Karnataka High Court
Smt.Meenakshi W/O Madhurakar @ vs Shri.Pandurang Bhimarao ... on 21 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA.NO.100553/2018 (DEC/INJ)
c/w RSA NOS.100552, 100557, 100558, 100559, 100592, 100593,
100594 and 100595 OF 2018
RSA No.100553/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
2
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. SHRI KAVAN S/O RAJAN DESHPANDE
AGE: 30 YEARS, OCC: STUDENT,
R/O 'VAIKUNTA PRASAD',
OPP.DISTRICT COURT, DHARWAD.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH & SRI.D.M.MALLI, ADVS. FOR R1 & R2)
3
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.20/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.850/2008.
RSA No.100552/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
4
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. SHRI RANGRAO S/O GOVINDRAO KULKARNI,
AGE: 80 YEARS, OCC: STUDENT,
R/O 'VAIKUNTA PRASAD',
OPP.DISTRICT COURT, DHARWAD.
3. SMT.BHAVANA W/O VASANTRAO PATIL,
AGE: 58 YEARS, OCC: SELF EMPLOYED,
R/O 223, VINAYAK NILAY, SARASWATI NAGAR,
VIJAYNAGAR (WEST), BENGALURU-560 040.
4. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
5. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
5
(BY SRI.SUDARSHAN SURESH ADV. FOR R1(B) & R1(1 TO 3),
SMT.SAVITHRIS.KULKARNI, ADV. FOR C/R3)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.21/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.851/2008.
RSA No.100557/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
6
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. SHRI MALLIKARJUN S/O ALLAPPA SIDNAL,
AGE: 68 YEARS, OCC: SERVICE,
R/O 54/1856, SUHASH NAGAR,
CHEMBUR-MUMBAI-400071.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH & SRI.D.M.MALLI, ADVS. FOR R1 & R2)
7
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.23/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.853/2008.
RSA No.100558/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ABHISHEK PATIL & SRI.M.H.SHINDE, ADVS.)
8
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. SHRI AJIT S/O MADHAVRAO DESHPANDE,
AGE: 59 YEARS, OCC: SERVICE,
R/O MULUND (WEST) MUMBAI-400080,
OPP.DISTRICT COURT, DHARWAD.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.HANUMANTHA REDDY SAHUKAR, ADV. FOR R1,
SRI.SHASHANK HEGDE, ADV. FOR R4,
R3 SERVED, R2 NOT KNOWN)
9
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.24/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.854/2008.
RSA No.100559/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
10
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. SMT.SHANTA V.SHIRAHATTI,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O WEST COAST PAPER MILLS,
DANDELI-581325, TAL: HALIYAL,
DISTRICT: UTTARA KANNADA.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH, ADV. FOR R1(B) & R1A(1 TO 3,
SRI.C.N.HARLAOUR & SRI.S.S.TATTIMANI, ADVS. FOR C/R2,)
11
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.25/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.855/2008.
RSA No.100592/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
12
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. DR.ASHOK S/O VADIRAJ KALAMADANI,
AGE: 60 YEARS, OCC: MEDICAL PRACTITIONER,
R/O RAJ ANNEXE, GREEN GARDEN',
GOKUL ROAD, HUBBALLI-580 030, DIST: DHARWAD.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH, ADV. FOR R1(B) & R1A(1 TO 3 & R2,
SRI.C.N.HARLAPUR & SRI,.S.N.KINI & SRI.N.S.KINI &
SRI.S.S.KULKARNI, ADVS. FOR R2)
13
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.22/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.852/2008.
RSA No.100593/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
14
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. PADMANABHA S/O SURYAKANT JOSHI,
AGE: 69 YEARS, OCC: RETIRED,
R/O NO.19, DIVYASHREE, APOORVA NAGAR,
GOKUL ROAD, HUBBALLI-580 030, DIST: DHARWAD.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH, ADV. FOR R1(B) & R1A(1 TO 3,
SRI.C.N.HARLAPUR & SRI.S.S.TATTIMANI, ADVS. FOR C/R2)
15
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.43/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.93/2012.
