Karnataka High Court
Smt. C H Rajeshwari vs Sri. G Krishnappa on 12 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 8577 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.8577 OF 2023 (CPC)
BETWEEN:
1. SMT. C H RAJESHWARI
AGED ABOUT 40 YEARS
W/O K NARAYANA SWAMY
2. K NARAYANA SWAMY
AGED ABOUT 39 YEARS,
S/O SRI KEMPAIAH
BOTH ARE R/AT NO. 43, 4TH MAIN
2ND BLOCK, OPP. VIDYAVERDHAKA COLLEGE,
3RD STAGE, BASAVESHWARA NAGAR,
BENGALURU-560079.
...APPELLANTS
(BY SRI M SHIVAPRAKASH, ADVOCATE)
AND:
Digitally signed
by SHARANYA T
Location: HIGH SRI. G KRISHNAPPA
COURT OF
KARNATAKA AGED ABOUT 55 YEARS
S/O SRI GANGA SIDDAIAH
R/AT KEMPAPURA AGRAHARA VILLAGE
AREBOMMANAHALLI POST
THYAMAGONDALU HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562123.
...RESPONDENT
(BY SRI DHANANJAY V JOSHI, SR. ADVOCATE FOR
SRI S SRIKANTH, ADVOCATE)
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MFA No. 8577 of 2023
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT.08.11.2023 PASSED ON IA NO.1
AND II IN O.S.NO.1742/2020 ON THE FILE OF THE XLII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the
respective parties.
being aggrieved by the order of the Trial Court passed on
I.A.Nos.1 and 2 by allowing of I.A.Nos.1 and 2 under
Section 39 Rule 1 and 2 of CPC by restraining the
defendant Nos.5 and 6 from interfering with the peaceful
possession of the suit schedule property and also
alienating the suit schedule property to anyone.
3. The factual matrix of the case of the plaintiff
before the Trial Court that the property originally belongs
to one K.Thimmaiah and the said property bearing site
No.72 was carved out of Sy.No.68. The original owner
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K.Thimmaiah had executed the registered power of
attorney on 10.06.1996 in favour of one Ramamani. The
said Ramamani had executed the sale deed in favour of
her husband i.e., the plaintiff on 30.07.2010. It is also the
case of the plaintiff that there is a mistake in mentioning
the description of the boundaries, hence, Rectification
Deed was also executed on 18.06.2019. It is also the case
of the plaintiff that since from the date of execution of the
power of attorney, the power of attorney holder has been
given in possession and the said GPA is the registered
document and the same are irrecoverable GPA. When the
possession was delivered in favour of the power of
attorney holder, the power of attorney holder in turn
executed the sale deed in favour of her husband i.e., the
plaintiff . Hence, the said document clearly discloses that
the plaintiff is in possession of his property. Based on the
title of the power of attorney, sale deed and rectification
deed the plaintiff sought for the relief of declaration since
the sale deed was created on 15.05.2019 by defendant
Nos.3 and 4 in favour of defendant Nos.5 and 6 that is the
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appellants herein. Thus, very execution of the sale deed
dated 15.05.2019 is null and void and the same will not
convey any title in favour of the defendant Nos.5 and 6.
The plaintiff also filed the application inter alia seeking the
relief of temporary injunction from interfering with his
peaceful possession over the suit schedule property in
terms of I.A.No.1. The Trial Court having considered the
pleadings of the parties and also considering the material
available on record comes to the conclusion that original
owner has executed the registered power of attorney
hence, the same is irrecoverable power of attorneys which
coupled with the interest. The power of attorney holder
had executed the sale deed in favour of the plaintiff and
the plaintiff is in possession of his suit schedule property
and granted the relief of temporary injunction in favour of
the plaintiff. Being aggrieved by the said impugned order,
the appellants have filed the present appeal.
