Karnataka High Court
Sri M Shashidhar vs H N Lakshmaiah on 1 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 2499 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 2499 OF 2015 (CPC)
BETWEEN:
1. SRI M.SHASHIDHAR
AGED ABOUT 40 YEARS,
S/O SRI. V.MUNIYAPPA,
R/AT NO.54, 4TH CROSS,
5TH MAIN ROAD, 60 FEET ROAD,
OPP. HOYSALA APARTMENT,
BOPASANDRA, BANGALORE-560 094.
...APPELLANT
(BY SRI D.A.SHIVAKUMAR, ADVOCATE)
AND:
1. H.N.LAKSHMAIAH
AGED ABOUT 54 YEARS,
S/O LATE MUNIVENKATAPPA,
Digitally signed
by SHARANYA T 2. SMT.AKKAYAMMA
Location: HIGH AGED ABOUT 41 YEARS,
COURT OF W/O SRI.H.L.LAKSHMAIAH,
KARNATAKA
3. SMT.KALAVATHI
AGED ABOUT 29 YEARS,
D/O SRI.H.N.LAKSHMAIAH,
4. SMT.SHIVAMMA
AGED ABOUT 27 YEARS,
D/O SRI H.N.LAKSHMAIAH,
5. SMT.SUJATHA,
AGED ABOUT 25 YEARS,
D/O SRI.H.N.LAKSHMAIAH,
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MFA No. 2499 of 2015
6. SMT.RANGAMMA
AGED ABOUT 46 YEARS,
D/O LATE MUNIVENKATAPPA,
7. SRI.SREENIVASA
AGED ABOUT 22 YEARS,
S/O SRI.H.N.LAKSHMAIAH,
8. SMT.RATHNAMMA
AGED ABOUT 41 YEARS,
W/O LATE HANUMAIAH,
9. SRI.VENKATESH
AGED ABOUT 26 YEARS,
S/O LATE HANUMAIAH,
10. SMT.DHANALAKSHMI
AGED ABOUT 23 YEARS,
D/O LATE HANUMAIAH,
11. SRI.MAHESHA
AGED ABOUT 22 YEARS,
S/O LATE HANUMAIAH,
ALL ARE RESIDING AT
HUTHANAHALLI VILLAGE,
JALA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE URBAN.
12. SRI MADAIAH
AGED ABOUT 55 YEARS,
S/O SRI.PULAIAH,
R/AT KAMMAGONDANAHALLI,
BEHIND RAMA TEMPLE,
JALAHALLI WEST,
BANGALORE-560 015.
13. SRI.RAJANNA
AGED ABOUT 41 YEARS,
S/O LATE MUNIYAPPA,
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MFA No. 2499 of 2015
R/AT MARANAYAKANAHALLI,
JALA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE-562 157.
...RESPONDENTS
(R1 TO R11 - SERVED UNREPRESENTED;
R12 & R13 SERVICE OF NOTICE IS DISPENSED WITH
VIDE ORDER DATED 26.07.2022)
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DT.09.02.2015 PASSED ON I.A.NO.1 IN
O.S.NO.472/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE,
& JMFC, DEVANAHALLI, ALLOWING I.A.NO.1 FILED U/O 39
RULE 1 & 2 OF CPC.IN TIME.C.F.SUFFICIENT.I.A. 1/15 FOR
T.I.I.A. FILED U/O 39 RULE 1 & 2 R/W SEC.151 OF CPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant.
Inspite of service of notice, respondents did not
choose to appear before this court or to engage the
counsel.
2. The factual matrix of the case of the plaintiff
before the trial court is that they are the owners in
possession of the suit schedule property. The defendant
No.1 entered into an agreement with plaintiffs on
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20.03.2014 for sale consideration amount of
Rs.90,00,000/- and paid advance sale consideration
amount of Rs.42,40,000/-. The defendant No.1 wrongly
paid Rs.15,60,000/- and Rs.8,28,000/- to defendant No.3
who are neither the family members of the plaintiff nor
they are having interest over the suit property. Defendant
No.1 without the knowledge of the plaintiff by playing
fraud, created the alleged General Power of Attorney dated
20.03.2014 and on that basis, he got the sale deed
executed in his favour. The defendants having no manner
of right, title and interest over the property forged and
fabricated the General Power of Attorney. Accordingly,
filed a suit seeking to declare the registered sale deed and
General Power of Attorney in favour of defendant No.1 as
null and void and for permanent injunction restraining the
defendant No.1 from interfering with their peaceful
possession and enjoyment of the suit schedule property.
