Sri.Murali Krishna vs Sri A Mohan
2023 Latest Caselaw 7439 Kant

                            1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 02ND DAY OF NOVEMBER, 2023

                       BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

             R.F.A.No.522/2011(INJ)
           C/W R.F.A.No.523/2011(INJ)

IN R.F.A.No.522/2011
BETWEEN

SRI.MURALI KRISHNA
S/O KRISHNAPPA
AGED ABOUT 36 YEARS
EM CODE NO.82, SUNDARAM MOTORS
TVS BYPASS ROAD, POONAMALLEE
CHENNAI-600 056
TAMILNADU
                                     ...APPELLANT
(BY SRI K.S.KARTHIK KIRAN FOR
SRI KAPIL DIXIT & CO., ADVOCATES)

AND

1.    SRI A MOHAN
      S/O H APPAIAH SWAMY
      AGED ABOUT 43 YEARS

2.    SRI A VIJAYAKUMAR
      S/O H APPAIAH SWAMY
      AGED ABOUT 40 YEARS
                            2

3.   SRI A NARAYAN
     S/O H APPAIAH SWAMY
     AGED ABOUT 45 YEARS

     ALL THE RESPONDENTS ARE
     RESIDING AT UTTARAHALLI VILLAGE
     SUBRAMANYAPURA POST
     UTTARAHALLI HOBLI,
     BANGALORE SOUTH TALUK,
     BANGALORE - 560 086
                                     ...RESPONDENTS
(BY SRI N R NAIK, ADVOCATE FOR R1 TO R3)

     THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CIVIL PROCEDURE CODE AGAINST THE
JUDGMENT AND DECREE DATED 08.02.2011 PASSED IN
O.S.4798/2006 ON THE FILE OF THE XXII-ADDL. CITY
CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR
INJUNCTION.

IN R.F.A.No.523/2011


BETWEEN

SRI.MURALI KRISHNA
S/O KRISHNAPPA
AGED ABOUT 36 YEARS
EM CODE NO.82,
SUNDARAM MOTORS
TVS BYPASS ROAD, POONAMALLEE
CHENNAI-600 056
TAMILNADU
                                       ...APPELLANT
(BY SRI K.S.KARTHIK KIRAN FOR
SRI KAPIL DIXIT & CO., ADVOCATES)
                          3

AND

1.   SRI A MOHAN
     S/O H APPAIAH SWAMY
     AGED ABOUT 43 YEARS
     UTTARAHALLI VILLAGE
     SUBRAMANYAPURA POST
     UTTARAHALLI HOBLI,
     BANGALORE SOUTH TALUK,
     BANGALORE - 560 086

2.   SMT.SAMPURNAMMA
     W/O KRISHNAPPA
     AGED ABOUT 60 YEARS
     RESIDING AT BANASANKARI
     JAYANAGAR 8TH BLOCK
     KANAKAPURA MAIN ROAD
     BANGALORE - 560 082
                                     ...RESPONDENTS
(BY SRI N R NAIK, ADVOCATE FOR R1 AND R2)

      THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CIVIL PROCEDURE CODE AGAINST THE
JUDGMENT AND DECREE DATED 08.02.2011 PASSED IN
O.S.4798/2006 ON THE FILE OF THE XXII-ADDL. CITY
CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR
INJUNCTION.


      THESE   APPEALS   HAVING   BEEN     HEARD   AND
RESERVED      FOR   JUDGMENT,    COMING     ON    FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
                                      4


                           JUDGMENT

These two appeals arise out of the judgment and

decree passed in O.S.No.4798/2006 C/w

O.S.No.6502/2006 passed by the XXII Additional City Civil

Judge, Bengaluru dated 08.02.2011, whereby suit in

O.S.No.4798/2006 is dismissed and O.S.No.6502/2006 is

decreed.

2. RFA No.522/2011 is filed by the plaintiff in

O.S.No.4798/2006 who is the defendant in

O.S.No.6502/2006 and appellant in RFA No.523/2011

challenging the dismissal of the suit and decreeing of the

suit of the respondents.