RSA No.100594/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
16
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. MALTESH S/O DYAVAN JOSHI SAVANUR,
AGE: 64 YEARS, OCC: RETIRED,
R/O LIG 42, 6TH CROSS, NAVANAGAR,
HUBBALLI-580 025. DIST: DHARWAD.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH, ADV. FOR R1(B) & R1A(1 TO 3),
SRI.C.N.HARLAPUR & SRI.S.S.TATTIMANI, ADVS. FOR RC/R2)
17
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.41/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.94/2012.
RSA No.100595/2018
BETWEEN
1. SMT.MEENAKSHI W/O MADHURKAR @ MADHUKAR NAIK,
AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
2. SMT.SHEHAL W/O MAHENDRA JAIN,
AGE: 55 YEARS, OCC: BUSINESS,
R/O 13C, IST CROSS, 14TH MAIN,
SECTOR NO.VI, HSR LAYOUT, BENGALURU-560 102.
3. SHRI ATUL S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 51 YEARS, OCC: BUSINESS,
ADARSH NAGAR, HUBBALLI-580 032.
PRESENTLY AT 18 DOLLOR HEIGHTS,
DOLLORS COLONY, GOKUL ROAD, HUBBALLI-580 030.
4. ANUP S/O MADHURKAR @ MADHUKAR NAIK,
AGE: 49 YEARS, OCC: BUSINESS,
R/O FLAT NO.302, SARASWATI CHS LTD.,
SECTOR NO.2, CHARKO, KHANDIWALI,
WEST-MUMBAI-400 067.
APPELLANTS 1, 2 & 4 ARE REP.BY THEIR POA HOLDER,
APPELALNT NO.3 NAMELY ATUL MADHUKAR NAIK.
... APPELLANTS
(BY SRI.ANAND ASTEKAR, SRI.AKSHAY KATTI, SRI.ABHISHEK PATIL
& SRI.M.R.SHINDE, ADVS.)
AND
1. SHRI. PANDURANG BHIMARAO LAXMESHWAR,
SINCE DECEAESD BY LEGAL REPRESENTATIES
18
1A. SHRI.KIRAN @ JOHN S/O PANDURANG LAXMESHWAR,
SINCE DECEASED BY LEGAL REPRESENTATIVES.
1AA. SMT.ASHWINI W/O KIRAN @ JOHN LAXMESHWAR,
AGE: 36 YEARS, OCC: BUSINESS,
1AB. KUM.ANUJ S/O KIRAN @ JOHN LAXMESHWAR
AGE: 8 YEARS, OCC: STUDENT,
1AC. KUM.ANUSH S/O KIRAN @ JOHN LAXMESHWAR,
AGE: 4 YEARS, OCC: STUDENT,
PROPOSED R1AB AND R1AC BEING MINORS, THEY ARE
REP.BY R1AA THEIR MOTHER AS NATURAL GUARDIAN.
ALL ARE R/O OPP. KALA BHAVAN-591 103
P.B.ROAD, DHARWAD.
1B. SHRI.KEERTHI @ JULI D/O PANDURANG LAXMESHWAR
AGE: 35 YEARS, OCC: BUSINESS & HOUSEHOLD,
R/O OPP. KALA BHAVAN-591 103, P.B.ROAD, DHARWAD.
2. PARASHURAM CHIDAMBARBHAT JOSHI,
AGE: 64 YEARS, OCC: RETIRED,
R/O 'PRABHU NIVAS', H.NO.KHB 10/B,
TWONSHIP DANDELI-581325 DIST: UTTAR KANNADA.
3. THE STATE OF KARNATAKA
REP.BY THE DEPUTY COMMISSIONER, DHARWAD.
4. THE SPECIAL LAND ACQUISITION OFFICER,
KIADB, PLOT NO.33/A, LAKAMANAHALLI INDUSTRIAL AREA,
P.B.ROAD, DHARWAD-580 003.