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3. The defendant No.1 appeared and filed written
statement stating that the plaintiffs are not the owners in
possession of the suit property. The defendant No.2
represented defendant No.1 that he is the agreement
holder in respect of the suit property holding the
agreement of sale dated 17.12.2010 executed by the
plaintiffs and offered to sell the suit property for sale
consideration amount of Rs.67 Lakhs and paid Rs.67 Lakhs
to the plaintiffs, Rs.5 Lakhs to another branch of plaintiffs.
The plaintiffs have voluntarily executed the agreement and
registered General Power of Attorney in his favour. On the
basis of registered General Power of Attorney, the sale
deed has been executed by him in his favour. He became
the absolute owner in possession and enjoyment of the
suit schedule property. The plaintiffs have lost right, title
and interest over the suit property. The plaint does not
disclose any cause of action.
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4. Defendant Nos. 2 and 3 also appeared and filed
written statement contending that the plaintiffs earlier had
entered into an agreement of sale on 17.10.2012 in favour
of defendant No.2 for consideration of Rs.46,40,000/- and
received Rs.3,00,000/- from defendant Nos. 2 and 3. The
defendants No.2 and 3 nominated the defendant No.1 for
execution of sale deed. The plaintiffs have sold the suit
schedule property for Rs.67,00,000/-. The defendants
No.2 and 3 were liable to pay Rs.43,40,000/- on the basis
of the agreement executed by the plaintiffs. The same was
paid by defendant No.1 to the plaintiff. Apart from the
agreed sale consideration amount, the plaintiffs have
received Rs.5,00,000/- from defendant No.2 and receipt of
sale consideration amount and additional amount of
Rs.5,00,000/-, the plaintiffs have voluntarily executed the
registered agreement of sale and registered power of
attorney on 20.03.2014 in favour of defendant No.1 and
delivered the possession of suit schedule property to
defendant No.1. The defendant No.1 obtained the sale
deed on 23.05.2014 on the basis of agreement of sale and
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General Power of Attorney; he became absolute owner in
possession. The plaintiffs are not the owners in
possession. The plaintiffs have not made out a prima facie
case and if injunction is granted, the defendants will be
put to hardship.
5. Both the plaintiffs as well as defendants have
filed I.A.No.4 and 5 under Order 39 Rule 1 & 2 of Code of
Civil Procedure, 1908. The plaintiffs claim the relief of
temporary injunction restraining the defendant No.1 from
interfering with the peaceful possession of the plaintiffs in
respect of the suit schedule property, pending disposal of
the suit.
6. The defendant No.1 inter alia also has sought
the temporary injunction against the plaintiffs restraining
them from interfering with his peaceful possession and
enjoyment of the suit schedule property.
7. The trial court having considered the I.As,
which are pending before the court i.e., I.A.No.1, I.A.No.4
and I.A.No.5 considered the contentions of the respective
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counsel and allowed the I.As. filed by the plaintiffs under
Order 39 Rule 1 and 2 of CPC restraining the defendant
No.1 from interfering with peaceful possession and
enjoyment of the plaintiffs suit schedule property and I.A.
filed by defendant No.1 i.e., appellant herein was
dismissed. So also, other I.A filed under Order 7 Rule 11
of CPC filed by the defendant was dismissed. Being
aggrieved, the appellant who is defendant No.1 before this
court has preferred this Miscellaneous First Appeal
challenging the granting of interim order in favour of the
plaintiffs and rejecting his application.
