Matilda D Lima Late G.L.D Lima vs Khaja Bee W/O Late S Abdul Rasheed
2022 Latest Caselaw 1647 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

            DATED THIS THE 3RD DAY OF FEBRUARY 2022

                            BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                     RSA.NO.5858/2012 (PI)
BETWEEN

1.     MATILDA D LIMA LATE G.L.D LIMA,
       AGE: 73 YEARS,

2.     SUNITHA JOYCE D'LIMA W/O LATE KIRAN D'LIMA,
       AGE: 39 YEARS, OCC: HOUSE WIFE,
       R/O: VAILANKINI VILLA, CHURCH ROAD,
       KONDAPURAM, DIST: UDUPI.

3.     SHERWIN KELTH D'LIMA
       S/O LATE KIRAN D'LIMA,
       AGE: 16 YEARS, MINOR,

4.     SAMUEL ALOSIUS D'LIMA S/O LATE KIRAN D'LIMA,
       AGE: 4 YEARS, MINOR,

       APPELLANTS 3 AND 4 ARE MINOR
       REPTD., BY MOTHER AND NATURAL GUARDIAN SUNITHA
       JAYCE D'LIMA W/O LATE KIRAN D'LIMA ,
       AGE: 39 YEARS, OCC: HOUSE WIFE,R/O: VAILANKINI VILLA,
       CHURCH ROAD,KONDAPURAM, DIST: UDUPI.


                                                ... APPELLANTS

(BY SRI.ANANDKUMAR A.MAGADUM, SMT.ARCHANA MAGADUM AND
SRI. A.P.MURARI, ADVS.)

AND

1.    KHAJA BEE W/O LATE S ABDUL RASHEED,
      AGE: 93 YEARS,
                                2




2.   S IQUBAL HUSSAN
     S/O LATE S ABDUL RASHEED,
     AGE: 68 YEARS,

3.   S ABDUL HYE
     S/O LATE S ABDUL RAZAK,
     AGE: 66 YEARS,

4.   SULTHAN SALLAUDDIN
     S/O LATE ABDUL RAZAK,
     AGE: 66 YEARS,

     ALL ARE R/O: DOOR NO. 211,
     7TH WARD,
     PARTHAKANDAKANI STREET,
     BRUCEPET,BELLARY.

                                                ... RESPONDENTS

(BY SRI.K.RAGHAVENDRA RAO & SMT.V.VIDYA, ADVS. FOR R1 & R2,
 R3 SERVED; R4 APPAL DISMISSED)


      THIS APPEAL IS FILED UNDER 100 OF C.P.C., AGAINST THE
JUDGEMENT & DECREE DTD:17.03.2012 PASSED IN R.A.N0.142/2009
ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT -III
AT   HOSPET,   DISMISSING    THE   APPEAL   FILED   AGAINST   THE
JUDGMENT DTD:06.08.2009 AND THE DECREE PASSED IN O.S.
NO.30/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DVN), AT
KUDLIGI,   DISMISSING   THE    SUIT    FILED   FOR    PERMANENT
INJUNCTION.


      THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                     3




                             JUDGMENT

This captioned regular second appeal is filed by

unsuccessful plaintiffs being aggrieved by the concurrent

judgment and decree of the courts below wherein both the

courts below have dismissed the suit filed by the

appellants/plaintiffs.

2. Brief facts of the case are that:

Appellants/plaintiffs filed a bare suit for injunction in

O.S.No.30/2007. The appellants/plaintiffs contended that

suit schedule properties were originally owned by one

Soudagar Abdul Razaak Saheb. The appellants/plaintiffs

further contended that said Soudagar Abdul Razaak died

leaving behind his children who are co-owners of the suit

schedule property. The appellants/plaintiffs further

contended that said Soudagar Abdul Razaak died on

22.09.1990. The appellants/plaintiffs contended that due to

difference in the family, a suit came be filed in

O.S.No.17/1976 pertaining to the suit schedule property

and also other properties. The appellants/plaintiffs claim

that present suit property was allotted to Abdul Rasheed's

share pursuant to a compromise recorded in the suit stated

supra. In terms of compromise, Abdul Rasheed was

appointed as receiver of the suit schedule properties. The

appellants/plaintiffs have further contended that said Abdul

Rasheed with the concurrence of his brothers obtained a

mining lease on 04.04.1986 and later he entered into an

agreement on 15.09.1986 with defendant No.5 thereby

authorizing defendant No.5 to carryout mining operations

on behalf of family of Abdul Rasheed. The

appellants/plaintiffs have further contended that Power of

Attorney dated 14.9.1986 in favour of defendant No.5 was

coupled with interest. The appellants/plaintiffs contended

that due to unavoidable circumstances, defendant No.5

was not in a position to personally carryout acts, he was

not in a position to invest money for mining purpose.