... RESPONDENTS
(BY SRI.SUDARSHAN SURESH, ADV. FOR R1(B) & R1A(1 TO 3)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC R/W
ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 26.04.2018 PASSED BY THE II ADDITIONAL
SENIOR CIVIL JUDGE & JMFC, HUBBALLI IN R.A.NO.42/2014 AND SET
ASIDE THE ORDER DATED 16.12.2013 PASSED BY THE III ADDL.
CIVIL JUDGE & JMFC, HUBBALLI ON PRELIMINARY ISSUE IN
O.S.NO.95/2012.
19
THESE APPEALS COMING ON FOR DICTATING ORDERES THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned Regular Second Appeals are filed by
the plaintiffs questioning the common orders passed in
batch of suits wherein the suits filed in O.S.Nos.850 to 855
of 2008 are dismissed as not maintainable.
2. Common questions are involved in all the
appeals which are tagged and heard together.
3. Brief facts leading to the case are:
Appellants/plaintiffs filed suits seeking the relief of
declaration that the sale deed executed by defendant No.1
in favour of defendant No.2 as illegal, null and void and not
binding on the plaintiffs share. The appellants/plaintiffs
further sought relief of declaration that plaintiffs are
entitled to receive the compensation amount in respect of
the suit properties acquired by defendant Nos.3 and 4. The
consequential relief of perpetual injunction is also sought
against defendant Nos.3 and 4 from paying compensation
amount to defendant No.2 in respect of suit properties. The
subject matter of second appeals is non-agricultural land.
The appellants/plaintiffs contended that originally land
bearing Sy.No.3/1 was renumbered as R.S.No.3/B, which
was totally measuring 6 acres situated at Gokul Road,
Hubballi. The appellants/plaintiffs contended that land was
converted for non-agriculture purpose and residential plots
were laid. One M.R.Naik who is the husband of plaintiff
No.1 and father of plaintiff Nos.2 to 4 died intestate on
18.04.1993 leaving behind present appellants as legal
heirs. The appellants/plaintiffs contended that they have
succeeded to the suit properties after the death of
M.R.Naik. Appellants/plaintiffs further contended that
Sy.No.3/1 was purchased out of the income of the
ancestral properties of deceased M.R.Naik and also income
accrued by the joint family business.
4. The grievance of the appellants/plaintiffs is that
original defendant No.1 on the basis of the General Power
of Attorney alleged to have been executed by M.R.Naik on
27.12.1984 has transferred the suit schedule property by
way of sale to defendant No.2 under registered sale deed
dated 13.06.1997. The appellants' contention is that
defendant No.1 was fully aware of the fact of death of
M.R.Naik and though alleged GPA executed by deceased
M.R.Naik automatically ceased, has ventured to transfer
the suit schedule property in favour of defendant No.2. On
these set of grounds, the appellants/plaintiffs claimed that
sale deed executed by defendant No.1 in favour of
defendant No.2 in respect of suit property is illegal, null
and void and therefore, not binding on the plaintiffs.
5. The appellants/plaintiffs have also specifically
averred in the plaint that suit property was acquired by
defendant No.3. Therefore, appellants/plaintiffs contend
that defendant No.2 is not entitled to receive any
compensation amount from defendant Nos.3 and 4 in
respect of suit schedule property. The appellants/plaintiffs
claim that they are absolute owners and therefore, it is
only appellants/plaintiffs who are entitled to receive the
compensation amount that would be determined by
defendant Nos.3 and 4 for having acquired the suit
schedule property. On these set of pleadings, the
appellants/plaintiffs filed the suits seeking identical reliefs
in respect of separate plot numbers and also plots covered
under those individual sale deeds.
6. Defendant No.1 on receipt of summons tendered
appearance and filed written statement and stoutly denied
the entire averments made in the plaint. Defendant No.1
took a specific contention in his written statement that GPA
executed by M.R.Naik who is ancestor of the appellants
herein was one coupled with interest. Therefore, it was well
within the authority of defendant No.1 to deal with the
properties in terms of authorization given under GPA.
