Karnataka High Court
Sri. Jawahar Gopal vs Sri. Vishal Baliga D on 11 July, 2025
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MFA No. 3947 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 3947 OF 2025 (CPC)
BETWEEN:
1. SRI. JAWAHAR GOPAL
S/O GOPAL RAMANARAYAN
AGED ABOUT 68 YEARS
RAMKRUPA, 6TH MAIN ROAD
GANDHINAGAR
BANGALORE - 560 009
2. SMT. SHEELA GOPAL
W/O GOPAL RAMANARAYAM
AGED ABOUT 88 YEARS
RAMKRUPA, 6TH MAIN ROAD
GANDHINAGAR
BANGALORE - 560 009
REPRESENTED BY GPA HOLDER
MR. JAWAHAR GOPAL
Digitally signed AGED ABOUT 68 YEARS
by ANJALI M
Location: High PRESENTLY BOTH THE APPELLANTS
Court of ARE RESIDENTS AT NO.21
Karnataka
3RD FLOOR, RAMAKRIPA
BENSON CROSS, OPPOSITE MILLER'S ROAD
BENSON TOWN, BENGALURU 560 046
...APPELLANTS
(BY SRI. DHANANJAY JOSHI, SENIOR COUNSEL FOR
SMT. KAVITHA DAMODARAN, ADVOCATE)
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MFA No. 3947 of 2025
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AND:
SRI. VISHAL BALIGA D
S/O DINESH BALIGA
AGED ABOUT 34 YEARS
RESIDING AT NO.56/3
MADHURI, BOREWELL ROAD
BANGALORE NORTH, WHITEFIELD
BANGALORE-560 066
...RESPONDENT
(BY SRI. C.V. NAGESH, SENIOR COUNSEL A/W
SRI. SUBRAMANYA R, ADVOCATE)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT. 02.06.2025 PASSED ON IA NOS. I
AND II IN O.S.NO. 1708/2024 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, ANEKAL,
ALLOWING THE IA.NOS 1 AND 2 FILED U/O.39 RULE 1 AND 2
R/W SEC.151 OF CPC.
THIS MFA HAVING BEEN RESERVED FOR JUDGMENT,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
This Misc. First Appeal is filed under Section 104 read
with Order 43 Rule 1 (r) of the CPC, 1908 by the
appellants challenging the order dated 02.06.2025 passed
by the learned II Addl. Senior Civil Judge and JMFC,
Anekal, in OS No.1708/2024 whereby, the learned trial
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Court allowed the IA's 1 and 2 filed by the plaintiff
respondent under Order 39 Rule 1 and 2 read with
Sec.151 of CPC, restraining the defendants their men,
agents and anyone claiming through or under them from
interfering with the respondents possession with the suit
schedule property and also from cutting and removing
standing trees in the said property pending disposal of the
suit.
2. The primary contentions of Sri.Dhananjay Joshi
learned Senior Counsel appearing for the appellants in the
present appeal is that, they are the lawful owners and in
possession of the plaint such property by virtue of
registered sale dead 6.9.2005 executed by appellant no.1,
acting under a (GPA) said to have been executed by late
Smt.Sharada Baliga i.e., the grand mother of the
respondent in the year 1995. The appellants further
contend that, the revenue records reflect their names, the
General Power of Attorney is genuine and that their title
was indirectly affirmed in earlier litigation culminating
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before the Hon'ble Apex Court. The appellants further
submit that, the respondent has failed to establish a prima
facie case and learned Trial Court failed to appreciate the
documents and the legal position correctly while granting
the injunction.