3. Parties are referred to as plaintiff and defendants as

per their original ranking before the Trial Court for the

sake of convenience.

4. Facts in brief for disposal of the present appeals are

as under:

5. Plaintiff Muralikrishna has filed a suit against A.

Mohan, A. Vijayakumar and A. Narayan, who are the sons

of Appaiah Swamy, seeking perpetual injunction

restraining them from interfering with the possession of

the following property:

"Suit property is site bearing No.10, in khatha No.41, formed in Sy.No.4 of Uttarahalli village, measuring 30X40' feet bounded by East 20' road, west - private property, north - property No.9 and south by property No.11."

6. Case of the plaintiff is that he is the owner of the

above property having purchased the same from his

vendor - Sampurnamma, who is his mother under

registered sale deed dated 20.03.2001. Originally, land in

Sy.No.41 belonged to one H.Appaiah Swamy, who is the

father of the defendants who had formed revenue sites in

two acres of land in the said survey number and has

executed a General Power of Attorney on 25.09.1996 in

favour of Sampurnamma. Later, Sampurnamma executed

a sale deed in favour of the plaintiff being the General

Power of Attorney holder of Appaiah Swamy.

7. It is also contended that the plaintiff was in

possession and enjoyment of the above property by paying

taxes to the local body and has got the khatha transferred

in his name and commenced the construction of a building

in the month of 2005 and had to stop the construction on

account of paucity of funds for a period of two months.

The construction was put up to roof level and at that

stage, defendants started interfering with the possession

of the property without there being any right and

obstructed the construction work.

8. Again on 06.06.2006 the defendants made an

attempt to stop the construction contending that the

property belongs to them and therefore, the plaintiff has to

approach the local police, but the plaintiff was relegated to

the Civil Court on the ground that the matter is of civil

nature which constrained the plaintiff to file the suit for

permanent injunction.

9. In pursuance of the suit summons received by the

defendants, defendants entered appearance and filed

written statement, denying the case of the plaintiff in toto.

10. It is contended by the defendants that site No.10

claimed by the plaintiff belongs to defendant No.1 under

registered sale deed executed by Appaiah Swamy,

measuring 40 feet x 32.5 feet. It is further contended that

father of the first defendant died on 12.09.2001 and since

then, first defendant is in possession and enjoyment of the

suit property.

11. It is also contended that first defendant has filed a

suit in O.S.No.6502/2006 against the plaintiff and the

same is pending and when the first defendant actually

started construction, it is the plaintiff who interfered with

the possession of the property. It is also contended by

the first defendant that he got the khatha transferred on to

his name in respect of the suit property and he is paying

taxes.

12. He denied that the alienation made by

Sampurnamma in favour of the plaintiff and contends that

Sampurnamma had no right whatsoever to alienate the

property in favour of the plaintiff.

13. Based on the rival contentions of the parties, The

Trial Court has framed the following issues in

O.S.No.4798/2006:

1. Whether the plaintiff proves his lawful possession of the suit property as on the date of suit?

2. Whether the plaintiff proves interference by the defendants?

3. Whether the plaintiff is entitled for judgment and decree of permanent injunction?

4. Whether the suit as brought without seeking the relief of declaration of title is maintainable?

5. What decree or order?

14. In O.S.No.6502/2006 the suit properties are

described as above which is also filed for permanent

injunction seeking that the plaintiff in O.S.No.4798/2006

be restrained by contending that the plaintiff in

O.S.No.6502/2006 who is the first defendant in

O.S.No.4798/2006 is the owner of the property having

derived the title through bequeath executed by a

registered Will executed by Appaiah Swamy.