Therefore, defendant No.1 has contended that based on
the GPA, he has sold the various plots by executing
registered sale deed dated 13.06.1997 in favour of
defendant No.2 and has also parted with possession
pursuant to sale deeds.
7. Defendant No.3 has also filed written statement.
The defendants seriously questioned the maintainability of
the suit and specific averments were also made in the
written statement. It is in this background the trial court
having formulated issues proceeded to treat the additional
issue No.1 as preliminary issue.
8. The appellants/plaintiffs and respondents /
defendants in support of their contentions canvassed
arguments in regard to maintainability and non-
maintainability of the suit. The trial court has taken note of
the order passed by this court in W.P.No.61411/2010. The
said proceedings in W.P.No.61411/2010 arose out of an
interlocutory application filed at the instance of defendant
No.1 under Order 39 Rule 1 and 2 of CPC. The said
application was allowed by the trial court, which was
reversed by the first appellate court on an appeal filed
under Order 43. Therefore, against the divergent orders, it
was respondent No.1/defendant No.1 who approached this
court in W.P.No.61411/2010. This court disposed of the
writ petition having taken judicial note of the fact that land
was already acquired. This court was of the view that since
there is serious title dispute in respect of suit schedule
property between the defendants and plaintiff Nos.1 to 4,
i.e., present appellants and respondent Nos.1 to 4, were
reserved with the liberty to file an application under
Section 18(2)(a) of the Land Acquisition Act with a further
direction that, if such an application is filed, the Land
Acquisition Officer was directed to deposit the entire
compensation amount before the appropriate court under
Section 31 of the Land Acquisition Act. On these set of
reasoning, this court disposed of the above cited writ
petition.
9. It is in this background, Misc. case No.67/2010
was presented by respondent No.1/defendant No.1. On
enquiry, the said petition was allowed by holding that
respondent No.1 is entitled for compensation and the claim
of present appellants/plaintiffs was rejected.
10. The trial court while examining the
maintainability of the suit has referred to these two
relevant orders and has come to the conclusion that the
present suit filed by appellants/plaintiffs would virtually
amount to re-litigating on the same cause of action. If the
claim of interse dispute between the appellants and
respondents is decided in Misc. case No.67/2010, the relief
sought by the appellants/plaintiffs in the present suits
cannot be entertained and it is in this background, the trial
court proceeded to dismiss the suit by recording a finding
that the same is not at all maintainable.
11. Being aggrieved by the judgment of the Trial
Court, the appellants-plaintiffs preferred an appeal before
the First Appellate Court. The First Appellate Court having
re-appreciated the entire material on record has also
concurred with the findings of the Trial Court and on
independent assessment, has held that if the interse
dispute between the appellants-plaintiffs and respondents-
defendants is decided in a Civil Misc.No.67/2010, the
appellants-plaintiffs cannot be permitted to re-agitate the
same cause and has consequently dismissed the appeal. It
is against this concurrent judgment and decree of the
Courts below the present appellants-plaintiffs are before
this Court.
12. Learned Counsel Sri. Akshya Katti reiterating
the grounds would vehemently argue and contend before
this Court that both the Courts have erred in dismissing the
suit as not maintainable on the ground that order passed in
Civil Misc. No.67/2010 has attained finality. He would
submit to this Court that the present suits are filed seeking
relief of declaration to the effect that the sale deeds
executed by respondent No.1 in favour of respondent No.2
are null and void and therefore, he would submit to this
Court that when disputed question of fact are involved, the
Trial Court has erred in non-suiting the appellants-plaintiffs
by summarily deciding the lis between the parties by
treating additional issue No.1 as preliminary issue and this
has led to miscarriage of justice and same would warrant
interference at the hands of this Court. He would submit to
this Court that in view of the complex dispute between the
parties, the Trial Court ought to have relegated the parties
to full-fledged trial and was not justified in adopting a
shortcut way of treating additional issue as preliminary
issue and therefore, would contend that the valuable rights
of the parties have been scuttled at threshold without even
permitting the plaintiffs to lead evidence and place on
record cogent and clinching evidence to demonstrate that
the appellants-plaintiffs dehors the GPA executed by their
father M.R. Naik have got independent right and therefore,
any transaction entered into between their father M.R.Naik
and respondent No.1 would not take away the valuable
rights of appellants-plaintiffs in the suit schedule
properties. These significant details are virtually ignored by
both the courts below and therefore, several substantial
questions of law would arise for consideration at the hands
of this Court and therefore, he would submit that this is a
fit case for admission.