4. The learned counsel for the appellants would
vehemently contend that the Trial Court comes to the
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conclusion that these issues are triable issues and both of
them claiming in respect of the very same site number
and the alleged possession of the suit schedule property
was not delivered under GPA and affidavit hence, the Trial
Court erroneously recorded the reasoning in the impugned
order stating that the possession delivered under the
registered GPA and affidavit. The Trial Court ought not to
have comes to the conclusion that the plaintiff is in
possession and the said conclusion is nothing but an
assumption and presumption and hence, it requires
interference.
5. Per contra, the learned counsel appearing for
the respondent/plaintiff would vehemently contend that
the appellants have not challenged the very execution of
the GPA and also not challenged the earlier sale deed
executed in favour of the plaintiff. When they have not
filed any suit for cancellation of earlier sale deed and
questioning the validity of the GPA, now, they cannot
contend that defendant Nos.3 and 4 have executed the
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document who are none other than the children of
Thimmaiah. The counsel also submits that when the very
owner of the property had executed registered GPA, now,
they cannot contend that possession has not been given
but in terms of the power of attorney, possession also
delivered to the power of attorney holder who in turn
delivered the possession in favour of the plaintiff.
6. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
available on record it is not in dispute that the property
was originally belongs to one Thimmaiah. It is also not in
dispute that in Sy.No.68, site No.72 was formed and
defendant Nos.5 and 6 are also claiming the title and
interest based on the sale deed dated 15.05.2019 which
has been executed by defendant Nos.3 and 4. It is not in
dispute that defendant Nos.3 and 4 are the children of
original owner Thimmaiah. It has to be noted that when
the registered power of attorney was executed during the
lifetime of Thimmaiah that is on 10.06.1996, possession
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has been delivered to one Ramamani. The said Ramamani
in turn executed the sale deed on 30.07.2010 and
delivered the possession in favour of the plaintiff. No
doubt, the rectification deed is with regard to the
description of the property mentioned in the document
dated 30.07.2010. No doubt, it is the contention of the
appellants that there was a release in favour of their
vendor who in turn executed the sale deed in their favour.
No doubt, the said document came into existence on
15.05.2019 and same is the subsequent document.
Having considered the material available on record it
discloses that when there was already a document
executed by the original owner during his lifetime that too
a irrecoverable power of attorney and based on the said
power of attorney, possession was delivered, no doubt,
the Trial Court comes to the conclusion that that the
matter requires trial and there are tirable issue since both
of them are claiming the right and interest over the same
suit schedule property. Having considered the document
of the year 1996 in favour of the power of attorney holder
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who in turn executed sale deed on 30.07.2010 in favour of
the plaintiff, whether defendant Nos.3 and 5 are having
right to execute the sale deed on 15.05.2019 in favour of
the appellants herein has to be determined by the Trial
Court. The suit was filed for the relief of declaration to
declare that subsequent sale deed is null and void and
already there are documents evidencing the fact that the
original owner has executed the registered power of
attorney and consequent upon the same, sale deed has
executed in favour of the plaintiff. Hence, I do not find any
error committed by the Trial Court in granting the relief of
temporary injunction restraining the defendant Nos.5 and
6 from interfering with the peaceful possession of the
plaintiff's since the original power of attorney itself clearly
discloses with regard to the delivery of possession in
favour of the power of attorney holder who in turn
executed the sale deed and delivered the possession.
Hence, I do not find any error committing by the Trial
Court since the Trial Court has taken note of the fact that
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prima facie case has been established by the plaintiff by
producing the documents.
7. The very contention of the appellants' counsel
that a direction may be given to maintain status quo of the
property and not to change the nature of the property and
the said submission cannot be accepted for the reasons
that the plaintiff has made out the prima facie case. The
learned counsel for the respondent brought to notice of
this Court that already evidence has been commenced and
the Trial Court also fixed the date for disposal as
30.06.2024. When the Trial Court fixed the date for
disposal and when triable claim is made in respect of the
suit schedule property and, Trial Court also exercised its
discretion, respective parties are directed to assist the
Trial Court to decide the issue involved between the
parties with regard to the title. Hence, there is no merit in
the appeal to reverse the finding of the Trial Court.
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8. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
The Trial Court shall not be influenced with the
observations made by this Court while considering the
matter on merits.
Sd/-
JUDGE
SN
