Karnataka High Court
Smt. Marakka vs G Honnananjappa on 25 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1209 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1209 OF 2022 (DEC/INJ)
BETWEEN:
1. SMT. MARAKKA
WIFE OF LATE MUNIYAPPA
AGED ABOUT 76 YEARS
2. SRI RAMACHANDRAPPA
SON OF LATE MUNIYAPPA
AGED ABOUT 53 YEARS
3. SRI RANGASWAMY
SON OF LATE MUNIYAPPA
AGED ABOUT 38 YEARS
ALL ARE R/AT CHANDRAPPA CIRCLE
Digitally signed
by DEVIKA M TAVAREKERE HOBLI
Location: HIGH BANGALORE SOUTH TALUK
COURT OF ...APPELLANTS
KARNATAKA
(BY SRI ALLAH BAKASH M, ADVOCATE)
AND:
1. G HONNANANJAPPA
SON OF LATE GURUMURTHY ACHAR
AGED ABOUT 79 YEARS
RESIDING AT NO 778
HESSARAGHATTA VILLAGE
BANGALORE - 560088
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RSA No. 1209 of 2022
2. M VIJAYAKUMAR
SON OF LATE M P MURTHY
AGED ABOUT 48 YEARS
RESIDING AT No.4
2ND FLOOR, 3RD CROSS
HAVANURU LAYOUT
HESSARAGHATTA MAIN ROAD
BANGALORE - 560073
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 CPC 1908
AGAINST THE JUDGMENT AND DECREE DATED 13.01.2022
PASSED IN R.A.No.19/2020 ON THE FILE OF THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
RAMANAGARA AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE H.P.SANDESH)
This matter is listed for admission. Heard the learned
counsel appearing for the appellants.
2. The factual matrix of the case of the plaintiffs
before the Trial Court that they have approached the Trial
Court to cancel the sale deed dated 15.03.2010 executed
by defendant No.1 in favour of defendant No.2 and for
permanent injunction. The plaintiffs contend that plaintiff
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No.1 is the widow of late Muniyappa and the plaintiffs No.2
and 3 are the sons of Muniyappa and the said Muniyappa
died on 28.12.2011. It is contended that half portion of
the suit schedule property is an ancestral property of
Muniyappa and other half portion of suit schedule property
was purchased by Muniyappa from Rangappa, Govindappa
and Basappa under separate sale deeds. Hence,
Muniyappa was in possession of the suit schedule property
and after his death, the plaintiffs by paying kandayam are
in possession of the suit schedule property. It is
contended that one Venkataramanappa being the adjacent
land owner on the northern side of the suit schedule
property illegally constructed the building there. In this
regard, Muniyappa instituted O.S.No.85/1999 for
declaration and mandatory injunction against
Venkataramanappa and the said suit was decreed in
favour of Muniyappa on 07.04.2000.
3. It is also contended that late Muniyappa
preferred execution petition to execute the said decree
and on 28.07.2000, the Court passed the orders for
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demolition of the illegal construction through the Court
Commissioner. It is contended that defendant No.1 and
late Muniyappa were friends. Defendant No.1 had
knowledge of the proceedings in O.S.No.85/1999 and the
execution case. As such, Muniyappa requested defendant
No.1 to assist him and accordingly, defendant No.1
promised Muniyappa that he would demolish the illegal
construction and recover the possession from
Venkataramanappa. Then, the husband of the plaintiff
No.1 Muniyappa executed General Power of Attorney
(GPA) with respect to the suit schedule property on
21.08.2000.
4. It is contended that in the said power of
attorney, the purpose for executing the same is
mentioned. But defendant No.1 has acted beyond the
purpose of the said GPA. Therefore, Muniyappa cancelled
the registered GPA on 31.08.2009. In this regard, he got
issued legal notice dated 13.01.2010 to defendant No.1
and defendant No.1 intentionally not received the said
notice. It is also contended that defendant No.1 had no
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right to deal with the said suit schedule property as
Muniyappa had cancelled the GPA on 31.08.2009. Still,
defendant No.1 executed the sale deed in favour of
defendant No.2 on 15.03.2010 which is not sustainable
under law. It is contended that plaintiffs are in possession
and enjoyment of the suit schedule property not the
defendants.
