Karnataka High Court
Sri S R Ramu vs Sri S R Balareddy on 22 November, 2023
Author: V Srishananda
Bench: V Srishananda
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RFA No. 597 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 597 OF 2008 (INJ)
BETWEEN:
SRI S R RAMU
S/O LATE S A RAMASWAMY REDDY
AGED ABOUT 54 YEARS
R/AT NO 78/1, I MAIN ROAD,
I CROSS, SUDDAGUNTEPALYA
D.R.C. COLLEGE POST,
BANGALORE - 560 020
...APPELLANT
(BY SRI V B SHIVA KUMAR, ADVOCATE)
AND:
1. SRI S R BALAREDDY
Digitally S/O LATE S A RAMASWAMYREDDY
signed by R SINCE DECEASED BY LRS
MANJUNATHA
Location:
HIGH COURT 1(a) SMT GEETHA
OF
KARNATAKA W/O LATE S R BALA REDDY
AGED ABOUT 49 YEARS
1(b) SRI B R RAGHAVENDRA
S/O LATE S R BALA REDDY
AGED ABOUT 27 YEARS - DEAD
1(c) SRI B DILIP KUMAR
S/O LATE S R BALA REDDY
AGED ABOUT 24 YEARS
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RFA No. 597 of 2008
ALL THE RESPONDENTS ARE
RESIDING AT
R/AT NO 131, 8 MAIN ROAD,
15TH CROSS, WILSON GARDEN,
BANGALORE - 560 030
...RESPONDENTS
(BY SRI T.N.VISWANATHA, ADV. FOR R1 (a) & (c))
***
RFA FILED U/S.96(1) OF CPC AGAINST THE JUDGMENT
AND DECREE DT.7.2.2008 PASSED IN O.S.NO.5561/2000 ON
THE FILE OF THE XXXVII ADDL. CITY CIVILAND SESS. JUDGE,
BANGALORE, DECREEING THE SUIT FOR PERPETUAL
INJUNCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel Sri V.B. Shivakumar, for appellant
and learned counsel Sri T.N.Viswanatha for respondent No.1 (a)
& (c).
2. This appeal is preferred against the judgment and
decree dated 07.02.2008 passed by the XXXVII Addl. City Civil
and Sessions Judge at Bangalore City (CCH-38) in OS
No.5561/2000.
3. The parties are referred to as the 'plaintiffs' and
'defendant' for the sake of convenience.
4. The facts in brief, which are utmost necessary for
disposal of this appeal are:
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Plaintiff filed a suit in respect of a residential site bearing
No.2, carved out of land bearing Sy. No.91/1(c) of Tavarekere
Village, now known as Maruthinagar, Madivala and now coming
within Ward No.63 of Corporation of City of Bangalore, together
with existing structure and coconut trees, measuring East to
West 28.6 ft and North to South 38 ft. and bounded on the East
by site No.1, West by Site No.3, North by Private Property and
on the South by Road, together with easements and
appurtenances, (hereinafter referred to 'suit property').
5. The plaintiff claims that the suit property is
residential site and he is the absolute owner of the suit
property. He further contended that suit for partition was filed
in OS No.5255/1993 between plaintiff and his brothers.
Defendant in the said case is none other than the brother of the
plaintiff.
6. He further contended that suit for partition ended in
a compromise between plaintiff and his two brothers, including
defendant. Suit Schedule 'C' property of the said case has
fallen to the share of the plaintiff, in which the suit schedule
property is item No.3 in the said suit. The suit schedule A
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property of the said case had fallen to the share of the
defendant.
7. The partition become final and there is no further
dispute between the family members. He further contended
that plaintiff after retaining site No.2, which is the suit schedule
property in the present case, has disposed of all the remaining
sites that have been allotted to his share, except the suit
property. He further contended that the defendant has no
manner of right whatsoever over the suit schedule property and
plaintiff is in lawful enjoyment of the suit property.
8. Plaintiff also contended that since the plaintiff was
employed in VDO India Limited, with an intention to develop
the suit property, he had executed a General Power of Attorney
in favour of the defendant on 18.10.1997 and requested him to
get transferred the katha of the suit property in favour of the
plaintiff in the revenue records.
9. He further contended that the defendant however,
did not take any initiate in that regard and with an intention to
misuse the General Power of Attorney given by the plaintiff to
him, defendant started troubleing the tenants of the plaintiff in
unlawfully blocking the access to the suit property. Police were
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intimated about the conduct of the defendant by the tenants of
the plaintiff.