15. Defendant in O.S.No.6502/2006 denied the plaint

averments by contending that he is the owner of the

property having purchased the same from the General

Power of Attorney holder of Appaiah Swamy by name;

Sampurnamma. In O.S.No.6502/2006 following issues

were framed:

1. Does the plaintiff prove his lawful possession over schedule property?

2. Does the plaintiff prove the interference caused by the defendant with his possession?

3. What order or decree?"

16. In respect of both the suits common trial was held.

In order to prove the case plaintiff in O.S.No.4798/2006,

plaintiff got examined himself as P.W.1 and relied on 11

documents, which were exhibited and marked as Exs.P.1

to P.11 comprising of Sale deed as Ex.P.1, Tax paid receipt

as Ex.P.2, Assessment extract as Ex.P.3, G.P.A as Ex.P.4,

Encumbrance certificate as Ex.P.5, Sanctioned plan as

Ex.P.6, Permission for house construction as Ex.P.7,

Photographs as Exs.P.8 and Ex.P.9, Copy of complaint as

Ex.P.10, Affidavit of Sampurnamma as Ex.P.11.

17. On behalf of the defendants, first defendant Mohan

got examined himself as D.W.1 and one Rangappa has

been examined as D.W.2 and they have relied on 12

documents which were exhibited and marked as Exs.D.1 to

12 comprising of Certified copy of Will as Ex.D.1, Certified

copy of order dated 04.10.1980 as Ex.D.2, R.R.Extract as

Ex.D3, Index of land as Ex.D.4, Mutation extract as

Ex.D.5, Death Certificate as Ex.D.6, Genealogy tree as

Ex.D.7, Assessment register extract as Ex.D.8, Sanctioned

plan as Ex.D.9, License as Ex.D.10, Tax paid receipt as

Ex.D.11, Letter (Notice) as Ex.D.12.

18. On conclusion of recording of evidence in respect of

both the suits, learned Trial Judge heard the arguments in

detail in respect of both the suits and after considering the

rival contention of the parties, has dismissed the suit in

O.S.No.4798/2006 and decreed the suit in

O.S.No.6502/2006.

19. Being aggrieved by decreeing of the suit of the first

defendant - Mohan and others and dismissing the suit of

the plaintiff - Muralikrishna, the appeal in RFA 522/2011

and RFA 523/2011 are preferred by Muralikrishna on the

following grounds:

In RFA No.522/2011

 The judgment and decree of the court below in dismissing the suit is opposed to law, capricious, perverse and the same is being erroneous and illegal on the face of the record, causing injustice to the appellant.

 The court below has failed to appreciate the facts and evidence on record in arriving at a conclusion and dismissing the suit of the plaintiff/appellant.

 The court below grossly erred in coming to the conclusion that "non-payment of consideration under Ex.P1 raises a serious doubt in the case. None of the attesting witness is examined in this case, is also relevant", though the vendor of the appellant/plaintiff has acknowledged in the EXP1 that she received sale consideration of Rs.1,34,000/- in the presence of witness and the PW1 is also categorically stated in his cross-examination that he had paid the sale consideration of Rs 1,34,000/- before the Sub- Registrar. The court below has expressed its doubt only on the basis that the sub-registrar has not acknowledged the receipt of sale consideration by the vendor of the appellant/plaintiff and wrongly dismissed the suit of the appellant/plaintiff on the said doubt without appreciating the evidence properly.

 The court below is also erred in holding that there was no averment regarding delivery of possession to the appellant/plaintiff in the plaint in the suit filed by the appellant/plaintiff or written statement in the suit filed by the 1st respondent/defendant, though the appellant/plaintiff strongly contending that he is in possession and enjoyment of the suit property. This

amply proves that court below has passed the impugned judgment and decree mechanically.

 The court below expressed that there is a doubt about the case of the plaintiff for the reason that the appellant/plaintiff has paid tax first time in the year 2005 and he has only produced assessment extract at ExP3 for the year 2005-06 without considering the fact that he has produced the documents for year 2005-06 only to establish the fact of possession as on the date of cause of action. It is further stated that non- producing of tax paid receipt from 2001 and assessment extract for the years except 2005-06 can't take away ownership of the appellant/plaintiff.

 The court below erroneously comes to conclusion that "General Power Attorney at Ex P4 is not proved" by giving reason that "it was incumbent upon Muralikrishna to have examined one of the attesting witnesses or the advocate, who drafted it. There is not even examination of the person who identified the executant of Ex.P.4". The court below ought to have considered that fact that the defendant No.3 himself is the attesting witness to the Ex.P.4 and ExP11. However court below is not considered the Ex.P.11- affidavit executed by the Sri.Appaiah swamy in favor of vendor of the appellant/plaintiff since there is no pleading in this regard. Therefore court below is failed

to consider the evidence of the appellant/plaintiff and Ex.P.1, Ex.P.4 and Ex.P.11.