Therefore, the appellants/plaintiffs claim that they thought

of appointing suitable agent and accordingly, appointed

husband of plaintiff No.1 and father of plaintiff No.2 as his

agent and executed Power of Attorney on 17.10.1986.

Therefore, the appellants/plaintiffs contended that it is in

terms of authorization given by deceased defendant No.5

during his lifetime, the suit schedule property was

delivered to the present plaintiff.

3. The grievance of the appellants/plaintiffs is that

in spite of specific demand and requests, the original

licencee i.e., Abdul Rasheed failed to secure permission

from the forest department to carryout mining operations

and in between Abdul Rasheed died leaving behind

defendant Nos.1 and 2 as his legal heirs. It is also

contended that husband of plaintiff No.1 also died on

26.12.2004. Therefore, the present appellants/plaintiffs

were stepped into the shoes of G.L.D'Lima and requested

the defendants to perform their part of agreement. The

appellants/plaintiffs further contended that they are ever

ready and willing to perform their part of obligation under

the agreement executed by late Abdul Rasheed. The

present suit is filed on an apprehension that defendants are

negotiating with private parties by suppressing the

agreement dated 15.09.1986 executed in favour of

defendant No.5.

4. On receipt of summons, respondent Nos.1 and 2

appeared and contested the proceedings and stoutly denied

the entire averments made in the plaint. Respondent Nos.1

and 2 specifically disputed the alleged authorization given

by defendant No.5 in favour of husband of plaintiff No.1 as

per Ex.P6. Respondent Nos.1 and 2/defendant Nos.1 and 2

further specifically contended that Power of Attorney if any

executed by defendant No.5 in favour of husband of

plaintiff No.1 would stand terminated on account of death

of defendant No.5 and also on account of death of husband

of plaintiff No.1 in whose favour the authorization was

given by defendant No.5 under Ex.P6. The trial court

having assessed oral and documentary evidence has

answered issue Nos.1 and 2 in the negative by recording a

categorical finding that appellants/plaintiffs have failed to

prove their lawful possession over the suit schedule

property. Infact having examined ocular evidence of P.W.1,

the trial court found that plaintiffs are totally ignorant

about the transaction between the original mining lessee

namely, Abdul Rasheed in whose favour the mining lease

was issued. The trial court was also of the view that Abdul

Rasheed was not the absolute owner of the property.

Further, the trial court has taken judicial note of admission

given by P.W.1 wherein he has admitted in unequivocal

terms that his father was not conducting mining operations

in the suit schedule property as he was not allowed to

carryout mining operations. Therefore, in this background,

the trial court was of the view that the ingredients to seek

injunction is to establish lawful possession as on the date

of the suit and burden is also on the plaintiff to prove

alleged interference. Both these elements were found

missing by the trial court. Therefore, the trial court

proceeded to dismiss the suit.

5. The present appellant preferred an appeal

before the first appellate court. The first appellate court

having independently assessed oral and documentary

evidence on record found that both Abdul Rasheed who had

authorized defendant No.5 under Ex.P3 and also husband

of plaintiff No.1 who was authorized by defendant No.5

under Ex.P6 are no more. The first appellate court having

meticulously examined the material on record also found

that the plaintiff who is examined as P.W.1 was not at all

aware of the earlier transactions and therefore, the first

appellate court has also come to the conclusion that

plaintiffs are not in lawful possession of the suit schedule

property. On these set of reasoning, the first appellate

court has proceeded to dismiss the appeal.

6. It is against these concurrent judgments and

decree of the courts below, the present appeal is filed.

7. Learned counsel for the appellants would

vehemently argue and contend before this court that

General Power of Attorney executed by Abdul Rasheed in

favour of defendant No.5 on 15.09.1986 was coupled with

interest and therefore, death of principal would not in itself

terminate the GPA, as it was coupled with interest and

would clearly fall within the domain of Section 202 of the

Indian Contract Act. She would further argue and contend

before this court that though there is further delegation by

defendant No.5 by executing GPA in favour of husband of

plaintiff No.1 as per Ex.P6, the said authorization would not

be invalid, as it was ratified by Abdul Rasheed during his

lifetime. On these two grounds, she would submit to this

court that both the courts below have not examined

clinching evidence, which is placed on record by the

plaintiffs. Therefore, she requests this court that

substantial question of law would arise in the present case

on hand and warrant interference at the hands of this

court.

