Karnataka High Court
Munivenkatappa vs Smt Rathna B on 25 September, 2023
Bench: H.P.Sandesh
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RSA No. 517 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 517 OF 2021 (DEC/INJ)
BETWEEN:
1. MUNIVENKATAPPA
AGED ABOUT 52 YEARS
S/O. LATE HANUMAPPA
R/AT CHINNAPURA VILLAGE
VOKKALERI HOBLI
KOLAR TALUK
KOLAR DISTRICT-563 101.
...APPELLANT
(BY SRI K. SHRIHARI, ADVOCATE)
AND:
1. SMT. RATHNA B.,
AGED ABOUT 72 YEARS
W/O. ASHWATHNARAYANA
Digitally signed
by SHARANYA T D/O. K.R.BYRAPPA
Location: HIGH R/AT NO.742/25,
COURT OF 5TH 'A' MAIN ROAD
KARNATAKA
1ST PHASE, 1ST STAGE
GOKUL EXTENSION
MATHIKERE
BENGALURU-560 054.
2. SMT. B. PADMA
AGED ABOUT 67 YEARS
W/O. CHANDRE GOWDA
D/O. K.R. BYRAPPA
R/AT DODDA KOGILA HALLI VILLAGE
BEGUR POST, HOSKOTE TALUK
BENGALURU RURAL DISTRICT-561 201.
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3. SMT. K.B. INDIRA
AGED ABOUT 52 YEARS
W/O. NARAYANASWAMY
D/O. K.R. BYRAPPA
R/AT NO.F-269, 9TH MAIN CROSS
SHANKARA NAGAR
BENGALURU-560 002.
4. K.B. MARKONDEYA
AGED ABOUT 65 YEARS
S/O. LARE K.R.BYRAPPA
R/AT NO.1208-1209
4TH MAIN, RAJAJINAGARA
BENGALURU-560 010.
5. SMT. K.B. UMADEVI
AGED ABOUT 55 YEARS
W/O. MANJUNATH REDDY
D/O. K.R. BYRAPPA
R/AT NO.2460, 13TH MAIN
SAHAKARA NAGAR
BENGALURU-560 002.
6. SMT. MUNIYAMMA
AGED ABOUT 55 YEARS
W/O. LATE CHOWDAPPA
D/O. LATE HANUMAPPA
R/AT MARACHANADANAHALLI VILLAGE
NANDAGUDI HOBLI, HOSKOTE TALUK
BENGALURU RURAL DISTRICT-561 201.
7. SMT. YASHODAMMA
AGED ABOUT 50 YEARS
D/O. LATE HANUMAPPA
R/AT CHINNAPURA VILLAGE
VOKKALERI HOBLI
KOLAR TALUK
KOLAR DISTRICT-563 101.
...RESPONDENTS
(BY SRI PRAKASH R.B., ADVOCATE C/R1 TO R5;
R6 AND R7 ARE SERVED)
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RSA No. 517 of 2021
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 01.02.2021 PASSED IN
R.A.NO.11/2019 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE AND JMFC, KOLAR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 21.12.2018
PASSED IN O.S.NO.759/2008 ON THE FILE OF THE II
ADDITIONAL CIVIL JUDGE AND JMFC, KOLAR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant and learned counsel for the
respondents.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that Sy.No.18 measuring 4 acres, 26 guntas is
the ancestral property of the plaintiff. The brother of the
plaintiff by name Venkataramanappa was having half share in
the said property. The said Venkataramanappa and his son
C.V. Rame Gowda sold an extent of 2 acres, 20 guntas in
favour of defendant No.2 under the registered sale deed for
valuable sale consideration. The plaintiff has not sold remaining
half share in Sy.No.18. As such, the plaintiff is in peaceful
possession and enjoyment of the said property from his
ancestors. The katha of the said property has also been
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mutated into the name of the plaintiff. It is also contended that
one Erappa had filed a suit in O.S.No.402/1993 against the
brother of plaintiff, defendant No.2 and plaintiff for declaration
of title and for permanent injunction. The said suit came to be
dismissed with a finding that the plaintiff is an absolute owner
of the suit schedule property out of 4.26 acres. Such being the
state of affairs, defendant No.1, who is the son of defendant
No.2, colluded with each other, created some forged documents
in respect of the suit schedule property and executed a
registered sale deed in favour of defendant No.1. Hence, the
plaintiff had filed a private complaint under Section 200 of
Cr.P.C. for the offences punishable under Section 419, 420, 468
read with Section 34 of IPC in PCR No.105/2008. It is also
contended that defendants have no manner of right, title or
possession over the suit schedule property and only on the
basis of forged documents, the defendants are making hectic
attempts to dispossess the plaintiffs from the suit schedule
property. Hence, filed the suit for the relief of declaration and
permanent injunction.
3. In pursuance of the suit summons, the defendants
appeared and filed the written statement denying the entire
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averments and not denied the fact that suit schedule Sy.No.18,
totally measuring 4 acres, 26 guntas, out of which 2 acres, 20
guntas originally belongs to one Venkataramanappa, S/o.