 The court below is totally erred in dismissing the suit though it is held that the 1st defendant Mohan has not proved the will at Ex.D.1 and there is no proof of Ex.D1. The court below further erred in holding that the appellant/plaintiff has failed to prove lawful possession, much less possession over suit property

 The court below ought to have considered the fact that the 1st defendant/respondent nowhere pleaded about his alleged possession over the suit schedule property on the basis of inheritance. Despite the same the Hon'ble court wrongly draw the inference that the 1st defendant is claiming under natural succession, if not under the will of his father and therefore it can be held that he is deemed to be in possession of the suit property or at least there is a probability of his case.

 The appellant submits that the Hon'ble Trial Court has not considered the documentary evidence on record which is exhibited by the plaintiff/appellant in support of his case and wrongly come to the conclusion that "I am perplexed to understand how for the same year- 2005/06 a panchayath could issue assessment extracts for different extents and in the name of different persons as in possession for the very

boundaries and very property number. In view of the same, the said documents are also not reliable".

 The court below ought to have considered the fact that the appellant made an application for withdrawal of the suit seeking leave from the court to file comprehensive suit since the respondents/defendants have disputed the his ownership over the suit property. The court below is also not provided reasonable opportunity to the appellant to argue his case and hurriedly passed an impugned judgment and decree on erroneous findings and thereby violated the principles of natural justice. Therefore the said judgment and decree is liable to set-aside.

 Even otherwise, the judgment and decree of the court below is opposed to law, capricious, perverse and same is being contrary to the material on record, facts and probabilities of the case, resulting injustice to the appellant."

In RFA No.523/2011

 The judgment and decree of the court below in allowing the suit is opposed to law, capricious, perverse and the same is being erroneous and illegal on the face of the record, causing injustice to the appellant.

 The court below has failed to appreciate the facts and evidence on record in arriving at a conclusion and allowing the suit of the plaintiff/ 1st respondent.

 The court below grossly erred in coming to the conclusion that "non-payment of consideration under Ex.P.1 raises a serious doubt in the case. None of the attesting witness is examined in this case, is also relevant", though the vendor of the appellant/1st defendant has acknowledged in the EX.P.1 that she received sale consideration of Rs 1,34,000/- in the presence of witness and the appellant is also categorically stated in his cross-examination that he had paid the sale consideration of Rs 1,34,000/- before the Sub-Registrar. The court below has expressed its doubt only on the basis that the sub-registrar has not acknowledged the receipt of sale consideration by the vendor of the appellant and allowed the suit of the 1st defendant on the said doubt without appreciating the evidence properly.

 The court below is also erred in holding that there was no averment regarding delivery of possession to the appellant in the plaint or written statement though the appellant strongly contending that he is in possession and enjoyment of the suit property. This amply proves that court below has passed the impugned judgment and decree mechanically.

 The court below expressed that there is a doubt about the case of the appellant for the reason that the appellant has paid tax first time in the year 2005 and he has only produced assessment extract at ExP3 for the year 2005- 06 without considering the fact that he has produced the documents for year 2005-06 only to establish the fact of possession as on the date of cause of action and suit filed. It is further stated that non- producing of tax paid receipt from 2001 and assessment extract for the years except 2005-06 can't take away ownership of the appellant.

 The court below erroneously comes to conclusion that "General Power Attorney at Ex.P4 is not proved" by giving reason that "it was incumbent upon Muralikrishna to have examined one of the attesting witnesses or the advocate, who drafted it. There is not even examination of the person who identified the executant of Ex.P.4". The court below ought to have considered that fact that brother of the 1st respondent himself is the attesting witness to the Ex.P.4 and Ex.P.11. However court below is not considered the ExP11-affidavit executed by the Sri.Appaiah swamy in favor of vendor of the appellant since there is no pleading in this regard. Therefore court below is failed to consider the evidence of the appellant and ExP1, ExP4 and ExP11.