13. Per contra, learned counsel Sri. Sudarshan
Suresh repelling the contentions and arguments canvassed
by the counsel for appellants-plaintiffs would submit to this
court that though respondents-defendants have multiple
defences and arguable points to support the concurrent
judgments of the Courts below in regard to maintainability
of the suit but however, he would restrict his arguments to
the judgment rendered by the Division Bench of this Court
in MFA No.22850/2013. He would submit to this Court that
the judgment rendered by the Division Bench of this Court
would clinch the issue and the dispute has to be put to
quietus in view of judgment rendered by the Division Bench
of this Court. To buttress his arguments, he has placed on
record the judgment rendered by the Division Bench of this
Court along with a memo. He would straight away take the
attention of this Court to paragraph 4 of the judgment and
by placing reliance on relevant paragraphs of the judgment
he would submit to this Court that the claim of the
appellants-plaintiffs, if any, is finally nailed by the Division
Bench of this Court and ratified by the Hon'ble Apex Court.
If these two judgments are looked into, then he would
submit to this Court that there is absolutely no scope to
look into the claim of appellants-plaintiffs. The orders
under challenge would further get strengthened by the
subsequent judgment rendered by this Court and therefore
seeks for dismissal of the appeals. He has also placed
reliance on the following judgments.
1. Shanti Budhiya Vesta Pate and others v.
Nirmala Jayaprakash Tiwari and others
reported in (2010) Supreme Court Cases 104.
2. Seth Loon Karan Sethiya v. Ivan E John and
others reported in AIR 1969 SC 73
3. Suraj Lamp and industries Pvt. Ltd., v. State
of Haryana in LAWS (SC) 2011 10 2
4. Sunder and another v. Addl. Collector (Land
Acquisition) and others reported 2012 SCC
Online 2279
14. Heard the learned counsel for the appellants and
the learned counsel appearing for respondents. Perused the
concurrent judgment and decrees of the courts below and
also I have bestowed my anxious consideration to the
detail reasons given by the Courts below while recording a
finding that the present suits filed by the plaintiffs are not
maintainable. I have also given my anxious consideration
to the judgment rendered by the Court below in Civil Misc.
No.67/2010. The judgment rendered by the Division Bench
of this Court in MFA No. 22850/2013 arises out of
proceedings in Civil Misc. No.67/2010 wherein the Trial
Court on examining rival claims has come to the conclusion
that the ancestor of the appellant-plaintiffs namely
M.R.Naik has executed irrevocable general power of
attorney coupled with interest. On perusal of the judgment
of Division Bench of this Court, this Court would find that
the appellants-plaintiffs have not at all taken any stand in
regard to nature of the property. There are absolutely no
contentions raised by the appellants-plaintiffs that the suit
schedule property was a joint family ancestral property.