3. Learned Senior Counsel pointed out that, the
reasoning of the trial Court and specifically contend that,
by virtue of the power of attorney, the appellant no.1 has
executed the sale deed and the same is not challenged by
any of the parties much less, the respondent. He relied
upon various documents produced by the appellants in this
appeal and submits that, the plaintiff respondent is no way
concerned to the schedule-B property at any point of time
and falsely claiming right over the property alleged to have
been executed by his grand mother Sharada Baliga dated
10.1.1994. He would submit that, the learned trial Court
has committed a grave error in believing the video clip
produced by the respondent alleging that, there was
attempt of dispossession of plaintiff from suit schedule
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property by using anti-social elements with the help of
police. Repeatedly the respondent is submitting about
alleged high handed act of anti-social elements and police
to help the appellants which is not true. The learned
counsel for the appellants further relied upon the
observations of the trial Court which according to him are
erroneous. In addition to the grounds urged in the appeal
memo, he submits, there is concrete defence of the
appellants before the trial Court and the serious objections
raised to allow the application. Therefore, he prays to allow
this appeal and set aside the impugned order.
4. On the other hand, the counsel for the
respondent Sri C.V.Nagesh asserts that, the plaint schedule
properties are bequeathed to the plaintiff by his grand
mother Sharda Baliga by way of duly executed will dated
10.1.1994. The learned counsel for respondent would
submit that, by virtue of the said Will, it is plaintiff who has
been in possession of suit schedule property which includes
a residential house in which plaintiff and his family reside
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ever since the demise of his grandmother in the year 1997.
The plaintiff disputes the validity and legality of GPA and
the consequent sale deed dated 6.9.2005. He would
contend that, the appellants with an intention to dispossess
the plaintiff unlawfully and for commercial motives
attempted to enter the plaint B- Schedule property with the
help of anti-social elements and police and tried to cut and
remove valuable trees standing therein. In support of his
submission, the learned counsel for respondent also relied
upon various documents produced along with memo so also
video clip showing alleged interference by the defendants.
He submits that, the trial Court with well reasoned order,
has passed the impugned order which does not call for any
interference by this Court and thus, prays to dismiss this
appeal.
5. Having heard both the counsel for the parties
and having perused the entire records of the case including
the impugned order and the material placed on record, this
Court finds that, learned trial Court has passed a well-
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reasoned and legally sustainable order which does not call
for interference by this Court in its appellate jurisdiction for
the following reasons:
The controversy in the present case essentially
centers around two documents - firstly, a Will executed by
Smt.Sharada Baliga in favour of the respondent on
10.1.1994, and secondly, a general power of attorney said
to have been executed by her on 19.1.1995 in favour of
appellant no.1. As per the documents produced, the Will is
a registered document executed much prior to alleged GPA
and by virtue of this Will, the testator has bequeathed the
plaint schedule properties in favour of the respondent. The
GPA on the other hand, is claimed to have authorized the
appellant no.1 to sell the plaint B-Schedule property.
Based on the GPA the appellant no.1, is said to have
executed a sale deed in favour of his own mother i.e.,
appellant no.2 on 6.9.2005.
6. A General Power of Attorney is essentially a
legal instrument through which one person known as
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principal authorizes another known as agent or attorney, to
act on behalf of the executants in specified matters. In the
absence of any special statute to the contrary, such an
instrument is governed by the principles of Agency under
the provisions of Indian Contract Act, 1872. The
foundational nature of power of attorney is that, it merely
facilitates representation; it does not create or transfer
ownership rights in itself. The agent derives no proprietary
interest in the subject matter unless the instrument
specifically confers such interest. By the operation of law,
an agency relationship stands terminated upon the death
or mental incapacity of either the principal or the agent.
This principle is rooted in the concept that the agency is a
personal relationship based on mutual trust and confidence
However, there is one statutory exception to this rule. If
the power of Attorneys coupled with interest - meaning
thereby, the agent is conferred with not just authority, but
also, an independent, proprietary rights or financial interest
in the subject matter - the agency does not automatically
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terminate with the death of the principal. Such an
arrangement must be clearly expressed and supported by
consideration.
7. Now turning to the facts of this case, the
respondent-plaintiff is basing his claim on the registered
Will executed by Sharada Baliga. It is important to note
that, the Will is solemn document intended to operate after
the death of the testator. It is governed by the provisions
of Indian Succession Act. For the Will to be valid, the law
requires that, the testator must have the legal capacity to
make a Will and that the document must be properly
executed and attested. The signature of the testator and
the attestation by atleast two attesting witnesses are
essential formalities. Once these requirements are
satisfied, the Will stands on a strong legal footing.
