff that, plaintiff was working as a Receptionist in Deluxe Roadlines belonging to defendant No.1. The plaintiff has narrated in the plaint with
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NC: 2025:KHC:43572 RFA No. 249 of 2014 HC-KAR regard to harassment meted out to her while working as a Receptionist in the office of defendant No.1. It is also to be noted that the plaintiff disputes the execution of General Power of Attorney dated 29.03.2005 in favour of defendant No.1. In this regard, the case of the defendant No.1 is, that the plaintiff was in need of money for the construction of the house in her native place and in order to put up construction, the plaintiff required financial assistance and as such requested the defendant No.1 to sell the suit schedule property. In this regard, it is pertinent to mention here that it is the argument of defendants that, the execution of the General Power of Attorney (Ex.D4) as per the version of defendant No.1 was made by the plaintiff on 29.03.2005, and based on the said General Power of Attorney, the registered Sale Deed (Ex.D5) was executed by defendant No.1 in favour of his sister - defendant No.4, on 30.03.2005.
14. The perusal of the General Power of Attorney dated 29.03.2005 is undoubtedly an unregistered General Power of Attorney, wherein the executant authorised the Power of Attorney holder to sell the suit schedule property. It is also to be noted that, the recitals in the registered Sale Deed dated
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NC: 2025:KHC:43572 RFA No. 249 of 2014 HC-KAR 30.03.2005 (Ex.D5), refers to the sale agreement between the parties to sell the suit schedule property, and the consideration amount has been made through cash by the parties. The plaintiff denied the acceptance of the sale consideration amount. It is also forthcoming from the registered Sale Deed dated 30.03.2005 wherein the age of the purchaser (defendant No.4) was 19 years. Nothing is produced by the defendants as to how defendant No.4 procured the sale consideration of Rs.5,25,000/-. Though it is argued by the learned counsel for the appellants that, father of defendant No.4 has paid the consideration amount, however, the father of defendant No.4 was not examined before the Trial Court and therefore I find that the Trial Court has in threadbear analysed the entire oral and documentary evidence adduced by the parties and rightly arrived at the conclusion to set aside the General Power of Attorney dated 29.03.2005 and the Sale Deed dated 30.03.2005. It is also to be noted that the sale agreement as reflected in the Sale Deed Ex.D5 is not forthcoming from the records and same was denied by the plaintiff in her evidence.