5. In pursuance of suit summons, defendant Nos.1
and 2 appeared before the Court and filed their written
statement wherein they have admitted the relationship of
the plaintiffs with late Muniyappa. The defendants have
further admitted the death of Muniyappa on 28.12.2011
and the suit schedule property was owned by Muniyappa.
Admittedly, the suit schedule property consisted of a small
house and vacant land. Admittedly, late Muniyappa had
khatha in respect of the property. The defendants have
further admitted that Venkataramanappa was the owner of
the adjacent property to the suit schedule property and
had encroached upon a portion of suit property. Hence,
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the late Muniyappa filed O.S.No.85/1999 and the same
was decreed.
6. It is further contended that on 20.07.2000, late
Muniyappa entered into an agreement of sell in respect of
the suit schedule property with the wife of defendant No.1
for consideration of Rs.1,25,000/-. On the date of the sale
agreement, late Muniyappa received Rs.50,000/- as
advance consideration from the wife of defendant No.1. At
that time, there was an exparte decree obtained by late
Muniyappa against Venkataramanappa for removal of
encroachment in a portion of the plaintiff's suit schedule
property. Since, Venkataramanappa was an influential
person, late Muniyappa found it difficult to get the decree
executed, as such late Muniyappa approached defendant
No.1 after entering into the sale agreement with the wife
of defendant No.1 to get the decree executed by meeting
the cost of removal by whatever means permissible in the
course of the execution. Then, late Muniyappa executed
registered irrevocable GPA in favour of defendant No.1 on
18.08.2000. It is further contended that pursuant to the
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said GPA, defendant No.1 was required to get the decree
executed and encroachment removed by incurring the cost
which was to be recovered by sale of the suit schedule
property and also for recovery of Rs.50,000/- paid earlier
as advance under the agreement of sale dated
20.07.2000. Defendant No.1 took steps in the execution
in the third week of August 2000 and he entrusted the
work of removal of encroachment to Gopal Gowda who
required to be assisted the Commissioner appointed by the
Court. The said Gopal Gowda engaged about 100 skilled
workers and also a JCB and a TATA Sumo vehicle with a
driver by name Ramesha for the safety of defendant No.1.
At the time of execution of delivery warrant, the driver
Ramesha remained at a distant spot in TATA Sumo, in
which defendant No.1 had kept his brief case containing
documents such as original agreement dated 20.07.2000
and cash of Rs.40,000/-. One Srinivasagowda who was ill-
disposed towards defendant No.1 tried to create a scene at
the time of execution of delivery warrant and sent some
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messages to the driver Ramesha and made him to go to
the spot by leaving the car.
7. It is further contended that said Srinivasagowda
taking advantage of the absence of the driver took away
the car and brought the car back at midnight to the house
of the 1st defendant at Hesaragatta and on verification, it
was found that the brief case and cash was missing along
with some documents including the original agreement
were lost by the 1st defendant. In this regard, defendant
No.2 lodged a complaint. Defendant No.1 incurred
expenditure of Rs.1,50,000/- for execution of the delivery
warrant and this was recoverable by defendant No.1 out of
the sale proceedings of the property as agreed at the time
of execution of GPA by late Muniyappa in favour of
defendant No.1. It is contended that defendant No.1 on
15.05.2009 entered into an agreement of sell with
defendant No.2 in respect of the suit schedule property as
late Muniyappa failed to reimburse the cost to 1st
defendant which was incurred by him in the execution of
the delivery warrant and to repay the advance received by
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him under sale agreement dated 20.07.2000. The
consideration for sale under the agreement dated
15.05.2009 was Rs.1,00,000/-. On 15.03.2010, the
defendant executed the sale deed in favour of defendant
No.2 and appropriated the sale consideration towards the
refund of advance as well as the expenses incurred in the
execution case. The late Muniyappa was still due to pay to
the 1st defendant towards balance of expenses incurred in
executing the delivery warrant. Accordingly, defendant
No.1 got issued the letter dated 30.04.2010 through
registered post to late Muniyappa demanding Rs.55,000/-
along with interest at 18% per annum. Late Muniyappa
received the said letter but he neither paid balance with
interest nor repudiated the transaction of sale nor brought
to the notice of the 1st defendant about the so called
cancellation of the GPA till his death on 28.12.2011. As
such, late Muniyappa had tacitly approved the transaction
entered into by the 1st defendant in favour of defendant
No.2. It is also contended that the plaintiffs ought to have
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filed the suit within 3 years from the date of the sale deed.