 The court below is totally erred in allowing the suit though it is held that the 1st respondent Mohan has not proved the will at Ex.D1 and there is no proof of Ex D1. The court below further erred in holding that the appellant has failed to prove lawful possession, much less possession over suit property.

 The court below ought to have considered the fact that the 1st respondent/plaintiff nowhere pleaded about his alleged possession over the suit schedule property on the basis of inheritance. Despite the same the Hon'ble court wrongly draw the inference that the 1st respondent is claiming under natural succession, if not under the will of his father and therefore it can be held that he is deemed to be in possession of the suit property or at least there is a probability of his case.

 The appellant submits that the Hon'ble Trial Court has not considered the documentary evidence on record which is exhibited by the appellant in support of his case and wrongly come to the conclusion that " I am perplexed to understand how for the same year- 2005/06 a panchayath could issue assessment extracts for different extents and in the name of different persons as in possession for the very boundaries and very property number. In view of the same, the said documents are also not reliable".

 The court below is also not provided reasonable opportunity to the appellant to argue his case and hurriedly passed an impugned judgment and decree on erroneous findings and thereby violated the principles of natural justice. Therefore the said judgment and decree is liable to set-aside.

 Even otherwise, the judgment and decree of the court below is opposed to law, capricious, perverse and same is being contrary to the material on record, facts and probabilities of the case, resulting injustice to the appellant.

20. Sri K.S. Karthik Kiran, for Sri Kapil Dixit and Co,

learned counsel appearing on behalf of appellant has

vehemently contended that the learned Trial Judge has

failed to note that plaintiff is the owner of the property,

having purchased the same from his mother who is the

power of attorney holder of Sri K. Appaiah Swamy.

Therefore, he was in possession of the property as owner

and he has put up construction upto roof level. On

account of paucity of funds, he had stopped the

construction and at that juncture, the defendants started

interfering with the suit property which necessitated the

plaintiff to file the suit in O.S.4798/2006 at the first

instance and as a counter blast to the said suit in order to

cover up illegal activities committed by the defendants,

they have also filed O.S.6502/2006 on the basis of the sale

deeds said to have been executed by Appaiah Swamy.

Trial Court not noticing the said aspect of the matter

wrongly dismissed the suit of the appellant and allowed the

suit of the respondents, resulting in miscarriage of justice

and sought for allowing both the appeals.

21. He also contended that the material on record clearly

depict that the vendor of the respondents/defendants are

none other than Appaiashswamy, who has executed a

power of attorney in favour of his own wife Smt.

Sampurnamma and based on the basis of said power of

attorney Smt. Sampurnamma has executed a registered

sale deed in favour of the plaintiff and therefore, the title

in respect of the suit property passed on the plaintiff. As

such, first defendant cannot claim a better title than the

plaintiff and as he has also claimed right under the sale

deed said to have been executed by Appaiah Swamy and

sought for allowing the appeals.

22. Per contra Sri N.R. Naik, learned counsel appearing

on behalf of the respondents contended that the first

defendant is the beneficiary under the registered Will

executed by Appaiah Swamy and therefore, the execution

of the sale deed by Sampurnamma in favour of the plaintiff

did not result in deriving any right, title or interest of the

suit property by the plaintiff which has been rightly

appreciated by the learned Trial Judge in the impugned

judgment and rightly dismissed the suit of the plaintiff and

decreed the suit of the first defendant who is plaintiff in

O.S.No.6502/2006 and sought for dismissal of both the

appeals.

23. In view of the rival contentions of the parties,

following points would arise for consideration:

1) Whether the plaintiff - Muralikrishna has successfully established that he is the absolute

owner, in possession of the property bearing No.10, in khatha No.41 formed in Sy.No.4 of Uttarahalli village and has derived any right, title or interest under the registered sale deed dated 20.03.2001 executed by Sampurnamma in favour of the plaintiff - Muralikrishna?

2) Whether the plaintiff further proves that first defendant Mohan did not derive any right, title or interest in the registered Will dated 10.08.2001 executed by Appaiah Swamy in favour of the first defendant - Mohan and he has illegally interfered with the peaceful possession and enjoyment of the suit property?

3) Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference?

4) What order?

24. Regarding point Nos.1 to 3 : In the case on hand,

evidence of Muralikrishna is nothing but reiterating the

contents of the plaintiff in O.S.No.4798/2006 and the

contents of written statement in O.S.No.6502/2006.

25. P.W.1 in his cross-examination has answered as

under:

 "Sampurnamma is my mother. She is with me. It has not come to my notice as to whether the summons issued by this court in two cases to me as well as my mother to our address at Bellary have been received or not. It is true that I have appeared before this court in two cases. It may be true that those two cases are pending against my mother also. My Mother is healthy. There is no difficulty for her in appearing before the court. The witness volunteers that his mother is an illiterate and can neither understand the court proceedings not make available the documents. I now see the document Ex.P1 which is the registered sale deed. My mother cannot read the contents of this document by herself and understand. A sum of Rs.1,34,000/- was paid by me to my mother. I told her as to the purpose for which I gave that sum to my mother. My mother had executed a sale deed as per Ex.P1 by virtue of

power of attorney executed by Appaiahswamy. I know that my mother was the owner of the property as on the date of Ex.P1. By means of the power of attorney executed by Appalahswamy in favour of my mother the possession was also delivered. I cannot read English fluently nor I can understand that language properly. It is not correct to say that there is no recital in the power of attorney to the effect that possession was delivered by Appalahswamy to my mother. Before getting the sale deed registered in my favour I went to Appaiahswamy and asked him to be present. On the date of execution of sale deed in my favour, neither myself nor my mother paid money to Appaiahswamy. I did not observe as to whether or not khata in respect of the property which was the subject matter of sale in my favour was standing in the name of either Appaiahswamy or my mother as on the date of execution of sale deed in my favour. The khata number of the property mentioned as 41 in the sale deed Ex.P1 was noted on the basis of the recitals found in the GPA. I cannot now say as to whether or not khata number is

mentioned in the power of attorney Ex.P4 since I cannot read or understand English.

 Before getting the registered sale deed executed by my mother in my favour we approached the executant of the power of attorney who executed the said document of power of attorney in favour of my mother. He expressed his inability to accompany on account of his old age and informed that he has authorised his attorney to execute the sale deed. Saying so he sent his son Narayanaswamy to accompany us. We have not made any payment to the executant of the power of attorney on that day. My mother also did not make any payment to the executant of the power of attorney on that date. I made payment of the no consideration amount to my mother at the time of registration. I do not know whether or not that amount which was received by my mother was paid by her to the executant of the power of attorney. I did not try to ascertain as to in whose name the khata in respect of the suit property stood and who made payment towards tax during the period from 1976 to 2001. I was not having any tax paid receipt in my possession at the time when

the sale deed was got registered in my favour.

I do not know           whether Appayyanna had
bequeathed        the   suit    schedule       property    in

favour of first defendant Mohan by executing a Will. It is not correct to say that the first defendant after getting the khata in respect of suit property changed to his name on the strength of the Will has been in possession and enjoyment of it. It is not correct to say that the first defendant obtained licence and a sanctioned plan in order to put up construction on the suit property on the basis of the Will. It is not correct to say that when the first defendant put up construction upto lintel level on the suit property I went there and interfered by doing galata. It is true that a caveat petition was filed before this court on 2.6.2006. It is not correct to say that I am not in possession of the suit property. It is not correct to say that I have not proceeded to put up any construction on the suit property from the year of 2005 and onwards. It is not correct to say that the construction as reflected in the photographs Exs.P8 and P9 were made by the first defendant. The witness volunteers that the said construction was made by him. It is

not correct to say that on said 6.6.2006 the defendants did not interfere with my possession in the manner stated by me in the plaint. It is not correct to say that the property belonging to me is situated elsewhere. It is not correct to say that the suit property does not belong to me."

26. As such above plaintiff admitted that his mother is

an illiterate and she does not know the contents of Ex.P.1.