10. After such incidents, the relationship between
plaintiff and defendant got strained and finally plaintiff got
cancelled the said General Power of Attorney on 24.11.1998,
which has been registered in the Office of the Sub-Registrar,
Jayanagar, Bangalore.
11. The plaintiff also contended that the property which
was allotted to him was measuring 40 ft east to west and 35ft
north to south. However, due to encroachment by the
neighbours, the suit property has now been reduced to
measurements as aforesaid. When the defendant further
continued to interfere with the peaceful possession and
enjoyment of the suit property by plaintiff through his tenants,
the plaintiff is constrained to file the present suit for injunction.
12. Upon service of the suit summons, the defendant
entered appearance and filed written statement. He admitted
about the compromise decree in OS No.5255/1993 and all the
plaint allegations were denied. The defendant maintained that
the General Power of Attorney executed by the plaintiff in his
favour is for consideration and therefore, the said General
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Power of Attorney is to be construed as agency coupled with
interest and therefore, the defendant had power to alienate the
suit property and he has alienated the same in favour of third
person, namely, C.K. Kemparaju and therefore, plaintiff cannot
maintain the suit for bare injunction and sought for dismissal of
the suit.
13. Based on the rival contentions of the parties, the
learned trial Judge framed the following issues:
"1) Whether the plaintiff proves his lawful
possession over the suit schedule property as on
the date of the filing of the suit?
2) Whether the plaintiff proves the alleged
interference by the defendant over the suit
schedule property?
3) What order or decree?"
14. In order to prove the case of the plaintiff, plaintiff
got examined one S.N. Hanumappa as PW1 and placed on
record 19 documents which were exhibited and marked as
Ex.P1 to P19, comprising of registered cancellation deed
dt.24.11.1998, photographs, bill for having taken the
photographs, correspondence between the parties, copy of the
representation, copy of the police complaint and
acknowledgement, power of attorney dated 14.02.2005, death
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certificate, certified copy of plaint in OS No.5255/1993, copy of
the compromise petition, sketch and copy of the notice.
15. As against the evidence that has been placed by the
plaintiff, on behalf of defendant, Defendant got examined as
DW1 and he also got examined other two witnesses, namely,
S.R.Prakash and S.R. Manjunath, as DW2 and 3. On behalf of
defendant five documents were exhibited and marked as Ex.D1
to D5, comprising photo copy of sketch, copy of agreement,
registered power of attorney, agreement of plaintiff and caveat
petition.
16. On behalf of Court, signature on the vakalathnam
and vakalath were exhibited and marked as Ex.C1 and C1(a),
signature of the defendant in written statement and objection
to IA No.1, are marked as Ex.C2 and C3, Ex.C2(a) & (b) and
C3(a) & (b), IA No.VI is marked as Ex.C4 and signatures
thereon as Ex.C4(a) & (b).
17. On conclusion of recording the evidence, the
learned trial Judge heard the parties in detail and decreed the
suit of the plaintiff, as under:
"In the result the suit of the plaintiff is decreed
with costs as under:
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The defendant is perpetually constrained from
interfering and obstructing in the peaceful
possession and enjoyment of the plaintiff over the
suit schedule property and he has also been
restrained from representing himself as agent of
the plaintiff.
Draw a decree accordingly."
18. Being aggrieved by the same, the defendant had
preferred the present appeal.
19. Reiterating the grounds urged in the appeal
memorandum, the learned counsel Sri V.B. Shivakumar
appearing on behalf of appellant vehemently contended that
the learned trial Judge has failed to note that the General
Power of Attorney executed by the plaintiff in favour of the
defendant, who is none other than the brother of the plaintiff,
has created an agency coupled with interest. Therefore, the
defendant had power to alienate the property in favour of C.K.
Kemparaju.
20. He further contended that cancellation of the said
General Power of Attorney, said to have been made by the
plaintiff, is without notice to the defendant and therefore, it is a
unilateral cancellation and thereby the alienations made by the
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defendant earlier to the cancellation needs to be protected
under the law of agency. Therefore, suit ought to have been
dismissed by the learned trial Judge.
21. He further contended that the allegations made in
the plaint that the plaintiff executed the General Power of
Attorney in favour of the defendant only for the purpose of
change of khatha in the revenue records, is incorrect having
regard to the contents of the General Power of Attorney
marked at Ex.D3 and therefore, learned trial Judge ought not to
have decreed the suit and sought for allowing the appeal.
