Karnataka High Court
M/S Apna Sapna vs Sri Mahaboob on 19 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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RFA No. 1213 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 1213 OF 2011 (DEC/INJ)
BETWEEN:
M/S. APNA SAPNA
OFFICE AT NO.85, 3RD FLOOR,
SHARIFF HOUSE, RICHMOND ROAD,
BANGALORE-560 025,
REPRESENTED BY ITS PARTNER
MR. SUBHAY BABERWAL
S/O. LATE SUNIL BABERWAL
AGED ABOUT 28 YEARS
NO. 54314, PRESTIGE FALCON CITY,
KANAKAPURA ROAD
ANJANADRI LAYOUT,
NEAR KONANAKUNTE CROSS,
Digitally signed by
AASEEFA PARVEEN BENGALURU- 560 062.
Location: HIGH
COURT OF
KARNATAKA PRESENT OFFICE ADDRESS AT:
NO. 65-67, SRI. SADGURU COMPLEX
1ST FLOOR, BANNERGHATTA ROAD,
OPP: IIM, BANGALORE- 560 076.
...APPELLANT
(BY SRI. C.M. NAGABHUSHAN, ADVOCATE FOR
SRI. SRIHARI A. V., ADVOCATE)
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RFA No. 1213 of 2011
AND:
1. SRI. MAHABOOB,
S/O. LATE SYED HANIEF
AGED ABOUT 29 YEARS,
R/AT NO.6/2, 31ST CROSS,
TILA NAGAR,
BANGALORE-560 041.
2. SRI. YOGANANDA,
S/O. SRI PAPANNA,
AGED ABOUT 35 YEARS,
R/AT NO.93/94, 5TH MILE,
BELLARY ROAD,
BANGALORE-560 092.
...RESPONDENTS
(BY SMT. PRAMILA NESARAGI, SENIOR COUNSEL FOR
SRI. KARUMBAIAH T.A., ADVOCATE FOR R1 (VC);
V/O. DATED 04.12.2014, NOTICE TO R2 IS HELD SUFFICIENT)
THIS RFA FILED U/SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 23.04.2011 PASSED IN
O.S. No. 201/2008 ON THE FILE OF THE CIVIL JUDGE
(SR. DN.) AND JMFC, ANEKAL, DECREEING THE SUIT FOR THE
DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, DR.H.B.PRABHAKARA SASTRY J., DELIVERED
THE FOLLOWING:
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RFA No. 1213 of 2011
JUDGMENT
The present respondent No.1 as a plaintiff had instituted
a suit against the present appellant and present respondent
No.2 arraigning them as defendants No.1 and 2 in
O.S.No.201/2008 in the Court of Senior Civil Judge and JMFC,
Anekal, (Henceforth for brevity referred to as the 'Trial Court) for
the relief of declaration of his title and for declaration of the
alleged sale deeds, and general power of attorney as not
binding upon him. The suit schedule properties are the
immovable properties. After contest, the said suit came to be
decreed with cost. Aggrieved by the same, defendant No.1 in
the trial Court has preferred this appeal.
