Smt Asha vs Sri G M Virupakshappa
2023 Latest Caselaw 6572 Kant

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                                                         NC: 2023:KHC:33930
                                                       RSA No. 1138 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 19TH DAY OF SEPTEMBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                   REGULAR SECOND APPEAL NO. 1138 OF 2019 (DEC/INJ)

                   BETWEEN:

                   1.    SMT. ASHA
                         W/O PRADEEP KUMAR
                         AGED ABOUT 34 YEARS,
                         R/AT NUGGIHALLI VILALGE,
                         CHANNAGIRI TALUK,
                         DAVANAGERE DISTRICT.
                                                               ...APPELLANT

                              (BY SRI SACHIDANANDA K., ADVOCATE)
                   AND:

                   1.    SRI G.M.VIRUPAKSHAPPA
                         S/O MAHESHWARAPPA
Digitally signed         AGED ABOUT 48 YEARS
by SHARANYA T            REAL ESTATE BUSINESS,
Location: HIGH
COURT OF                 R/AT NO.1778/9,
KARNATAKA                VINAYAKA EXTENSIN,
                         VIDYA NAGAR,
                         DAVANGERE CITY.

                   2.    SRI R.D.LINGARAJU
                         S/O K.R. DANAPPA
                         MAJOR,
                         R/AT K.B. EXTESNION,
                         NEAR KAVERAMMA SCHOOL,
                         DAVANGERE CITY.
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                                        NC: 2023:KHC:33930
                                     RSA No. 1138 of 2019




3.   SRI B.S.REVANASIDDAPPA
     S/O LATE S.SIDDAPPA, MAJOR
     R/O HIREMEGALAGERE AT POST,
     HARAPANAHALLI TALUK,
     DAVANAGERE DISTRICT.
                                           ...RESPONDENTS

     THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMETN AND DECREE DATED 18.02.2019
PASSED IN R.A.NO.87/2018 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANAGERE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMETN
AND DECREE DATED 04.06.2018 PASSED IN O.S.NO.136/2011
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, DAVANAGERE.

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

This matter is listed for admission. Heard the

learned counsel for appellants.

2. The factual matrix of the case of the plaintiff

before the Trial Court that power of attorney dated

13.11.2006 in respect of the suit schedule property is

obtained by playing fraud on her and also sale deed dated

15.02.2008 was executed by defendant No.1 based on

that power of attorney in favour of defendant No.2 and 3

are null and void and not binding on her and she is in

NC: 2023:KHC:33930 RSA No. 1138 of 2019

possession of the suit schedule property and entitled for

permanent injunction.

3. The defendants have appeared and filed written

statement contending that the very suit itself barred by

limitation and the defendant No.1 is a real estate broker

and investor and he had purchased the suit schedule

property from plaintiff through power of attorney dated

13.11.2006. It is the contention of the defendant No.3

that defendant No.1 had purchased the property through

power of attorney as he did not want to waste his money

on the sale deed. Hence, the Trial Court has also framed

the issues in view of the pleadings of the plaintiff as well

as the defendant and allowed the parties to lead evidence.

4. The plaintiff has examined herself as PW1 and

got marked Ex.P1 to Ex.P7 and also examined two other

witnesses as PW2 and PW3. The defendant No.1 has also

examined himself as DW1 and defendant No.3 examined

himself as DW3 and got marked Ex.D1 to Ex.D14. The

Trial Court having considered the both oral and

documentary evidence, disbelieved the case of the plaintiff

NC: 2023:KHC:33930 RSA No. 1138 of 2019

and accepted the case of the defendant and also comes to

the conclusion that the suit is barred by law of limitation

and dismissed the suit.

5. Being aggrieved by the judgment and decree of

the Trial Court an appeal is filed before the First Appellate

Court in RA No.87/2018 and the appellate Court

considering the grounds urged in the appeal, formulated

the points as whether the plaintiff proves that the 1st

defendant has got registered the power of attorney dated

13.11.2006 in respect of suit schedule property by playing

fraud on her, whether the suit is barred by law of

limitation, whether the suit is maintainable for declaration

without possession and also considered the application

filed under Order 41 Rule 27 of CPC, whether the

judgment and decree of the Trial Court requires

interference as the same is illegal, perverse and liable to

be set aside.

6. The First Appellate Court on re-appreciation both

oral and documentary evidence comes to the conclusion

that the plaintiff has not proved the fraud as contended in

NC: 2023:KHC:33930 RSA No. 1138 of 2019

the plaint and also confirmed the finding of the Trial Court

that the suit is barred by law of limitation and dismissed

the appeal. Hence, the present second appeal is filed

before this Court.