22. Per contra, the learned counsel Sri T.N. Viswanatha,
appearing for the plaintiff - respondent contended that the
General Power of Attorney executed by the plaintiff in favour of
the defendant is not in dispute, but it was only for the purpose
of effecting the revenue entries and to look after and develop
the property, as the plaintiff was employed in VDO India Ltd as
he could not be personally present near the suit property.
23. He further contended that taking advantage of the
precarious condition of the plaintiff, the defendant started
misusing the General Power of Attorney and started obstructing
the tenants, who are in the suit property and also went to the
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extent of digging the roads, so as to block the access to the
suit property by the tenants of other properties belonging to
the plaintiff resulting in filing of the suit. Learned trial Judge
has taken note of the cancellation of the General Power of
Attorney on 24.11.1998 marked at Ex.P1 and has rightly
decreed the suit of the plaintiff.
24. He also pointed out that if the defendant claims any
right, title or interest that has accrued to him under the
registered General Power of Attorney, the defendant is at
liberty to file necessary suit wherein there would be a
comprehensive enquiry as to the validity and exact power that
has been granted to the defendant under the General Power of
Attorney when it was in force and therefore, sought for
dismissal of the appeal.
25. In view of rival contentions of the parties, this Court
perused the material on record meticulously.
26. On such perusal of the material on record, the
following points would arise for consideration:
"(1) Whether the defendant has made out a case
that he had every right under the General Power of
Attorney marked at Ex.D3 to alienate the suit
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property in favour of third party and the General
Power of Attorney marked at Ex.D3 is created the
agency coupled with interest?
(2) Whether the defendant further make out a case
that by virtue of the General Power of Attorney the
defendant exercised the right under Ex.D3 of
possession and power of alienation?
(3) Whether the impugned judgment is suffering
from legal infirmities?
(4) What order?"
Reg. Point Nos. (1) to (3):
27. In the case on hand, the suit property belongs to
the plaintiff is not in dispute as the same has been allotted to
the plaintiff in a compromise decree entered into by the plaintiff
and his brothers, including the defendant, in OS No.5255/1993.
Likewise, it is not in dispute that the plaintiff was gainfully
employed in VDO India Ltd. and therefore, a registered Power
of Attorney came to be executed in favour of the defendant
marked at Ex.D3. Further, there is document produced on
behalf of plaintiff dated 24.11.1998, which is a registered
cancellation deed.
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28. According to the plaintiff, the Power of Attorney
executed by him in favour of the defendant is one for only
managing and developing the property without the power of
alienation and the defendant has misused the Power of
Attorney and started interfering with the possession of the
property and also blocking access to the remaining property
belonging to the plaintiff, which is not the subject matter of the
suit.
29. The material evidence on record would go to show
that S.R.Balareddy, the original plaintiff, died on 30.12.2002.
However, the real dispute amongst the parties would be that
whether the defendant had power under Ex.D3 to alienate the
suit property in favour of C.K.Kemparaju.
30. In a suit for bare injunction the Court has to
incidentally form an opinion with regard to the title only for the
purpose of finding out the lawful possession. In the case on
hand, the plaintiff being the owner of the property is not in
dispute, he continues to be in lawful possession of the suit
property.
31. Whether at all Ex.D3 granted any specific power of
alienation in defendant or not cannot be the subject matter of
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the present suit having regard to the nature of the suit.
Likewise, whether the cancellation of Ex.D3 by executing Ex.P1
on 24.11.1998, is valid or not cannot also be gone into by this
Court having regard to the scope of the suit.
32. Further the defendant possessed any right whereby
he could have alienated the property in favour of the C.K.
Kemparaju or not also cannot be decided by this Court in this
appeal, having regard to scope of the suit.
33. It is always open for the defendant or his alienee
C.K. Kemparaju to file an appropriate comprehensive suit
making out their title in respect of the suit property by virtue of
the Power of Attorney executed by the plaintiff in favour of the
defendant marked at Ex.D3.
34. Reserving such liberty for the defendant or his
alinee C.K. Kemparaju, the impugned judgment cannot be
found fault with. Accordingly, the defendant has not made out
a case to interfere with the impugned judgment.
35. In view of the foregoing discussions, point Nos.(1)
to (3) are answered in the negative.
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Reg. Point No.(4):
36. In view of the finding of this Court on Point Nos. (1)
to (3) as above, the following order is passed:
ORDER
(i) The Appeal dismissed.;
(ii) It is made clear that this Court has not
expressed any opinion with regard to
validity of Ex.D3 - Registered Power of
Attorney or cancellation deed dated
24.11.1998.;
(iii) No order as to costs.
Sd/-
JUDGE
VK
