Karnataka High Court
Mr. John D'Souza vs Mr. B. Arun on 23 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.6743/2024 (CPC)
BETWEEN:
1. MR. JOHN D'SOUZA
AGED ABOUT 69 YEARS,
S/O. MR. SIMON D'SOUZA,
RESIDING AT NO.34,
GROUND FLOOR,
NO.4, SHANTHIPURA,
ANEKAL TALUK,
BANGALORE - 560 099.
2. MR. FRANCIS D'SOUZA,
AGED ABOUT 61 YEARS,
S/O. MR. LIGORI D'SOUZA,
RESIDING AT BHARATH TEXTILES,
WARD NO.7, MAIN ROAD, NANJANGUD,
MYSORE 571301.
BOTH REPRESENTED BY
THEIR GPA HOLDER
MR. ASHWIN JOSHUA D'SOUZA,
S/O. MR. JOHN D'SOUZA,
AGED ABOUT 34 YEARS,
RESIDING AT NO.34,
SHANTHIPURA, ELECTRONIC CITY
2ND PHASE, ANEKAL TALUK,
BANGALORE-560 099. ... APPELLANTS
(BY SRI B.K.SAMPATH KUMAR, SENIOR COUNRSL FOR
SRI SURAJ S, ADVOCATE)
2
AND:
MR. B. ARUN
AGED ABOUT 35 YEARS,
S/O. MR. S.BALAKRISHNA MURTHY,
RESIDING AT NO.22,
NAVARANG, 1ST MAIN ROAD,
VYSYA BANK COLONY,
BANNERGHATTA ROAD POST,
BANGALORE-560 076.
... RESPONDENT
(BY SRI V.MANJUNATH, ADVOCATE)
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 08.08.2024 PASSED ON I.A.NO.1
IN O.S.NO.4268/2023 ON THE FILE OF THE XI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CCH-8, DISMISSING
THE IA.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W
SECTION 151 OF CPC AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11.11.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
This miscellaneous first appeal is filed challenging the
order dated 08.08.2024 passed on I.A.No.1 in
O.S.No.4268/2023 by the XI Additional City Civil and Sessions
Judge, Bengaluru City.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the plaintiffs before
the Trial Court is that they are the bonafide purchasers of the
suit schedule property and they are the joint owners of the said
property having been put in physical possession of the same and
the same was purchased for valuable consideration of
Rs.1,75,00,000/-. The appellants became the owners of the suit
schedule property pursuant to the absolute sale deed executed
by Mr. Narasimha Prasad Subraveti and Mrs. Bhavani Satyanath
on 25.04.2023 and the same was registered. The appellants
have paid a huge sum of Rs.1,43,50,000/- to the real estate
brokers by way of cheque, RTGS and cash on the very same day
of registration and they also paid the stamp duty, registration
charges, cess and miscellaneous expenses towards registration
of the suit schedule property. EC also discloses the same and
also got BBMP Khatha for the suit schedule property mutated
into their names and property tax for the suit schedule property
for the year 2022-23 has been paid to the BBMP and the names
of the appellants are entered in the revenue records and
electricity bill issued by the BESCOM in respect of the suit
schedule property also stands in the names of the appellants.
The suit schedule property which was a vacant site, with an
intention to develop the land, entered into an joint development
agreement dated 26.04.2023 with the developers namely, Mr.
Subramani, Mr. Uttarkumar and Mr.P. Kumar for valuable
consideration.
4. It is contended that when the case stood thus, the
respondent who is enemically disposed towards the appellants
and the development of the suit schedule property, he being a
local land grabber, illegally and unlawfully interfered with the
peaceful possession and enjoyment of the suit schedule property
and as a result, he broke a portion of the compound wall erected
on the suit schedule property causing damages to the tune of
Rs.45,000/- to Rs.55,000/- and on questioning, the respondent
and his henchmen, they jointly threatened the appellants with
dire consequences to life and hence, the appellants were
constrained to lodge a police compliant with the jurisdictional
police and on arrival of the police, the respondent and his
henchmen ran away from the spot. However, the police left the
spot without making any attempts to apprehend the respondent.
Under the circumstances, the suit is filed and inter alia sought
for the relief of temporary injunction seeking for restrained order
and the same is dismissed. Hence, the present appeal is filed
being aggrieved by the order of the Trial Court.
