Karnataka High Court

Rinny Eapen vs Dr M P Somaprasad on 5 April, 2024

Author: N S Sanjay Gowda

Bench: N S Sanjay Gowda

                                        -1-
                                                    NC: 2024:KHC:14247
                                                   CRP No. 131 of 2024




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 5TH DAY OF APRIL, 2024

                                     BEFORE
                   THE HON'BLE MR JUSTICE N S SANJAY GOWDA
                  CIVIL REVISION PETITION NO. 131 OF 2024 (IO)
            BETWEEN:

            1.    RINNY EAPEN
                  S/O LATE P K EAPEN
                  AGED 73 YEARS
                  NO. 570, 3RD BLOCK
                  KORAMANGALA
                  BENGALURU - 560034
                  (GPA HOLDER RICKY EAPEN)
                                                         ...PETITIONER
            (BY SRI. MANIAN K B S.,ADVOCATE)

            AND:

            1.    DR M P SOMAPRASAD
                  S/I M K PRABHAKARAN
                  AGED 72 YEARS
                  R/AT NO 12, MANTRI ALTIUS
Digitally         NO 17, RAJ BHAVAN ROAD
signed by         BENGALURU - 560051.
KIRAN
KUMAR R
Location:   2.    P G ALEXANDER (SINCE DECEASED)
HIGH
COURT OF          S/O GEORGE
KARNATAKA
                  NO 16, SRINIDHI TEMPLE STREET
                  CHUNCHAGAGHATTA
                  DODDAKALLASANDRA POST
                  BENGALURU - 560062.

            3.    DR R SUBBA RAO
                  S/O DR S V RAMARAO
                  AGED 77 YEARS
                  NO. 1631/1, DHATREE
                  32ND CROSS BSK II STAGE
                               -2-
                                           NC: 2024:KHC:14247
                                          CRP No. 131 of 2024




     BENGALURU - 5600070.

4.   M/S SUSHRUTHA VISHRANTHI DHAMA PVT LTD
     A COMPANY REGISTERED UNDER THE
     COMPANIES ACT
     1956 HAVING ITS REGISTERED OFFICE
     AT NO 202, RASTREEYA VIDYALAYA ROAD
     BASAVANAGUDI - 560004.

    SY NO 18/4, THALAGHATTAPURA
    UTTARAHALLI MANAVARTHE KAVAL
    UTTARAHALLI HOBLI
    BANGALORE SOUTH TALUK
    BANGALORE DISTRICT-560061
    REPRESENTED BY ITS MANAGING DIRECTOR.
                                         ...RESPONDENTS
(BY SRI. SANJAY NAIR., ADVOCATE FOR C/R-1)

      THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 22.01.2024 PASSED ON I.A.NO.3
IN OS.NO.472/2019 ON THE FILE OF THE I ADDITIONAL
SENIOR     CIVIL   JUDGE   BENGALURU       RURAL   DISTRICT,
BENGALURU, REJECTING THE I.A.NO. 3 AND 4 FILED UNDER
ORDER 7 RULE 11(a) AND (d) OF CPC FOR REJECTION OF
PLAINT.


      THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:


                           ORDER

1. The 1st respondent instituted a suit seeking for a

declaration that he is the absolute owner of the suit

schedule property which was the land bearing Old

NC: 2024:KHC:14247

Sy.No.18 (New Sy.No.18/4) measuring 2 acres situate at

Uttarahalli Manavarthe Kaval Village, Uttarahalli Hobli,

Bengaluru South Taluk.

2. He has also sought for a declaration that the three

registered Sale Deeds dated 09.10.2001, 22.12.2001 and

22.12.2001 executed by the 2nd defendant, the alleged

General Power of Attorney holder of the plaintiff in favour

of the 1st defendant were void, invalid, bogus, etc.

3. He has also sought for a declaration that the

subsequent Sale Deed dated 03.10.2005 executed by the

1st defendant in favour of the 4th defendant was void and

ultimately, sought for a direction to the 4th defendant to

hand over vacant and peaceful possession of the suit

schedule property.

4. In a nutshell, a plea of the plaintiff was that he had

never executed a General Power of Attorney in favour of

the 2nd defendant and the 1st defendant had, in collusion

NC: 2024:KHC:14247

with the 2nd defendant, created a General Power of

Attorney and obtained a Sale Deed in his own favour.

5. It was also alleged that the 1st defendant had been

entrusted with the work of getting phodi done of the suit

schedule property and the 1st defendant taking advantage

of plaintiff's absence from 1998 to 2002, had created the

General Power of Attorney in favour of the 2nd defendant

and subsequently, obtained a Sale Deed on the strength of

the said General Power of Attorney.

6. In the said suit, the 1st defendant as well as the 4th

defendant filed applications seeking rejection of plaint on

the ground that on a meaningful reading of the plaint, it

was clear that there was no cause of action. They also

contended that the suit filed in the year 2019 seeking for a

declaration that the Sale Deeds of the year 2001 were null

and void, was hopelessly barred by time.