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NC: 2025:KHC:43572 RFA No. 249 of 2014 HC-KAR
15. I have carefully examined the signature of the plaintiff on the plaint, vakalatnama filed before the Trial Court as well as signature of the plaintiff on the General Power of Attorney.
16. In order to ascertain whether the signature of the plaintiff on the plaint and on the GPA (Ex.D4) is similar i.e., admitted signature of the plaintiff on the plaint with the disputed signature of the plaintiff on Ex.D4, as a rule of prudence, it could be easily arrived at the conclusion by examination through naked eye that signature of the plaintiff on the plaint is totally different from the signature on the General Power of Attorney (Ex.D4). In order to ascertain the veracity of averment made in the plaint as to whether the plaintiff was forced to sign documents and on blank white sheets, it is relevant to refer to the cross-examination of D.W.1, wherein, the D.W.1 admits that he had the licence to own a pistol. Relevant portion of the cross examination of D.W.1 dated 07.06.2013 is extracted below:
"ನನ ಹ ರ ಪರ ಾನ ೊಂ ರುವ ಸೂ ಇ ೆ. ಾನು ಅದನು
ಉಪ ೕ ಸುವ ಲ ಮತು ನನ "ೊ#ೆ$ೆ %ೊಂ&ೊಯು(ವ ಲ. ಾನು
ಾ $ೆ ಸದ) ಸೂ #ೋ)* ಆ$ಾಗ -ೆದ)ಸು ೆ. ಮತು ೈ0ಕ
ಸಂಪಕ2 ೊಂದಲು ಾನು ಅವಳನು ಒ#ಾ5ಸು ೆ. ಎಂದ7ೆ ಸುಳ89-
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NC: 2025:KHC:43572
RFA No. 249 of 2014
HC-KAR
:ೕ 2 ೇ* ಮತು ;7ೇಂದ< ೇ* ಇವ)$ೆ =ೕ > ವ?2 "ಾ* ಇದು.ದ) . ಂದ ಅವರು ಆ=ೕ@ನA ೆಚುC ಇರು ರAಲ ಎಂದ7ೆ ಸುಳ89. ಅವರು -ೆD$ೆE ಆ=ೕ@$ೆ ಬಂದು =ೕ > ವ?2$ೆ ೋಗು ದ.ರು, -ೆD$ೆE 5ಂದ ಸಂ"ೆಯವ7ೆ$ೆ ಾನು ಒಬG ೇ HೇಂಬIನA ಇರು ೆ. ಎಂದ7ೆ ಸುಳ89. ಾ ಯು ಒJK ಆತKಹ#ೆ($ೆ ಪ<ಯ *ದ.ಳ8 ಎಂದ7ೆ ನನ$ೆ $ೊ ಲ. ನನ :ರುಕುಳ #ಾಳLಾರ ೇ ಅವಳ8 ಆತKಹ#ೆ($ೆ ಪ<ಯ *ದ.ಳ8. ಆ %ಾಲ%ೆM ಾ ೇ ಅವD$ೆ N:#ೆO %ೊP*ದು. ಅಲ ೇ ಅವD$ೆ =Qಾ2 %ೊಡದಂ#ೆ ತ&ೆ ೆ.ೕ ೆಂದ7ೆ ಸ)ಯಲ. ಅವಳ8 %ೆಲಸ%ೆM 7ಾSೕ ಾJ %ೊಡಲು ಬಂ ಾಗ ಾನು ಅದನು T7ಾಕ)* ಸೂ #ೋ)* -ೆದ)* ಅವಳ ಕ&ೆ5ಂದ UಾA ಾಖLೆಗಳ JೕLೆ ಸ0 ಪ&ೆದು%ೊಂP ೆ.ೕ ೆಂದ7ೆ ಸುಳ89. ಾ $ೆ ಾನು "ನನ JೕLೆ =Qಾ2 %ೊಡದಂ#ೆ ನನ Wೇ=X$ಾ UಾA %ಾಗದಗಳ JೕLೆ ಸ0 ಪ&ೆದು%ೊಳ89 ೆ.ೕ ೆಂದು" ೇD ೆ. ಎಂದ7ೆ ಸುಳ89.
ಾನು ಾ ಸ0 YಾPದ UಾA %ಾಗದಗಳನು
ದುರುಪ ೕಗಪP*%ೊಂಡು S. .ಎ. ಸೃ[X*%ೊಂP ೆ. ಎಂದ7ೆ ಸುಳ89.
S. .ಎ. Qಾರ ಮುಂ ೆ ೋಟ7ೈ@ ಆ ೆ ಎಂದು ಈಗ ನನ$ೆ
ೆನ^ಾಗು ಲ. ೋಟ7ೈ@ Yಾಡಲು ಾ . ನನ ಸ0ೕದ) ಮತು
ಾ ಯ ಪರ ಾ ಒಬG 0)ಯ ವ(: ಸ ಾ ಬಂ ದ.ರು. T_ಾ ೆ P-4
`. .ಎ. ವನು ಾ YಾP ೆ.ೕ ಇಲ] ಮತು Qಾವ ೇ ೋಟ) ಮುಂ ೆ
ಅದನು ೋಟ7ೈ@ YಾPಲ ಎಂದ7ೆ ಸುಳ89. T_ಾ ೆ P-4 ರA ಬು?