8. The main contention of the learned counsel
appearing for the appellant before this court is that the
Trial Court committed an error in coming to the conclusion
that the defendant No.1 i.e., appellant herein has not filed
any documents of earlier agreement between the plaintiffs
and defendant Nos.2 and 3. So also, the document of sale
agreement and power of attorney executed by the
plaintiffs as well as defendant Nos.2 and 3. The very
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observation made by the Trial Court is erroneous. He
contends that the Trial Court committed an error in
making an observation in paragraphs 15 & 16 that in the
absence of any documentary proof regarding the very
execution of the document of sale agreement and power of
attorney, which is claimed by the defendant / appellant,
the defendant has not made out a case, but on the other
hand the plaintiffs have made out a case to grant the relief
of injunction and the very approach of the Trial Court is
erroneous.
9. The learned counsel appearing for the appellant
brought to the notice of this court by producing the
documents along with application i.e., memo filed before
the Trial Court in O.S.No.472/2014 dated 10.11.2014
along with list of documents, which have been filed on
10.11.2014 itself, wherein produced the sale deed dated
27.10.1984, to show that the plaintiff is the owner who
have purchased the property and the sale agreement
dated 17.10.2012 executed in favour of defendants No.2
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and 3 and also the confirmation deed dated 19.03.2014
executed in favour of the plaintiffs in respect of the earlier
sale deed dated 27.10.1984 executed by the original
owners. The learned counsel for the appellant also
brought to the notice of this court that the sale agreement
dated 20.03.2014 is executed by the plaintiffs as well as
defendant Nos.2 and 3 and also the General Power of
Attorney dated 20.03.2014 executed by the plaintiffs and
defendant Nos.2 and 3 and based on that power of
attorney, sale deed dated 23.06.2014 came into existence.
He would also submit that a complaint was lodged on
27.06.2014 by defendant No.1 and a copy of the First
Information Report in Crime No.57/2015 and reply notice
and also the notice issued to Deputy Tahsildar, Bangalore
is also produced.
10. The learned counsel while referring to the
memo contends that all the documents are placed before
the trial court, but the trial court made an erroneous
observation that documents are not produced. The learned
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counsel for the appellant would submit that the document
of agreement and also the power of attorney are
registered documents. Defendant Nos.2 and 3 are also the
consenting witnesses for having received the said money
and all the payments are made through Demand Draft and
the recital of the document is also very clear with regard
to earlier there was an agreement in favour of defendant
Nos.2 and 3 executed by the plaintiff and subsequently
including plaintiff as well as defendant Nos.2 and 3
executed the sale agreement and power of attorney and
received the entire sale consideration as agreed and all the
original documents are handed over in favour of the
appellant. The counsel also would submit that the original
sale deed of the year 1984 executed in favour of the
plaintiff is also delivered to the appellant and the Trial
Court fails to take note of this material on record.
11. Having heard the arguments advanced by the
appellant counsel and also taking into consideration that
this court has issued notice against the respondents and
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inspite of the notice being served, they did not choose to
appear before this court. Having perused the impugned
order as well as the memo filed by the appellant counsel
dated 10.11.2014 and also the list of documents, it is clear
that all the documents from 1984 and also the agreement
in favour of defendant Nos.2 and 3 dated 17.10.2012 and
also the confirmation deeds executed by the original
owners in favour of the plaintiff filed confirmation deed
dated 19.03.2014 and so also the sale agreement in
favour of the appellant dated 20.03.2014, which was the
registered document and General Power of Attorney dated
20.03.2014 also registered document are placed before
this court. The Trial Court while considering the material
on record has failed to take note of the sale deed dated
23.06.2014, which came into existence consequent upon
the sale agreement dated 20.03.2014 and 20.03.2014
General Power of Attorney and the observation is made in
the order impugned at page 15 that said recitals as on the
date of execution of aforesaid registered agreement of sale
dated 20.03.2014 is in favour of defendant No.1. The
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plaintiffs have not executed any agreement in favour of
any persons in respect of the suit schedule property. The
said observation made by the Trial Court is erroneous.