5. The counsel for the appellants in his arguments
would vehemently contend that the documents which have been
produced clearly discloses that the property having been
purchased in the year 2023 and also contended that the
documents which have been placed before the Trial Court clearly
depicts the rights of the appellants, but the Trial Judge heavily
relied on the un-dated layout plan produced by the respondent
purportedly issued by the Begur Panchayat which had no
inherent jurisdiction to issue such a plan. The said layout plan
does not even have a date or number or any other form of due
authentication. Pertinently, Gram Panchayaths are not even
authorized to issue layout plans under the Karnataka Gram
Swaraj and Panchayat Raj Act, 1993 and they are not the
competent authority to issue the layout plan under Section 17 of
the Karnataka Town and Country Planning Act, 1961. The
property in question is situated in Yelenahalli village, which falls
within the jurisdiction of BBMP and the same is evident from the
fact that the khatha for the suit schedule property stands in the
names of the appellants. The counsel also would vehemently
contend that the Trial Court makes much of the fact that the sale
deeds of the respondent are prior to the sale deed of the
appellants by overlooking the fact that except for the survey
number, the schedules and boundaries of both sets of properties
are completely different and there was no iota of material to
show that the suit schedule property belonged to the
respondent.
6. It is further contend that the Trial Court relies upon
the registered General Power of Attorney dated 14.12.1995
overlooking the fact that the only powers granted to Mr. L K
Sathyanarayana under the said document, especially clause
No.2, were to enter into sale agreements for the entire extent of
18 guntas in Sy.No.6/5 of Yelenahalli village, receive advance
amount, issue receipt and other purpose and no power of
execution of sale deed was given, without a specific power to sell
the property, the attorney could not have executed a sale deed
and registering officer could not have accepted such a document
when presented for registration and these factors were not taken
note of by the Trial Court. The Trial Court failed to take note of
Rule 69 of the Karnataka Registration Rules, 1965 wherein a
Registering Officer can authenticate or attest a General Power of
Attorney only when it contains a specific authority to present a
document or to admit execution of a document executed by the
principal.
7. The learned counsel contend that the property
originally belongs to Muniswamy. He executed the sale deed in
favour of Thimmaiah on 28.11.1943 in respect of the suit
schedule property and after his demise, the property fell to the
share of Mrs.Chinna Venkatamma and the revenue records were
transferred to her name vide mutation register extract bearing
No.10/1982-83 and the alleged power of attorney dated
14.12.1995 does not convey any right and no power is given to
execute any sale deed and only the same is given for
improvement. The learned counsel submits that the said
Mrs.Chinna Venkatamma applied for conversion of the property
and the same was converted on 23.01.2001. Though, the
respondent contend that he has purchased site Nos.122 and 123
on 30.04.2001 under different sale deeds, schedules are
completely different for the sale deeds of the appellants and the
respondent. Mrs.Chinna Venkatamma also passed away and an
extent of 18 guntas of the property was inherited by her son
Govindappa on account of her death. It is contended that on
18.10.2006, the said Govindappa and his family members have
executed absolute sale deed in favour of one M.Shantharaju and
M.Shantharaju also executed the sale deed in respect of total
extent of 18 guntas in favour of one Sri G.Harish on 18.10.2007.
The said Harish formed the sites and executed a deed of sale in
respect of the suit schedule property in favour of Narashima
Prasad Subraveti and Mrs. Bhavani Satyanath, both represented
by their general power of attorney holder S.L.Narashima Murthy,
who are the vendors of the appellants, registered the document.
The appellants have purchased the suit schedule property on
25.04.2023 for sale consideration of Rs.1,75,00,000/-. It was a
vacant site and the same was purchased with an intention to
develop the land. Accordingly, they entered into a joint
development agreement with developers namely, Subramanya,
Uttar Kumar and P. Kumar for valuable consideration and the
same was registered on 26.04.2023 and the khatha was
transferred by the BBMP. When such being the case, the
respondent unlawfully interfered with the peaceful possession
and enjoyment of the suit schedule property on 02.07.2023 and
broke a portion of the compound wall erected on the suit
schedule property and caused loss to the tune of Rs.45,000/- to
Rs.55,000/- and complaint was lodged and when the police came
they ran away from the spot. Hence, the plaintiffs filed the
present suit seeking the relief of temporary injunction and the
Trial Court was pleased to grant an exparte interim order. The
respondent appeared and filed his written statement on
12.10.2023 and immediately filed one more suit in
O.S.No.6819/2023 on 13.10.2023 and obtained the interim
injunction suppressing the pendency of O.S.No.4268/2023 and
injunction order was obtained by misleading the Court. The
learned counsel contend that electricity bill standing in the name
of the appellants dated 05.06.2024 and the Trial Court
committed an error in not considering all these documents and
committed an error in rejecting the temporary injunction
application. The learned counsel contend that the Trial Court
mainly relies upon granting of injunction in favour of the
respondent and fails to take note of the fact that after filing of
the written statement only suppressing the suit, obtained an
injunction order.