The tenor of the pleadings and the manner in which the
contest is made by the appellant-plaintiffs, an inference
can be drawn that all along the appellants-plaintiffs
contended that on account of death of M.R.Naik, the GPA in
favour of respondent No.1 stands terminated. What can be
gathered from these proceedings is that the appellants-
plaintiffs are virtually claiming under M.R.Naik and at no
point of time asserted independent rights than that of
M.R.Naik. On a query to the counsel appearing for
appellants-plaintiffs as to whether the appeal memo filed in
miscellaneous first appeal is a part of the record, the
counsel is fair enough in submitting to this Court that the
appeal memo filed in miscellaneous first appeal is not a
part of the records. Even in Civil Misc.No.97/2010, the
records does not contain the objections, if any, filed by the
appellants-plaintiffs. At this juncture, counsel appearing for
the appellants-plaintiffs has fairly conceded that the
defence that it is a joint family property was not at all
taken while tendering objections to the petition filed in Civil
Misc. No.67/2010. If at the earliest point of time, the
appellants-plaintiffs have not raised objection and have not
asserted as to what is the nature of the suit schedule
property, which was dealt by M.R.Naik by executing
irrevocable GPA coupled with interest, the appellants-
plaintiffs, at this stage, cannot be permitted to retract and
take contrary stand and if such a stand is taken, the same
is impermissible and cannot be entertained, as it is to be
taken as an after thought. The judgment rendered by the
Division Bench would clearly reveal that the sale
consideration was not only received by M.R.Naik but by one
of his son, who is appellant before this Court under the
instruction of M.R.Naik under valid receipts. The clinching
evidence which is part of record it is also looked, it is
forthcoming that the Division Bench has also recorded a
finding that M.R.Naik in fact was compelled to sell this
property to redeem the mortgage. It has also come on
record that around 67 residential plots were formed and 59
plots have been sold to third parties under registered sale
deeds. The Division Bench of this Court has further
recorded a finding that the entire land was developed at
the costs of Rs.20,00,000/-. It would be useful to cull out
paragraphs 19 to 21 of the judgment rendered by the
Division Bench of this Court in MFA No.22850/2013, which
reads as follows:
"19. The petitioner-P.B. Laxmeshwar has to make
payment of Rs.1,50,000/- to the Canara Bank
towards the loan outstanding by M.R. Naik, in
addition, he has to pay Rs.75,000/- if he disposes
off the land of M.R. Naik as it is, as an agricultural
land and if he converts the said land into non-
agricultural one and forms plots and sell them, then
he has to pay Rs.1,50,000/- instead of Rs.75,000/-
in addition to the negotiated amount of
Rs.1,50,000/- to the Bank. In addition, P.B.
Laxmeshwar has agreed to give one plot to M.R.
Naik or his nominee measuring 40' x 60' free of
cost. Under Clause 5 of Ex.P.22, it is mentioned
that P.B.Laxmeshwar once makes payment as
above, he is free to deal with the land as per his will
and wish and M.R. Naik will have no claim over the
property or the amount. The said agreement dated
27.12.1984 has been referred in Ex.P-23-General
Power of Attorney in clause 7. Ex.P-23, irrevocable
power of attorney has been executed in favour of
P.B. Laxmeshwar by M.R. Naik to deal with the land
only after the entire amount is paid to the bank as
per the agreement and after obtaining clearance
certificate from the bank. Therefore, on conjoint
reading of Exs.P-22 and 23, it is clear that an
agreement is entered into on a sufficient
consideration whereby an authority is given for the
purpose for securing some benefit to the donee of
the authority, the authority is irrevocable on the
ground that it is coupled with an interest.
20. Where agency is created for valuable
consideration, an authority is given to effectuate
the security or to secure the interest of the agent,
the authority cannot be revoked. Section 202 of
the Contract Act reads thus:
" S. 202. Termination of agency, where agent has
an interest in subject-matter.- Where the agent
has himself an interest in the property which forms
the subject matter of the agency, the agency
cannot, in the absence of an express contract, be
terminated to the prejudice of such interest.
illustrations
(a) A gives authority to B to sell A's land, and to
pay himself out of the proceeds, the debts due to
him from A. A cannot revoke this authority, nor
can it be terminated by his insanity or death."
As per the said provision, if the agency is coupled
with interest, it is irrevocable. From the reading of
the illustration (a), it is clear, that if the authority is
coupled with interest, principal cannot revoke the
authority nor it can be terminated by insanity or
death. Therefore, even after the death of the
principal, the agent can act on the basis of the said
authority. Therefore, the General Power of
Attorney executed in favour of P.B. Laxmeshwar
dated 27.12.1984 as per Ex.P-23 read along with
Ex.P-22 is irrevocable power of attorney as it is
coupled with interest.
21. The subject matter of Exs.P-22 and 23, Sy.
No.3 of Gokul village has been acquired for the
purpose of Air Port. In the meantime, P.B.