He admits that he has sold the purpose for which Ex.P.1

came to be executed and he has paid Rs.1,34,000/-. He

has answered that his mother was the owner of the suit

property by virtue of power of attorney executed by

Appaiah Swamy in her favour and therefore, she has

executed a sale deed as per Ex.P.1 in his favour. He also

admits that he is unable to read English fluently, nor he

can understand the language properly. He pleaded

ignorance that there is no recital in the power of attorney

to the effect that possession was delivered by Appaiah

Swamy to his mother. He admits that neither himself nor

his mother paid money to Appaiah Swamy who is the

principal and the owner of suit property and executed the

power of attorney in favour of Smt. Sampurnamma.

27. He admits that he did not ascertain as to the

revenue entries in respect of the suit property. He has

pleaded ignorance of the fact that Appaiah Swamy has

executed the Will in favour of the first defendant - Mohan

and bequeathed the suit property in favour of Mohan.

28. First defendant is examined as D.W.1 by filing an

affidavit reiterating the contents of his written statement

and also plaint averments made in his suit.

29. This witness has not been cross-examined on behalf

of the plaintiff and therefore, his cross-examination has

taken as nil.

30. Sri Rangappa is examined as D.W.2. He has filed an

affidavit in lieu of his examination in chief. He has stated

that he is mason by profession and he has been engaged

by the first defendant to put up construction over the suit

property and he had constructed the suit property as is

found in Exs.P.7 and P.8.

31. In his cross-examination, he has answered that he

has given his address as resident of Appaiah Swamy

Layout and first defendant has brought him to the Court as

a witness to depose on behalf of first defendant. He has

stated that Appaiah Swamy layout is formed by Appaiah

Swamy and first defendant. He has answered that he is

acquainted with first defendant for last 20 years and he

has also worked under father of first defendant. He denied

the suggestion that he has given false evidence in favour

of the first defendant.

32. On judicious consideration of the above evidence on

record it is seen that there is no dispute that the suit

property was originally owned by Sri Appaiah Swamy, who

is the father of the plaintiff and first defendant. There is

no dispute that Appaiah Swamy had a wife by name

Sampurnamma. It is the case of the plaintiff that Appaiah

Swamy had executed a power of attorney in favour of

Sampurnamma and Sampurnamma was managing the

properties of Appaiah Swamy. According to the plaintiff,

acting under the registered power of attorney executed by

Appaiah Swamy in favour of Sampurnamma on

25.09.1996, Sampurnamma sold the suit property in

favour of the plaintiff who is the none other than son of the

plaintiff and brother of first defendant for a valuable

consideration in a sum of Rs.1,34,000/-.

33. According to the plaintiff, he became the owner of

the suit property by virtue of the sale deed marked at

Ex.P.1 dated 20.03.2001 and he has put up the

construction on the suit property. The same is denied by

the first defendant by contending that the father of the

first defendant and plaintiff namely; Sri Appaiah Swamy

has executed a registered Will on 10.08.2001, whereunder

he has bequeathed the suit property along with other

properties in favour of the first defendant. Registered

power of attorney dated 25.09.1996, registered in the

office of the Sub-Registrar, whereby Appaiah Swamy had

granted all the powers to deal with the suit property. It is

pertinent to note that the suit property claimed by the

plaintiff is measuring 30 feet X 40 feet, whereas the first

defendant has claimed the site measurement as 40 feet X

32.05 feet and in the power of attorney also there is a

mention that East to West 30 feet and North to South 40

feet. Even though there is a slight variation in the

measurement, the suit property claimed by the plaintiff

and the first defendant are one and the same property.

34. The plaintiff has relied upon Ex.P.1 Sale Deed based

on the power of attorney marked at Ex.P.4 executed by

Appaiah Swamy in favour of Sampurnamma and plaintiff

paid Rs.1,34,000/- in favour of Sampurnamma. But, in

the sale deed marked at Ex.P.1, there is no endorsement

that the sale consideration of Rs.1,34,000/- is paid in cash

by plaintiff to Sampurnamma, nor the said amount is paid

by Sampurnamma in favour of her principal namely;

Appaiah Swamy, who is none other than the husband of

Sampurnamma. In other words, the action of the agent

namely; Sampurnamma ought to have been ratified by her

principal namely; Appaiah Swamy, after Ex.P.1 came to be

executed. No such ratification has taken place as could be

seen from the fact that few months after execution of

Ex.P.1, Ex.D.1 registered Will is executed by Sri Appaiah

Swamy in favour of the first defendant.