8. The learned counsel in support of his arguments
relied upon the judgment of the Apex Court in the case of
CHURCH OF CHRIST CHARITABLE TRUST AND
EDUCATIONAL CHARITABLE SOCIETY v. PONNIAMMAN
EDUCATIONAL TRUST reported in (2012) 8 SCC 706 and
brought to the notice of this Court paragraph Nos.19 and 20 and
contend that power of attorney and rights of the power of
attorney holder is strictly governed by terms contained in deed
of power of attorney and there cannot be exercising of powers
other than the right conferred upon the power of attorney
holder. The learned counsel brought to the notice of this Court
clause No.2 of the power of attorney dated 14.12.1995, wherein
only rights are given to enter into sale agreements, or other
agreements in respect of the schedule property with any persons
for any amount receive advance amount, issue receipt, apply to
the competent authorities seeking permission to execute such as
sale, mortgage, etc. sign all such documents, admit execution of
such documents in the concerned sub-registrar office. The
learned counsel referring this clause would contend that no
power was given to sell the property and hence the judgment is
aptly applicable to the case on hand.
9. The learned counsel also relies upon the judgment of
the Apex Court in the case of MANIK MAJUMDER AND
OTHERS v. DIPAK KUMAR SAHA (DEAD) THROUGH LRS.
reported in LAWS(SC)-2023-1-32 and brought to the notice of
this Court paragraph No.18 wherein discussion was made with
regard to the presumption as to powers-of-attorney as per
Section 85 of the Indian Evidence Act and also discussion was
made with regard to Section 17 of the Registration Act speaks
about the documents of which registration is compulsory, while
Section 18 deals with documents of which registration is
optional. Clause (f) of Section 18 states that all other
documents not required by Section 17 to be registered, may be
registered at the option of the parties. The power of attorney
holder may however execute a deed of conveyance in exercise of
the power granted under the power of attorney and convey title
on behalf of the grantor. The learned counsel referring this
judgment would contend that the alleged power of attorney not
gives any right to sell the property and hence these two
judgments are aptly applicable to the case on hand.
10. The learned counsel also filed a memo contending
that 1 gunta measures 1,089 sq.ft. and total 18 guntas
measures 19,602 sq.ft. and brought to the notice of this Court
that site Nos.120, 121, 122, 123 and 131 total area comes to
21,760 sq.ft. and 30 feet road x minimum of 11 feet comes to
3,360 sq.ft. and total would be 25,120 sq.ft. and contend that
the measurements shown in the alleged approved layout
exceeds the total measurement. The learned counsel contend
that the Trial Court fails to take note of all these aspects and
committed an error in rejecting the application.
11. Per contra, the learned counsel for the respondent
would contend that it is not in dispute that originally the
property belongs to Mrs.Chinna Venkatamma since her husband
had purchased the property in the year 1943. After his demise,
she became the owner and she along with her legal heirs
Lakshmanaiah and Govindappa executed a registered power of
attorney on 14.12.1995 and the power is also given to sell the
property. Hence, the property was sold on 30.04.2001 in
respect of two sites and all the documents are changed in his
favour and the encumbrance certificate discloses the same and
khatha also stands in the name of the respondent. The learned
counsel contend that when already power of attorney was
executed and power was given to execute the sale deed,
including mortgage and all types of documents by receiving the
advance amount, the question of once again executing the sale
deed by the very same persons in favour of Shantharaju does
not arise and if any transactions are made in favour of
Shantharaju and subsequent purchasers, no title flows and the
property is not in existence and the same was taken note of by
the Trial Court and the Trial Court rightly rejected the
application.
12. In reply to the arguments of the learned counsel for
the respondent, the learned counsel for the appellants submits
that Mrs.Chinna Venkatamma got the property converted and
there was no reference of the suit filed earlier before the Trial
Court. The learned counsel contend that the power of attorney
holder not having any right to execute the sale deed.