Hence, the suit is barred by time.
8. The Trial Court taking into note of the pleadings
of the parties framed the Issues and allowed the parties to
lead their evidence. The Trial Court having considered
both oral and documentary evidence placed on record not
accepted the case of the plaintiffs and accepted the case
of the defendants regarding execution of irrevocable GPA
and dismissed the suit. Being aggrieved by the judgment
and decree of the Trial Court, an appeal was preferred by
the plaintiffs in R.A.No.19/2020. The First Appellate Court
also having considered the grounds urged in the appeal
memo framed the points and also having reassessed both
oral and documentary evidence placed on record comes to
the conclusion that defendant No.2 is the bonafide
purchaser of the suit schedule property for valuable
consideration and also comes to the conclusion that
judgment and decree passed by the Trial Court is justified
and also comes to the conclusion that defendant No.1
proved that late Muniyappa executed the irrevocable GPA
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with regard to the right to sell the suit schedule property
and hence, dismissed the appeal filed by the appellants.
Being aggrieved by the concurrent finding of both the
Courts, the present second appeal is filed before this Court
by the plaintiffs.
9. The main contention of the learned counsel
appearing for the appellants that GPA was cancelled and
sale deed was executed subsequent to the cancellation of
GPA and both the Courts failed to take note of the material
available on record while answering the issues and also
the points for consideration. The counsel also would
vehemently contend that even the First Appellate Court
also committed an error in rejecting the application filed
under Order 41 Rule 27 of CPC and the sale deed was
executed in the year 2010 and approached the Court in
the year 2013 which is well within the limitation under
Article 59 of the Limitation Act. Inspite of it, the First
Appellate Court committed an error in confirming the
judgment of the Trial Court. Hence, it requires
interference of this Court.
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10. Having heard the learned counsel appearing for
the appellant and also on perusal of the material available
on record, it discloses that the Trial Court while answering
the issues taken note of the very execution of irrevocable
GPA. There is no dispute with regard to the execution of
GPA in favour of defendant No.1 by the said Muniyappa
and no doubt that the Trial Court while answering Issue
No.1 comes to the conclusion that half of the suit schedule
property was purchased by Muniyappa and remaining half
of the suit schedule property was got by him in a partition
and even answered the Issue No.2 as negative since the
pleading made by the plaintiffs in paragraphs 5 and 6 of
the plaint has not been proved and also answered Issue
No.3 as negative in coming to the conclusion that before
cancellation of the GPA, no notice was served and comes
to the conclusion that GPA issued is also a irrevocable
GPA. The Trial Court held that specific contention was also
taken by the defendant in the written statement that the
same is irrevocable GPA and also specifically pleaded with
regard to the earlier decree and taking of possession by
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filing the execution petition. In paragraph 27, the Trial
Court comes to the conclusion that, Ex.P3 recitals is clear
that GPA is irrevocable GPA, actually the said document is
an irrevocable power of attorney. No doubt, the legal
notice was issued to defendant No.1 on 31.01.2010 but
the same was not served and the same has been
discussed in paragraph 35 of the judgment of the Trial
Court. When the document was executed and the same
was registered by giving a power to sell the property, the
very contention that GPA is given for other purpose not for
the purpose of selling of the property not accepted by the
Trial Court.
11. Even the First Appellate Court also having
reassessed the material available on record taken note of
Section 202 of the Contract Act and while answering points
No.2 and 3, elaborate discussion was made and also taken
note of the fact that Ex.P3 was executed with a right to
sell the suit schedule property and the same has not been
cancelled or terminated in view of the provision of Section
202 of the Contract Act. The First Appellate Court not only
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considered the question of fact but also considered the
question of law while dismissing the appeal and elaborate
discussion was made and also taken note of the fact that
sale deed was executed by defendant No.1 in favour of
defendant No.2 based on the GPA and the said GPA is
irrevocable GPA. Hence, there is a concurrent finding by
both the Courts with regard to the factual aspects as well
as question of law. When such being the case, I do not
find any grounds to admit the second appeal and to frame
the substantial questions of law invoking Section 100 of
CPC.
12. In view of the discussions made, I pass the
following:
ORDER
The regular second appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
SN