2. The summary of case of the plaintiff in the trial
Court was, that one M/S.Bangalore Knitting Private Limited
situated at Sonnanayakanapura Village, Kasaba Hobli, Anekal
Taluk, Bangalore District, was the absolute owner of the suit
schedule properties. They were converted lands from
agricultural to industrial purpose. The said M/S.Bangalore
Knitting Private Limited, on 18.01.1997 passed a Resolution
to sell the suit schedule properties. By passing a necessary
Resolution it had given a general power of attorney
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to one Sri.Lakshminarayan and one Sri.Mahadev to deal with
the properties including right to alienate the same. Those
power of attorney holders of the Company on the basis of
Board Resolution dated 18.01.1997 as well as on the basis of
the power of attorney dated 27.01.1997 executed the sale
deeds in favour of the plaintiff in respect of the suit schedule
properties on 06.01.2007. With this, the plaintiff became the
lawful owner, having purchased the suit schedule properties
and was put in possession of the suit schedule properties. The
plaintiff has further contended that, since the Vendor of the
properties i.e. M/s.Bangalore Knitting Private Limited had not
made use of the properties for the purpose for which it had
purchased the same, the RTCs. pertaining to the land continued
to show it as agricultural lands only. The plaintiff took
necessary steps to get the same corrected and proper entries
are made. Thus, he had perfected the title against the
properties by all means. The defendant No.2 Sri.Yogananda
claiming himself as the Power of Attorney Holder of the
Company, on 22.3.2006 sold the suit schedule properties and
another property bearing Sy.No.3/16 measuring 28 guntas
situated at Adur Village in favour of the defendant No.1 by
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executing two sale deeds, both dated 22.03.2006. Both the
sale deeds came to be registered in the office of the Sub-
Registrar at Anekal. The plaintiff contends that he was not
aware of the sale deeds dated 22.3.2006 on the day when he
purchased the suit schedule property from Sri.Lakshminarayan
and Mahadev. According to plaintiff the general power of
attorney alleged to have been executed in favour of defendant
No.2 Sri.Yogananda was not in existence. Further stating that
based upon the alleged sale deed executed by defendant No.2
in his favour the first defendant attempted to encroach the suit
schedule properties in the third week of September, 2007 and
attempted to dispossess the plaintiff from the possession of the
suit schedule properties and holding that the defendant No.1 is
a stranger to the suit schedule properties, the plaintiff filed a
suit in O.S.No.420/2007 for the relief of perpetual injunction in
the Court of the Civil Judge, (Jr.Dn.), Anekal.
The defendant No.1 appeared and filed its written
statement wherein it disclosed that, it is the absolute owner of
the suit schedule properties having purchased the same under
the sale deeds dated 22.3.2006 and it also produced the copy of the
power of attorney dated 22.06.2006 said to have been executed by
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Mr.Phillippe Gout, Mr.Michel Gout and Mr.Barnard Folichon in
favour of defendant No.2. Since the defendant No.1 came up
with a contention that it is the purchaser of the very same suit
schedule properties earlier to that of the plaintiff, the plaintiff
was in need of seeking appropriate relief of declaration of its
title. As such it withdrew the suit filed by it in O.S.No.420/2007
with a liberty to file a fresh suit on 22.3.2008. It is pursuant to
the same, the plaintiff has filed the present suit i.e. in
O.S.No.201/2008.
3. In response to the summons served upon them,
defendants No.1 and 2 entered their appearance through their
counsels and filed their separate written statements. The
defendant No.1 filed its written statement by way of counter
claim denying the plaint averment and contended that the
defendant No.1 is a Registered Partnership firm and Sri.Sunil
Baberwal is a Managing Partner representing the firm. It
contended that the defendant No.1 Company acquired the suit
schedule properties together with other property under four
sale deeds which are registered documents. It has got the
necessary revenue entries made in its name including getting
the order of conversion of the lands. Thus, it contended that, it
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being the earlier purchaser of the property for valuable
consideration, is the absolute owner in possession of the
property. As such, the subsequent sale deed alleged to have
been executed in favour of the plaintiff by alleged two power of
attorney holders on behalf of M/S.Bangalore Knitting Private
Limited is null and void and not binding upon it. With this, the
defendant No.1 in its counter claim prays for a relief of
declaration that the sale deeds in favour of the plaintiff are null
and void and also sought for a relief of permanent injunction
restraining the plaintiff and anybody claiming through them in
any manner from alienating the property.
4. The defendant No.2 also filed his written statement
in the matter contending that the M/S.Bangalore Knitting
Private Limited represented by its Director had executed a
general power of attorney after passing a Resolution by the
Company in his favour in respect of the suit schedule
properties. The said property was also got converted for a non
agricultural purpose. As a power of attorney he had right to sell
the property. After discharging his function under the general
power of attorney and on fulfillment of the general power of
attorney terms and conditions, he had handed over all the
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papers to the defendant No.1 and the concerned Company. He
also called the suit as bad for non-joinder of all necessary
parties. Thus, he supported the contention of defendant No.1
in his written statement.