13. Having heard the learned counsel for the appellants
and the learned counsel for the respondent and considering the
principles laid down in the judgments referred supra and taking
note of the material on record, the points that arise for the
consideration of this Court are:
(i) Whether the Trial Court committed an error in
rejecting the temporary injunction and whether
it requires interference of this Court?
(ii) What order?
14. Having perused the material on record, the plaintiffs
claim right in respect of the suit schedule property that the
plaintiffs have purchased the property on 25.04.2023. The
plaintiffs have also produced the sale deed and other documents
and claims title through the legal heirs of Mrs.Chinna
Venkatamma that the legal heirs of Mrs.Chinna Venkatamma
executed the sale deed in favour of Shantharaju. On the other
hand, the defendant contend that Mrs.Chinna Venkatamma and
her two sons have executed the registered power of attorney in
the year 1995 itself and power of attorney is also produced
before the Court and the same is a registered document. The
main contention of the learned counsel for the appellants is that
the said power of attorney does not convey any right to execute
the sale deed. This Court would like to extract clause No.2 of
the power of attorney dated 14.12.1995:
"2. To enter into sale agreements, or other
agreements in respect of the schedule property with
any persons for any amount receive advance
amount, issue receipt, apply to the competent
authorities seeking permission to execute such as
sale, mortgage, etc., sign all such documents, admit
execution of such documents in the concerned sub-
registrar office."
15. It is important to note that there is a sale deed in
favour of the respondent executed in the year 2001 itself.
Though the learned counsel for the appellants contend that no
such sale power is given, having read clause No.2 of the power
of attorney, all powers are given to the power of attorney holder.
It is important to note that sale deeds are made in 2001 itself,
but the appellants are claiming right based on the sale deed
executed by Govindappa, Rathnamma, Harish, Asha and Usha on
18.10.2006. The fact is that Govindappa was a party to the
earlier power of attorney and the sale deed was executed in
favour of Shantharaju in 2006, but already power of attorney
was executed in 1995 itself. No doubt, subsequent sale deeds
are executed in favour of the vendors of the plaintiffs and also
general power of attorney was executed in 2010. Having
considered all these documents, these documents are
subsequent to the power of attorney of the year 1995. Apart
from that, the sale deeds are executed in favour of the
respondent in respect of site Nos.122 and 123 on 30.04.2001
itself. The plaintiffs are relying upon the subsequent sale deeds
and the fact is that the property originally belonged to
Muniswamy, who sold the property in favour of Thimmaiah on
28.11.1943 and after his demise, Mrs.Chinna Venkatamma
succeeded to the property along with Govindappa and another
son. But there was already a power of attorney registered in the
year 1995 itself and the power of attorney holder sold the sites
after conversion of the property. The respondent relies upon the
layout plan approved by the concerned Village Panchayat and
plaintiffs have not produced any documents for having formed
the layout by the subsequent purchasers and power of attorney
holder for identification of the property.
16. The learned counsel for the appellants contend that
the measurement exceeds total extent of 18 guntas. The same
is a matter of trial and the Court has to take note of flow of title
as well as suit is filed for the relief of permanent injunction. The
defendant has disputed the very existence of the property since
there was a sale deed in his favour in respect of the very same
property and once the document was executed in 1995 giving all
powers by all the legal heirs of the said Thimmaiah, the
defendant has made out a prima facie case and balance of
convenience in his favour and not in favour of the plaintiffs. The
Trial Court has given the reasoning in paragraph No.11 while
discussing the same and comes to the conclusion that the
defendant has produced the copy of the layout plan referred to
in the sale deed and other documents and the defendant also
filed a suit against the plaintiffs and obtained an order of
temporary injunction. There is a force in the contention of the
learned counsel for the appellants that the same is filed
subsequent to the filing of the written statement. But the Court
has to take note of the prima facie case and when the plaintiffs
have not made out any prima facie case to grant the relief, the
question of reversing the finding of the Trial Court does not arise
and the scope of appeal is very limited. The learned counsel for
the appellants relies upon the two judgments and there is no
dispute with regard to the principles laid down in the said
judgments and having read clause No.2 of the power of
attorney, all powers are given to the power of attorney holder,
including execution of sale deed and hence I do not find any
ground to interfere with the findings of the Trial Court.
17. In view of the discussions made above, I pass the
following:
ORDER
The miscellaneous first appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
SN/MD