35. It is pertinent to note that Ex.P.1 is the sale deed is

dated 20.03.2001 and the same is not ratified by Appaiah

Swamy and the same can be gathered from the contents

of Ex.D.1 which is the registered Will dated 10.08.2001,

where under the suit property has been bequeathed in

favour of first defendant by Appaiah Swamy. It is also

pertinent to note that contents of Ex.D.1 does not mention

about execution of power of attorney in favour of his wife.

Therefore, it was incumbent on the part of plaintiff to

examine Smt. Sampurnamma as a witness to prove

Ex.D.4.

36. It is settled principles of law that when a principal

authorised his agent to do a particular act, generally it

would be considered as the action of the agent would be

gratified by the principal. But, when there is a dispute, the

person who propounds a theory that there is an implied or

express ratification of the act committed by the agent, has

to be established by placing cogent and convincing

evidence on record.

37. In the case on hand, on behalf of the plaintiff, except

examining the plaintiff, no other witnesses is examined so

as to prove that the consideration has been paid by the

plaintiff in favour of agent namely; Sampurnamma. In

other words, insofar as Ex.P.1 is concerned, the sale

consideration of Rs.1,34,000/- has not been proved by the

plaintiff.

38. Further, the consideration said to have been received

by Sampurnamma is not for herself, but it is for and on

behalf of her husband Sri Appaiah Swamy as

Sampurnamma was only an agent.

39. There is no material evidence placed on record that

the sale consideration as per Ex.P.1 has reached the hands

of Sri Appaiah Swamy. On the contrary, the material

evidence on record would go to show that the plaintiff has

answered that he is not aware that the sale consideration

has reached the hands of his father Appaiah Swamy. In

other words, taking advantage of the close relationship of

Sampurnamma with Appaiah Swamy and the plaintiff,

taking advantage of the power of attorney executed by

Appaiah Swamy in favour of his wife, Sampurnamma,

plaintiff managed to get document executed by

Sampurnamma in his favour in respect of the suit property

and when the same is disputed, it was incumbent on the

part of the plaintiff to seek a relief of declaration by either

amending the suit or by filing the necessary amendment to

the present suit or by filing a separate suit. No such

attempt was made by the plaintiff. Therefore, alleged

lawful possession of the plaintiff itself is doubtful.

40. On the contrary, material evidence on record in the

form of oral evidence of D.Ws.1 and 2 would go to show

that it is D.W.2 who has constructed structure upto lintel

level on the suit property for and on behalf of the first

defendant. It is the case of the plaintiff that he has put up

construction, defendant has interfered with the

construction.

41. On behalf of the plaintiff, except examining the

plaintiff, no other witnesses are examined so as to

establish that it is he, who actually put up construction.

Taking note of the fact that the plaintiff and first defendant

are the real brothers, it is required that the parties must

place somewhat an additional evidence which is in

corroboratory in nature and not mere oath against oath.

Further, for the reasons best known to the plaintiff, D.W.1

who is the first defendant is not even cross-examined on

behalf of the plaintiff. In other words, the oral evidence

adduced by the first defendant on oath remains

unchallenged.

42. These aspects of the matter has been taken note of

by the learned Trial Judge in a pragmatic and rightful

manner and dismissed the suit of the plaintiff and decreed

the suit of the defendants.

43. Even after re-appreciation of material evidence on

record, this Court does not find any legal infirmity and

perversity in the finding recorded by the learned Trial

Judge in the impugned judgment.

Accordingly, point Nos.1 and 2 are answered in the

Negative and point No.3 in the Affirmative.

44. Regarding point No.4: In view of findings on point

Nos.1 to 3, following order is passed:

ORDER

Both the appeals are dismissed.

No order as to costs.

Sd/-

JUDGE

MR