Lakshmeshawar had converted the said land into
non-agricultural land and formed layout and sites
and sold some of the sites except site Nos.1, 6, 7,
8, 13, 15, 24, 40 and 42. The SLAO assessed the
compensation in a sum of Rs.1,23,02,274/- and
deposited the said amount with the Reference Court
while making reference under Section 31 of the
Land Acquisition Act. The said P.B. Laxmeshwar is
having right to receive the said compensation in
respect of the remaining plots except a plot
measuring 40' x 60' which he has agreed to give to
Sri. M.R. Naik or his nominee as per clause 2 of the
agreement at Ex.P-22. Therefore, the appellants,
who are the legal heirs of M.R. Naik are entitled to
proportionate compensation along with accrued
interest in respect of the plot measuring 40' x 60'
and the said P.B. Laxmeshwar is entitled for the
remaining amount of compensation along with
accrued interest. What is the exact value of the
site measuring 40' x 60' cannot be ascertained on
the basis of the material available on record.
Therefore, the matter requires to be remanded for
the said purpose to the Reference Court so that the
Reference Court can ascertain its value after giving
the parties an opportunity to lead their evidence in
this regard."
15. If these relevant paragraphs are examined, the
Division Bench of this Court having examined Ex.P23 has
come to the conclusion that respondent No.1 was
authorized by M.R.Naik to deal with the land. The Division
Bench of this Court on conjoint reading of Ex.P22 and 23
has held that the agreement is entered into after receipt of
sufficient consideration and consequently the authority is
given for the purpose of securing same benefit to the
donee of the authority and therefore in an unequivocal
term the Division Bench of this Court held that the
authority given under GPA to defendant No.1 is irrevocable
as it is coupled with interest. Paragraph 21 would further
remove all doubts as to whether appellants-plaintiffs can
be permitted to continue with this litigation. At paragraph
21, the Division Bench of this court has held that the legal
heirs of M.R.Naik are only entitled to proportionate
compensation in respect of plot measuring 60 x 40 fts and
the respondent No.1 is entitled for the remaining amount
of compensation along with accrued interest. These
findings would nail the entire lis between the parties and
would clinch the issue. Therefore, the judgment of the
Division Bench of this Court would virtually put rest to the
lis between the parties.
16. Probably the appellants/plaintiffs contention that
on account of death of M.R.Naik, the agency stands
terminated is based on assumption that the present GPA
executed by M.R.Naik falls within the domain of Section
201 of Contract Act, which contemplates that an agency
terminates, inter alia, by death of principal or agent. But
this contention cannot be acceded, as admittedly, the
present GPA executed by the ancestor of the appellants
herein is coupled with interest and therefore, it is
irrevocable. Section 202 of Contract Act lays down rule that
an authority coupled with interest is irrevocable and
therefore, the Division Bench of this court held that
defendant No.1 has interest in the suit schedule property.
Therefore, it is irrevocable during the subsistence of such
security or interest. If principal could not have terminated
GPA during his lifetime, question of termination of agency
only on account of death of principal is also not permissible
as GPA which is coupled with interest falls under Section
202 of Contract Act and not under Section 201 of Contract
Act. Therefore, death in itself would not terminate the
irrevocable GPA.
17. Though judgment rendered in MFA No.
22850/2013 is a subsequent event, it would further
strengthen the orders under challenge and therefore, I am
of the view that there is absolutely no scope for any
interference and the judgment rendered by the Division
Bench of this Court has attained finality. As it stands
ratified by the order passed by the Hon'ble Apex Court, I
am of the firm view that no substantial question of law
arises in the present batch of second appeals, which are
tagged together.
18. For the foregoing reasons, I proceed to pass the
following:
ORDER
No substantial question of law arises in
these second appeals. Accordingly, appeals are
dismissed.
In view of disposal of the appeals, pending
interlocutory applications, if any, do not survive
for consideration and are dismissed accordingly.
Sd/-
JUDGE
MBS/YAN/-