5. Based on the pleadings of the parties, the Trial
Court framed the following issues:
(i) Whether the plaintiff proves that he is the
absolute owner of the suit schedule properties?
(ii) Whether the plaintiff proves that he is in
possession and enjoyment of suit schedule properties as
on the date of filing of the suit?
(iii) Whether the plaintiff proves that the sale
deeds dated 22.03.2006 pertaining to suit schedule
properties executed by defendant No.2 are null and
void?
(iv) Whether the plaintiff proves that he is entitled
for declaration and injunction as prayed for?
(v) Whether the plaintiff is entitled for the
alternative relief of possession of the suit schedule
properties as prayed for?
(vi) What Decree or Orders?"
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6. Three witnesses were got examined from the
plaintiff's side as PW.1 to PW.3 and 16 documents were got
marked from Exs.P1 to P16. From the defendant's side, two
witnesses were examined as DW.1 and DW.2 and among whom
defendant No.2 examined himself as DW.1 and Managing
Partner of defendant No.1 Company himself examined as DW.2.
The document from Exs.D1 to Ex.D40 came to be marked.
7. After hearing both sides, the trial Court while
answering issues No.1 to 4 in the affirmative and issue No.5 in
the negative proceeded to decree the suit of the plaintiff as
prayed. It declared that the plaintiff is the absolute owner of
the suit schedule properties having purchased the same under
the sale deed dated 06.01.2007. It declared that the sale deed
dated 22.3.2006 pertaining to the suit schedule properties
alleged to have been executed by defendant No.2 is null and
void. Consequently, the defendants were restrained from
interfering with the plaintiff's peaceful possession and
enjoyment of the suit schedule properties. Aggrieved by the
same, the defendant No.1 in the trial Court has preferred the
present appeal.
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8. Heard the arguments of learned counsel for the
appellant, who in his brief arguments submitted that when
appellant as defendant No.1 had filed a counter claim, the trial
Court was at error in not framing necessary issues on its
counter claim which had deprived the defendant No.1/appellant
from putting forth its evidence in the trial Court. As such, the
matter deserves to be remanded. He further submitted, since
the very framing of the issues are inappropriate, he would not
address his arguments on the main merits of the case.
9. Learned Senior counsel for the respondents who
appearing for his instructing counsel who is the learned counsel
for the contesting respondent No.1 initially contended that the
impugned judgment sustains. However, after going through the
issues framed by the trial Court, she submitted that they would
not object in case if the matter is remanded to the trial Court
with a direction to frame appropriate issues and dispose of the
matter within a time limit prescribed by this Court, as the
original suit is of the year 2008.
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10. In the light of the above, the only point that arises
for our consideration is:
"Whether the impugned judgment
deserves to be set aside and the matter
requires to be remanded to the trial Court for
fresh disposal in accordance with law?"
11. Admittedly, both the present appellant as the first
purchaser of the suit schedule properties and the respondent
No.1 herein who was the plaintiff in the trial Court as a
subsequent purchaser of the very same suit schedule properties
are claiming that they are the owners in possession of the suit
schedule properties. Though both of them are not denying the
fact that the properties earlier was belonging to one
M/S.Bangalore Knitting Private Limited, however, they contend
that the power of attorney holders appointed by the said
Company were different through whom both the plaintiff and
defendant No.1 in the trial Court contend to have purchased
the property for valuable consideration and under the
registered document of sale. Thus, the entire dispute is
revolving upon the very same suit schedule properties, but
under two sets of sale deeds, one favouring the plaintiff and
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another favouring the defendant No.1. Thus, when the plaintiff
approached the trial Court by instituting the suit in
O.S.No.201/2008 seeking the relief of declaration of his title
over the suit schedule properties and also to declare that the
sale deeds executed by the alleged power of attorney in favour
of the defendant No.1 was null and void and sought for a relief
of permanent injunction also, naturally the defendant No.1 who
claims itself to be the original purchaser of the very same
properties filed a detailed written statement in the form of
counter claim in the trial Court. Though the trial Court has
considered the said written statement as a counter claim with
the prayer for some specific relief there under including a
counter relief for declaration and for permanent injunction,
however, the issues framed by it which are extracted above,
are totally silent about the relief sought for by the defendant
No.1. Thus, the issues framed by the trial Court were totally
one sided and confining only to the plaint averment and
simultaneously ignoring the counter claim. When the trial Court
has acknowledged that the defendant No.1 before it had filed
its counter claim seeking certain reliefs against the plaintiff, it
was required by the trial Court to frame the necessary issues
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pertaining to the claim made by the defendant No.1 in its
counter claim. It is only after framing of the relevant issues,
the parties to a litigation would be in a position to lead required
evidence in support of their pleading and the issues framed.