NC: 2024:KHC:14247

7. The Trial Court, by a common order, has dismissed

both the applications and hence, the 1st defendant is

before this Court by way of this revision petition.

8. Sri K.B.S.Manian, learned counsel for the petitioner

has strenuously contended that the suit for declaration

that the Sale Deeds of the year 2001 were null and void,

was clearly barred by time having regard to the fact that

the said suit was filed only in the year 2019. He also

sought to contend that since fraud was alleged against the

1st defendant, Section 17 of the Limitation Act would stand

attracted and by virtue of the proviso to Section 17, the

sale in favour of the 4th defendant stood automatically

saved and therefore, the suit was not maintainable.

9. He has placed strong reliance on the judgment of the

Madras High Court rendered in the case of APPASWAMY

REAL ESTATES LIMITED VS. NEELAYATHATCHI AMMAL -

2005-3-L.W.152.

NC: 2024:KHC:14247

10. The plaintiff, as already stated above, instituted a

suit seeking for a declaration that he was the owner and

for a declaration that the Sale Deeds executed by the 2nd

defendant, on the strength of an alleged General Power of

Attorney executed by the plaintiff in favour of the 1st

defendant were void and did not confer any title to the 1st

defendant. A further declaration was sought that the

subsequent Sale Deed executed by the 1st defendant in

favour of the 4th defendant was also void.

11. A reading of the plaint would indicate that the

plaintiff contended that he was on friendly terms with the

1st defendant and had engaged his services for the

purposes of getting phodi of Sy.No.18 and in that regard,

he had handed over the original documents along with

Dr.Joseph Lenz Pendanam, who had also handed over his

original documents. The plaint would also indicate that the

plaintiff was in USA from July 1998 till May, 2002 and it

was the specific case of the plaintiff that he had not

executed any General Power of Attorney in favour of the

NC: 2024:KHC:14247

2nd defendant. In fact, the relevant paragraph in the plaint

reads as follows:

"37. On a perusal of the said sale deeds, it is seen that Defendant No.2 P.G.Alexander, alleged to be the gPA Holder of Plaintiff has represented the Plaintiff and executed the said three sale deeds, conveying the suit schedule properties in facour of Defendant No.1. The Plaintiff was shocked at this since at no point of time, Plaintiff had executed any GPA, that too with intent to sell the suit schedule properties in favour of P.G.Alexander or anyone's favour. Further, Plaintiff do not even know who this Mr.Alexander institutions He is a total stranger to Plaintiff. At no point of time, Plaintiff have had any transactions with said Alexander (Defendant No.2) and hence Defendant No.2 had no right or authority to execute sale deeds on behalf of Plaintiff conveying the suit schedule properties in favour of the Defendant No.1, and the alleged General Power of Attorney alleged to have executed by Plaintiff in favour of Defendant no.2 is a gorged fabricated and created one."

12. It is therefore clear that it was the case of the

plaintiff that he had not executed the General Power of

Attorney in favour of the 2nd defendant and as a

NC: 2024:KHC:14247

consequence, the Sale Deed that was executed by the 2nd

defendant in favour of the 1st defendant was null and void.

In my view, if the plaintiff is able to establish that he has

not executed General Power of Attorney in favour of the

2nd defendant, then his prayer for declaration that the Sale

Deed obtained by the 1st defendant on the strength of the

General Power of Attorney would be tenable. This is an

issue which has to be tried and since the averment in the

plaint clearly indicates a cause of action, the plaint cannot

be rejected as being devoid of a cause of action.

13. If it was the case of the plaintiff that he had never

executed the General Power of Attorney, the question of

limitation starting from the date of Sale Deed would never

arise since starting point of limitation would be the date of

discovery of fraud. In paragraph 59 of the plaint, it is

stated as follows:

"59. The Plaintiff was not at all aware about the Documents created by Defendants with respect to the suit schedule properties, till the 1st Week of September, 2018. For the first time, in the First

NC: 2024:KHC:14247

Week of September, 2018, the Plaintiff came to know about the fraudulent acts committed and documents created by Defendants, and immediately he has taken steps to file a complaint and also to file this suit. In view of the fraud played and also the criminal offences committed as stated above by the Defendants and their henchmen and also the execution of Sale Deeds on the basis of legally un- enforceable and forged, created and fabricated documents, all the transactions made by Defendants with respect to suit schedule properties, and are not binding the Plaintiff in any manner. Hence, the suit filed today is within time from the date of knowledge."

14. As could be seen from the above, the plaintiff

averred that he became aware of the fraud only in

September, 2018 and thereafter, he filed the suit in the

year 2019. In this view of the matter, I am of the view

that the argument of the learned counsel for the petitioner

that the plaint did not disclose the cause of action or that

the same would be barred by limitation cannot be

accepted.

- 10 -

NC: 2024:KHC:14247

15. As far as reliance on the judgment of the Madras

High Court cited supra is concerned, in the case decided