Ramegowda and the remaining 1 acre, 24 guntas belongs to
the plaintiff. The said Venkataramanappa sold his 2 acres, 20
guntas to the defendant No.2 under a registered sale deed
dated 04.06.1993 for Rs.38,000/-. Subsequently, the plaintiff
also agreed to sell his 1 acre, 34 guntas of land to the
defendant No.2 for the same amount and received part
consideration amount of Rs.10,000/- and agreed to execute the
sale deed by receiving balance amount of Rs.28,000/- at the
time of registration. But, one Erappa, S/o. Nanjundappa had
filed a suit in O.S.No.402/1993 for declaration of title and
permanent injunction and the said suit came to be dismissed.
It is also contended that plaintiff had agreed to sell the
property immediately after conclusion of the final proceedings,
but he avoided to execute the sale deed and demanded more
money from the defendant No.2. After settlement, the plaintiff
agreed to execute the sale deed for a total sum of
Rs.2,50,000/- for which he has received full consideration
amount and executed a general power of attorney ('GPA' for
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short) dated 10.04.2006 in favour of defendant No.2. On the
basis of the said GPA, the defendant No.2 executed a registered
sale deed dated 22.12.2007 in favour of defendant No.1 for the
total extent of 4 acres, 26 guntas in Sy.No.18. Accordingly, the
defendants are in possession of the suit schedule property.
4. Based on the pleadings of the parties, the Trial
Court has framed the issues and allowed the parties to lead
evidence and the GPA holder of the plaintiff has been examined
as P.W.1 and also examined two more witnesses as P.Ws.2 and
3 and got marked the documents as Exs.P1 to P13. The
defendants examined the defendant No.1 as D.W.1 and got
marked the documents as Exs.D1 to D60.
5. The Trial Court, having considered both oral and
documentary evidence placed on record, comes to the
conclusion that the plaintiff is the absolute owner in possession
and enjoyment and the defendants are interfering with the
possession of the plaintiff and answered issue No.3 as
'negative', in coming to the conclusion that defendants failed to
prove the execution of very GPA by the plaintiff and dismissed
the suit.
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6. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed in R.A.No.11/2019. The First
Appellate Court, having considered the grounds urged in the
appeal memo and also the arguments, formulated the point
whether the Trial Court committed an error in coming to the
conclusion that the plaintiff is the absolute owner and the
defendants are interfering with the possession of the suit
schedule property and the very finding of the Trial Court is
erroneous and whether the defendants have proved the very
execution of power of attorney. The First Appellate Court,
having considered the material on record, answered point
Nos.1 and 2 as 'affirmative' in coming to the conclusion that the
Trial Court has not committed any error and the plaintiff is the
absolute owner and also answered point Nos.3 and 4 as
'negative' and concurred with the finding of the Trial Court.
Being aggrieved by the judgment and decree of the Trial Court
and the First Appellate Court, the present second appeal is filed
before this Court.
7. Learned counsel for the appellant would vehemently
contend that the Trial Court committed an error in accepting
the documents of Exs.P9 and P10 even though authors have
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not been examined before the Trial Court and those documents
are issued in favour of the police during the course of
investigation and the plaintiff ought to have examined the
authors and if the same would have been done, the appellant
would have got the right to cross-examine the witnesses. In the
absence of the evidence of the authors of document of Exs.P9
and P10, the Trial Court committed an error in accepting the
document of Exs.P9 and P10. The counsel also would
vehemently contend that both the Courts have committed an
error in relying upon incomplete document of Ex.P9 and Ex.P10
and in the absence of authors of said documents being
examined and the GPA and the affidavit in support of the GPA
are revocable in nature. Learned counsel for the appellant
would further contend that plaintiff has not been examined
before the Court and the GPA given in favour of P.W.1 and he
was having acquaintance with the facts of the case and his
evidence cannot be relied upon by the Trial Court and the First
Appellate Court. Learned counsel for the appellant would
vehemently contend that though the respondents ought to have
sought for the relief of declaration that the sale deed executed
by the GPA holder is null and void and no such relief is sought.
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Hence, this Court has to admit the appeal and frame
substantial question of law.