7. The main contention of the counsel appearing for

appellants in this appeal that both the Courts have

committed an error in dismissing the suit as well as the

appeal without looking into the materials available on

record. Hence, it requires to admit and frame substantial

question of law.

8. The counsel for appellants has also vehemently

contend that both the Courts have fail to appreciate the

evidence of defendant No.1 who admitted that he has paid

an amount of Rs.46,000/- and got executed the general

power of attorney marked at Ex.P1. Further defendant

No.1 had admitted that as he had no intention to retain

the property and intended to sell the same to third party,

hence, he got the general power of attorney executed. In

spite of this the admission also given and also played the

NC: 2023:KHC:33930 RSA No. 1138 of 2019

fraud in getting the documents, both the Courts are not

considered the same.

9. Heard the counsel for the appellants and also

perused the pleadings of the parties. It is the case of the

plaintiff that power of attorney dated 13.11.2006 obtained

by playing fraud and when the plaintiff took the specific

contention that the same is obtained by fraud and he has

to prove the same by placing sufficient material before the

Court. No doubt he has examined two witnesses as PW2

and PW3. The fact that he has signed the document of

power of attorney is not in dispute and only contention

that the defendant No.1 has played the fraud and

obtained the signature.

10. The fact that the defendant No.1 has sold the

property in favour of the defendant No. 2 is not in dispute.

The power of attorney dated 13.11.2006 and the sale was

executed in the year 2002 in favour of defendant No.2.

The suit was filed in the year 2011. During cross-

examination of PW1, he admitted that he was having two

years time to cancel the document marked at Ex.P2, but

NC: 2023:KHC:33930 RSA No. 1138 of 2019

he did not cancel the same. There was a suggestion about

the financial necessity to PW2 approaching DW1 with the

help of PW3 and the negotiations are taken place between

them. The same is also taken note of by the Trial Court in

paragraph No.14. Though contend that signature was

obtained by fraud and the same has not been proved and

the plaintiff herself admitted that she used to sign the

documents after understanding the contents of the

document and also there was no explanation given as to

why the plaintiff has approached the defendant No.1 to

repay the loan in 2010, when loan agreed to pay within 3

years from 2006 and taken note of the said fact in

paragraph No.15 of the judgment of the Trial Court also.

Hence, answered the issue No.1 as negative that the

plaintiff has not proved the same.

11. The First Appellate Court has also considering

both oral and documentary evidence available on record

particularly oral evidence of the PW1 and PW2 that the

plaintiff was in need of money and PW2 has taken the

plaintiff near the 1st defendant and introduced her. This

NC: 2023:KHC:33930 RSA No. 1138 of 2019

fact was also admitted by the defendants in paragraph

No.8 of the written statement and appreciated both

pleadings as well as both oral and documentary evidence

and also taken note of answer given by PW3 in paragraph

No.23 and also the plaintiff was aware of the transaction

which was taken place between the parties and the PW1

was also aware of the same. The same is also considered

in paragraph No.24 of the judgment of the appellate

Court. In paragraph No.25 of the judgment taken note of

the contents of the document marked at Ex.P1 which

depicts that the plaintiff authorized the 1st defendant to

sell the suit property for valid consideration in favour of

the others.

12. Though the document Ex.P1 does not disclose

the payment of consideration. But the defendant No.1 has

executed the Ex.D2 by accepting the sale consideration of

an amount of Rs.46,000/- from the 1st defendant. Taking

into note of both oral and documentary evidence and

considered the document at Ex.P1, the same is deed of

power of attorney wherein the power was given to the

NC: 2023:KHC:33930 RSA No. 1138 of 2019

defendant No.1 to sell the property. The First Appellate

Court has also taken note of the evidence available on

records, comes to the conclusion that fraud has not been

proved.

13. The very contention of the counsel in this

appeal also that both the Courts have erred in dismissing

the suit as well as the appeal and having considered the

material available on record, I have already pointed out

that no dispute with regard to the execution of power of

attorney, but only contention was taken that by fraud the

same was obtained, but the same was of the year 2006

and sale was made in the year 2008 and the suit was filed

in the year 2011 and the fraud has not been proved by the

plaintiff.

14. Both the Courts have taken note of the material

available on record. I do not find any error committed by

the Trial Court as well as the First Appellate Court in

appreciation of both oral and documentary evidence and in

the absence of playing of the fraud, question of interfering

to exercise the power under Section 100 of CPC does not

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NC: 2023:KHC:33930 RSA No. 1138 of 2019

arise. Hence, I do not find any ground to admit the appeal

and to frame the substantial question of law.

In view of the above discussions, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

RHS