12. In the instant case as observed above, all the 5 + 1
issues framed by the trial Court were mainly concentrating
upon and concerning the averments made in the plaint. Even
after noticing that there was a counter claim filed by the
defendant No.1 before it, it did not frame the necessary and
required issues before proceeding to record evidence led by the
party. Consequently, the entire evidence led by both side are
concerned only to the issues framed by the trial Court which
are plaint based and concentric issues. Though there was
necessary pleading in the form of counter claim by the
defendant No.1, however, due to non framing of the necessary
issues, the defendant No.1 was deprived of an opportunity to
lead his evidence in support of its contention raised in its
counter claim. Consequently, the trial Court after recording the
evidence which were mainly based upon the issues depending
upon the plaint averment proceeded to analyse the same. Resultantly
it answered all the issues No.1 to 4 in the affirmative and
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proceeded to decree the suit. Thus, the mistake crept in the
outcome of the impugned judgment and decree lies in non
framing of the necessary issues by the trial Court. More
particularly with respect to the counter claim filed by the
defendant No.1 before it. As such, though under Order 41 Rule
28, this Court could have framed additional issues and directed
the trial Court to record the evidence and submit the same
before the Court. But the facts and circumstances of the case
shows that, it is the trial Court which has to not only frame the
issues with respect to the counter claim of the defendant No.1,
but also give an opportunity to the parties to lead their
evidence on the issues framed thereupon and the trial Court
itself to proceed to give its finding on those issues. Thus, when
at the threshold itself, the trial Court has committed an error in
not framing necessary issues and has deprived the parties to
lead evidence on the issues which were required to be framed
by it to adjudicate the real question involved in the matter, we
are of the view that the impugned judgment and decree
deserves to be set aside and the matter requires to be remanded
to enable the trial Court to frame the required additional issues and
give opportunity to both side to lead their evidence on the
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additional issues and hear the matter afresh and dispose it of in
accordance with law. However, considering the fact that the
original suit is of the year 2008, as such it is more than 15
years old suit, the trial Court may have to dispose of the matter
after its remand at the earliest. Accordingly, we proceed to
pass the following
ORDER
i) The appeal stands allowed in part.
ii) The impugned judgment and decree dated 23.04.2011
passed by Senior Civil Judge and JMFC, Anekal, in O.S.
No.201/2008 stands set aside.
iii) The matter stands remitted back to the trial Court for
its fresh disposal in accordance with law after framing the
additional issues and giving both side an opportunity to lead
their evidence on the additional issues and in the light of the
observations made above.
iv) Since the original suit from which this appeal has
arisen is of the year 2008, as such the matter is more than 15
years old, the early disposal of the original suit by the trial
Court, but not later than six months from today is highly
appreciated.
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v) The refund of the Court Fee to the appellant to be in
accordance with law, since the matter stands remanded.
vi) In order to avoid any further delay in the matter, both
side parties herein are directed to appear before the trial Court
on 18.03.2024 and participate in the proceedings.
vii) Under the said circumstances, the trial Court need not
issue the fresh summons or notice to the plaintiff and the
defendant No.1 before it, as they are directed to appear before
it on 18.03.2024.
viii) Since, respondent No.2 herein who was the
defendant No.2 in the trial Court has not appeared in this
matter, the trial Court may take appropriate steps to ensure his
appearance/representation in the suit before it.
Sd/-
JUDGE
Sd/-
JUDGE
AP