8. However, learned counsel for the respondents

repelling the contentions canvassed by the counsel

appearing for the appellants would submit to this court that

original principal who authorized defendant No.5 under

Ex.P3 has died on 22.09.1990. She would further

vehemently argue and contend before this court that

rebuttal clinching evidence let in by the

respondents/defendants would clearly indicate that

husband of plaintiff No.1 was never put in possession over

the property in question. She would brought to the notice

of this court that authorization given by Abdul Rasheed in

favour of defendant No.5 would automatically stands

terminated on account of death of Abdul Raheed. Further,

the authorization given by defendant No.5 in favour of

husband of plaintiff No.1 would also stands terminated. In

this background, she would submit to this court that

appellants/plaintiffs have no legal right to lay claim over

the suit schedule property. She would further submit to

this court that both the courts have held that

appellants/plaintiffs are not in lawful possession and

therefore, the said finding cannot be interfered with under

Section 100 of CPC.

9. Heard the learned counsel for the appellants,

learned counsel for the respondents and pursed the

judgments under challenge.

10. Original principal who authorized defendant

No.5 under Ex.P3 died on 22.09.1990. Defendant No.5

based on Ex.P3 has further executed GPA in favour of

husband of plaintiff No.1 who is also reported to be dead

and he died on 26.12.2004. Though learned counsel for the

appellants has vehemently argued and contended that

Ex.P3 is coupled with interest however, on perusal of the

same, this court would find that under Ex.P3 Abdul

Rasheed has authorized defendant No.5 to carryout mining

operations. The terms of agreement clearly indicate that

defendant No.5 was required to carryout mining and secure

contract for sale of iron and manganese ore for maximum

quantity in his own account. Under Clause 4 of the

agreement, defendant No.5 was also required to supply

iron ore and manganese after mining and transport at his

own cost and thereafter pay the mine owner, consideration

at Rs.5/- per tonne. Defendant No.5 was also required to

pay the government royalty after carrying out mining.

Defendant No.5 was also authorized to collect and receive

payment for having supplied the mined ore under the

contract. He was also authorized to receive entire payment.

If these terms and conditions are meticulously examined,

this court would find that GPA was not coupled with

interest. There is no substantial investment which would

bring the contract under Section 202 of Contract Act.

Under Ex.P3, defendant No.5 was required to carryout

mining, supply the same, collect payment and then share

the revenue with the mining licencee i.e., Abdul Rasheed.

Therefore, strictly speaking, the terms and conditions

under Ex.P3 do not indicate that it was coupled with

interest. Defendant No.5 would incur expenses only after

carrying mining. In the present case on hand, defendant

No.5 never commenced with the mining in terms of Ex.P3.

On the contrary, defendant No.5 has further executed GPA

in favour of husband of plaintiff No.1. All these significant

details would give an indication that authorization were not

coupled with interest and therefore, neither defendant No.5

nor husband of plaintiff No.1 could have asserted any right

pursuant to death of Abdul Rasheed who died on

22.09.1990. It is in this background, the contention raised

by the appellants/plaintiffs cannot be acceded to and the

same is not at all tenable.

11. Even otherwise, under Ex.P3, Abdul Rasheed

executed GPA in favour of defendant No.5, which is dated

15.09.1986. The period fixed under the agreement was 20

years. Therefore, by efflux of time Ex.P3 automatically

stands terminated in the year 2006. The material on record

would also indicate that original lessee has failed to secure

permission from the forest department. Material on record

also indicate that defendant No.1 has made efforts to

obtain permission from the concerned department including

forest department and these attempts were made

somewhere in 2006. The evidence of P.W.1 would also give

an impression that plaintiffs are not at all in lawful

possession. No documents are produced to demonstrate

that pursuant to Ex.P6, they have commenced with mining

and they were in physical possession of the suit schedule

property. Both the courts below have exhaustively dealt

with the rival contentions of the parties and have

concurrently held that appellants/plaintiffs are not in lawful

possession of the suit schedule properties.

12. In a bare suit for injunction the courts are only

required to examine as to whether plaintiff is in lawful

possession and whether there is an alleged interference by

the other side. If these two ingredients are not satisfied, it

is well within the jurisdiction of the courts to decline the

grant discretionary relief of perpetual injunction. Both the

courts below have dealt with this issue and have come to

the conclusion that appellants/plaintiffs are not in lawful

possession. Therefore, this disputed question of fact cannot

be re-examined under Section 100 of CPC.

The appeal is devoid of any merits is accordingly,

dismissed.

SD/-

JUDGE MBS/-