8. Per contra, learned counsel for the respondents
would vehemently contend that there is no dispute with regard
to the fact that property belongs to joint family and also no
dispute with regard to the fact that other portion was sold but,
in respect of the suit schedule property is concerned, no
document was executed and the document of GPA was created
and based on the created GPA, obtained the sale deed. Both
the Courts have taken note of very issuance of stamp paper by
the bank dated 13.11.2007 and alleged GPA is of the year 2006
and taken note of issuance of the stamp paper and also
registration of the criminal case in C.C.No.820/2013 and the
same is admitted in the cross-examination of D.W.1 and also
D.W.4 and both of them are facing criminal trial and D.W.6 has
also categorically admitted with regard to filing of criminal case
by the deceased plaintiff regarding forging of document of
Exs.D8 and D9. The counsel also brought to notice of this Court
that the Trial Court in Para Nos.21 to 24 in detail discussed with
regard to the document of Exs.P8, P9 and Ex.P10 and also the
document of Exs.D8 and D9 and not committed any error and
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the First Appellate Court also re-appreciated both oral and
documentary evidence placed on record and confirmed the
judgment of the Trial Court. Learned counsel for the
respondents also submits that P.W.1 is none other than the
cousin of the plaintiff and the same is stated in the GPA, which
is marked as Ex.P1 and he was having the knowledge and
through him only all other documents are marked. The counsel
also would submit that relationship is mentioned in the GPA and
he is having the knowledge about the same. The counsel would
further contend that even as on the date of execution of the
alleged GPA, very property was not in existence and the
document of sale deed is executed, based on the forged
document. Hence, there is no need to seek for the relief of
declaration when the said sale deed is not a valid document.
Hence, it does not require any interference.
9. Having heard the learned counsel for the appellant
and learned counsel for the respondents and also on perusal of
the material on record, it is the case of the plaintiff that suit
schedule property bearing Sy.No.18 is totally measuring 4
acres, 26 guntas situated at Chinnapura Village, Vakkaleri
Hobli, Kolar Taluk and the property sold is to the extent of 2
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acres, 20 guntas and in respect of the remaining extent of 1
acre, 24 guntas, the very contention of the plaintiff is that he
had not executed the power of attorney. It is not in dispute
that based on the power of attorney, sale deed was executed
and relationship between the defendant Nos.1 and 2 is not in
dispute as father. It is the very contention of the defendants
that the plaintiff has executed the GPA in favour of the
defendants by receiving consideration amount on 10.04.2006
and the same is disputed. It is also contended that when the
complaint was given, the plaintiff came to know about the
forgery and the matter is under investigation and case is
registered in C.C.No.820/2013 and the same is also admitted
by the defendants' witness before the Trial Court and the same
is also considered by the Trial Court while re-appreciating the
material on record.
10. The Trial Court has also taken note of the admission
given by D.W.1 in the cross-examination that the property is
totally measuring to an extent of 4 acres, 26 guntas and also
admitted that suit schedule property belongs to the plaintiff and
also taken note of the documents which have been relied upon
and the very disputed document of Exs.P9 and P10 are the
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documents issued by the bank in favour of the police during the
course of the investigation and based on the said documents,
the police have registered criminal case and investigated the
matter and now, the defendants are facing criminal trial.
11. No doubt, the author of the document Exs.P9 and
P10 has not been examined, who is the Manager of State Bank
of Mysore, Cottonpet Branch, Ex.P9 is a certified copy of vault
register of the bank and Ex.P10 is a letter dated 21.11.2012. It
is the main contention of the plaintiff that in Ex.P10, it is
clearly recited that stamp paper Nos.755790 to 755792 are not
issued on 10.04.2006 and in Ex.P9 also, it is recited that paper
Nos.790 to 792 are issued to one Byrappa on 13.11.2007. The
averments of Ex.P10 completely supported the averments of
certified copy of vault register of State Bank of Mysore i.e.,
Ex.P9 and as on the date of the execution of document of
Exs.D8 and D9, very stamp paper was not issued by the Bank
and the same was taken note. When such being the case, a
criminal case is registered against the defendants and the
defendants are facing trial and even though the author has not
been examined, the document of Ex.P10 i.e., the letter is
issued by the Manager of the Bank and based on the same,
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criminal case is initiated. When the very execution of GPA is
disputed and criminal case is initiated, I do not find any error
committed by the Trial Court and the First Appellate Court in
accepting the document of Exs.P9 and P10 and based on the
document of Exs.D8 and D9, case is registered for forging the
documents and fact finding was given by both the Trial Court
and the First Appellate Court.
12. Further, when the suit is filed for the relief of
declaration to declare that the plaintiff is the absolute owner
and he had not executed any document and also when the
defendants plead that there was sale deed in their favour based
on the GPA and also the documents which have been relied
upon before the Court i.e., Exs.P9 and P10 i.e., vault register
and the letter issued by the bank itself that stamp papers are
issued in 2007, the question of executing GPA in the year 2006
by the plaintiff does not arise and so also criminal proceedings
are initiated against the defendants for alleged forgery and the
same is pending for consideration and when the very document
of GPA is denied, there is no need to seek for declaration that
the sale deed is null and void and it is contended that the
alleged document is executed on a concocted stamp paper.
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Hence, the submission of the learned counsel for the
respondents cannot be accepted and the very contention of the
respondents that the appellant ought to have sought for the
relief of declaration to declare that the sale deed is null and
void does not arise, since the very document of sale deed is
disputed and only on the strength of GPA only, the alleged sale
deed is executed. Therefore, I do not find any ground to admit
the appeal and frame substantial question of law.
Accordingly, the appeal is dismissed. In view of dismissal
of the appeal, I.As, if any do not survive for consideration and
the same stand disposed of.
Sd/-
JUDGE
ST