12. Since, the appellant has produced the
document of sale agreement entered into between the
original plaintiff and also defendant Nos.2 and 3 dated
17.12.2012 and also fails to take note of the fact that
subsequently, including the plaintiff and defendant Nos.2
and 3 have also entered into an agreement of sale with
defendant No.1 and also executed the power of attorney
and they are the consenting witnesses to the document
executed by defendant Nos.2 and 3 along with the
plaintiffs, the Trial Court made an observation that prima
facie there was an agreement of sale dated 17.10.2012 in
favour of defendant No.2 executed by the plaintiffs for sale
consideration for an amount of Rs.46,00,000/- and
payment of Rs.3,00,000/- to the plaintiff under the
agreement appears to be without any material. The very
document has not been considered. It is also observed
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that the above said agreement was executed by the
plaintiffs in favour of defendant No.2, it must have been
stated in registered agreement executed by the plaintiff on
23.04.2014 in favour of defendant No.1. That apart,
defendant No.2 and 3 who are claiming to be the earlier
agreement holders executed by the plaintiff have not
produced the alleged agreement of sale deed dated
17.10.2012 and the said observation is also erroneous
since, the plaintiff has produced the document along with
memo and also it is mentioned that there is no explanation
for non production of sale document. The said
observation is also erroneous since, the appellant counsel
has placed the memo and also the list of documents which
have been produced before the trial court. The Trial Court
proceeded by drawing an inference is that no such
agreement of sale in favour of defendant Nos. 2 and 3
dated 17.10.2012 and the said observation is erroneous
and when the document was executed along with the
defendant Nos.2 and 3 by the plaintiff in favour of
defendant No.1 and defendant No.1 claims that even
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though the plaintiffs had also executed the document in
favour of the plaintiff in terms of registered sale
agreement and registered power of attorney and the
same has not been considered by the Trial Court with
regard to the very execution of document of registered
document. When the prima facie document of sale
agreement and power of attorney is executed in favour of
defendant No.1, even though it is disputed the registered
General Power of Attorney on the observation that it is a
matter of trial is erroneous.
13. The court while granting the relief of temporary
injunction has to see the prima facie documents and when
prima facie there is a sale agreement and also registered
power of attorney and also there are recitals for having
made the payment in favour of defendant Nos.2 and 3 to
the tune of Rs.15,60,000/- and also an amount of
Rs.8,28,000/- and the same is paid by way of Demand
Draft under the document of sale of agreement and power
of attorney, the Trial Court ought not to have disbelieved
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the case of defendant No.1 and arriving at a conclusion
that the registered document is disputed by the plaintiffs
and also the defendant Nos.2 and 3 have categorically
pleaded in the written statement that there was an
agreement between them and also the original plaintiff
and also payments are made by the defendant No.1 in
favour of plaintiff consequent upon agreement of sale and
also the power of attorney and defendant Nos.2 and 3
have not disputed the payment and also the agreement.
Under such circumstances, the Trial Court ought not to
have disbelieved the case of the appellant and committed
an error in dismissing the application filed by defendant
No.1 and committed an error in granting the relief in
favour of the plaintiff even though registered document is
placed before the Trial Court.
14. The observation made by the Trial Court that
those documents are not placed before the court is
erroneous and the documents of memo as well as the list
of documents and also certified copies are obtained from
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the Trial Court, which is evident that the defendant No.1
filed the memo before the Trial Court on 10.11.2014. The
certified copy has been obtained from the Trial Court and
the said list of document is also dated 10.11.2014 i.e., the
date of memo dated 10.11.2014 also and the appellant
also obtained the certified copy of sale agreement of 2012
from the Trial Court and so also the General Power of
Attorney and the sale agreement and all these documents
are certified copies obtained from the Trial Court. Hence, it
is clear that all the documents are placed before the trial
court, but the Trial Court failed to consider those
documents and erroneously proceeded to pass the
impugned order and hence, it requires interference. In
view of the discussions made above, I pass the following
ORDER
(i) The appeal is allowed.
(ii) The impugned order passed on I.A.No.1
is hereby set aside.
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(iii) I.A.No.5 filed by the appellant /
defendant No.1 is allowed and granted
the relief as sought.
Sd/-
JUDGE
SS