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NC: 2025:KHC:43572 RFA No. 249 of 2014 HC-KAR ಎಂa< YಾP ಾ.7ೋ ಇಲbೕ ನನ$ೆ $ೊ ಲ. ೋಟ) ಮುಂ ೆ ಾವ ಆಧ)ಸುವಂ#ೆ T_ಾ ೆ P-4 S. .ಎ. ಬು? ಎಂa< ಆ ಲ ಮತು ಅಂತಹ S. .ಎ. ೋಟ7ೈ@ ಸ ಾ ಆ ಲ. ಎಂದ7ೆ ಸುಳ89. ಆ ನ ಾ ಯನು ೋಟ7ೈ@ Yಾಡುವ %ಾಲ%ೆM Qಾವ ೇ ವ:ೕಲರು ಗುರು *ಲ. T_ಾ ೆ P-4 ರAಯ ದು.ಪPಗಳನು ೋಟ) ಗುರು * ಅವ ಗD$ೆ NಕM ರುಜು ಾ: ಾ.7ೋ ಇಲbೕ ನನ$ೆ $ೊ ಲ. ೋಟ7ೈ@ Yಾಡುವ ಪದe ನನ$ೆ $ೊ ಲ. T_ಾ ೆ P-4 ಾವ ಸೃ[X*ದ ಾಖLೆ ಇದು. ಆ %ಾರಣ%ಾM ೋಟ)ಯA ದು.ಪP YಾPದ ಕ&ೆ NಕM ರುಜು ಾ:ಲ ಎಂದ7ೆ ಸ)ಯಲ. ಈಗ #ೋ)*ದ ಅ=ಡ;gನು ಾವ %ೆ.ಇ.`. ಮುಂ ೆ hೕಟIನA ೆಸರು ಬದLಾವiೆ Yಾಡುವ %ಾಲ%ೆM ಾಜರುಪP* ೆ.ೕ ೆಂದ7ೆ Tಜ. ಾಖLೆಯನು T_ಾ ೆ -18 ಎಂದು ಗುರು ಸLಾ5ತು."
(underlined by me)
17. In the backdrop of these aspects, nothing is forthcoming from the evidence of D.W.1 as to how the defendant No.4 was able to mobilise Rs.5,25,000/- and to pay the same to the plaintiff. In this regard, though the learned counsel for the appellants invited the attention of the Court to xerox copy of the receipt dated 29.03.2005 (Document No.1) filed under Order XLI
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NC: 2025:KHC:43572 RFA No. 249 of 2014 HC-KAR Rule 27 of CPC in I.A.2/2014, however, the said document is a xerox copy and not an original one and therefore the said document cannot be accepted as additional evidence in I.A.2/2014. Undisputedly, D.W.4 was not examined to prove the transfer of Rs.5,25,000/- by defendant No.4 to the plaintiff, when particularly entire sale consideration is paid in cash as averred by the defendants and further, based on the version of defendant No.1, father of defendant No.4 was also not examined by the defendants with regard to finding the source of Rs.5,25,000/-. No document has been produced by defendant No.4 as to payment Rs.5,25,000/- in her IT returns if any, filed during the financial year 2004-05 and therefore, I am of the opinion, that there is no merit in the submission made by the learned counsel for the appellants as to presumption provided under Section 85 of the Evidence Act. The Trial Court rightly arrived at the conclusion that the plaintiff proves that the General Power of Attorney dated 29.03.2005 is a fabricated and forged document.
18. Nextly, in so far as the argument advanced by the learned counsel for the appellants with regard to issue No.3 whether the
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NC: 2025:KHC:43572 RFA No. 249 of 2014 HC-KAR suit is not properly valued and court fee paid is insufficient, on careful consideration of Section 24(b) of the Karnataka Court- fees and Suits Valuation Act, 1958 and the relief sought for by the plaintiff is to declare that the General Power of Attorney dated 29.03.2005 and Sale Deed dated 30.03.2005 are null and void and as such, the plaintiff has properly paid the court fee in a sum of Rs.34,875/- and therefore, the finding recorded by the Trial Court is just and proper and I do not find any acceptable ground to interfere with the finding recorded by the Trial Court.
19. Hence, the points for consideration referred to above, favours the plaintiff and in the result the Regular First Appeal is dismissed as devoid of merits.
20. Consequently, for the reasons stated above, I.A.1/2014 does not survive for consideration. I.A.2/2014 is dismissed.
SD/-
(E.S.INDIRESH) JUDGE SAC list No.: 1 Sl No.: 37