8. It is settled position of law that, a general
power of attorney is an instrument of agency and is
governed by the provisions of Indian Contract Act, 1872.
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The legal consequence of GPA is not coupled with interest
and it automatically terminates upon the death of principal.
In the present case, it is not in dispute that, Smt.Sharada
Baliga passed away on 14.9.1997. The GPA is dated
19.1.1995, therefore, lapsed upon the death, unless it can
be shown that the same was irrevocable and coupled with
interest. However, the recitals of the GPA as per the
records, do not disclose that, any proprietary interest or
consideration was conveyed to the agent i.e. appellant
no.1. Hence, on a prima facie basis, the GPA now relied
upon by the appellants was not one coupled with interest
and accordingly, it ceased to have legal effect upon the
death of Smt.Sharada Baliga on 14.9.1997. Despite such
termination, or lapse, the sale deed was executed by
appellant no.1. on 6.9.2005 i.e., nearly eight years after
the death of principal. This, by itself, renders the said
conveyance prima facie invalid and void ab initio. It is
further pertinent to note that, the very person who held the
GPA, executed the sale deed in favour of his own mother
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i.e., appellant no.2 which adds to the suspicion and
demands strict scrutiny with regard to the conduct of the
appellant during the course of trial. The GPA has also been
challenged by the respondent as a forged document. The
respondent has placed on record an expert opinion by
handwriting analyst suggesting that, the signatures
appearing on the GPA do not match the admitted
signatures of Smt.Sharada Baliga. Although the veracity of
this expert opinion shall be tested in trial, it certainly
fortifies the respondent's case at this interlocutory stage.
9. On the other hand, the Will executed by
Smt.Sharada Baliga in favour of respondent is a registered
testamentary instrument which was not the subject matter
of challenge in the earlier partition suit in OS
No.10195/1995 or the connected appeal in RFA
No.1664/2012 or before the Apex Court. The Will has been
placed on record and prima facie satisfies the requirement
of Section 63 of Indian Succession Act, 1925. The law is
well settled that, a Will operates only after the death of
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testator and Will executed and attested Will shall prevail
unless there exists strong suspicious circumstance. In the
case on hand, at this stage, no suspicious circumstance is
surrounding in execution of the said Will has been pleaded
or demonstrated by the appellants. Furthermore, the
appellants have relied upon certain entries in the revenue
record namely RTC's to claim possession. However, the
very mutation application MR 34/2005 seeking entry of
appellant nos. 2 name was rejected by the Tahsildar for
non-production of GPA. This casts serious doubt on how
appellant's no.2's name subsequently appeared in the
RTCs. The respondent, in turn has placed on record
numerous documents to demonstrate his continuous
possession, including residential documents and electricity
bills. Even the appellants also admit that, the respondent is
residing in residential house with his family members but, it
is with their permission. Most crucially, CCTV video footage
as observed by the trial Court in the course of order show
that the appellants along with group of persons including
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police officials trespassed upon the property, broke down
the compound wall using JCBs and intimidated the
residents. In the course o the order, the trial Court has
remarked that, the visuals in the video clip are disturbing
and condemnable and there was an attempt of
dispossession which must not be condoned in a civilized
society governed by the rule of law.
10. On perusal of the impugned order, the learned
trial Court has examined the pleadings, documents placed
on record and relevant legal principles including the scope
of grant of temporary injunction under Order 39 Rule 1 and
2 of CPC and also conducted the threshold test i.e. whether
there exists a prima facie case, whether balance of
convenience tilts in favour of applicant and whether
irreparable injury will be caused if relief is denied - has
been applied by the trial Court in its full breadth. The trial
Court has rightly concluded that respondent-plaintiff has
established a strong prima facie case particularly on
account of his uninterrupted possession and expressed
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grave doubts surrounding the GPA and the sale deed. The
balance of convenience lies as the trial Court is preserving
the status quo rather than the appellants to take law into
their own hands. Irreparable injury is manifest especially
considering the acts of destruction and risk of permanent
deprivation of possession. Considering all these factors, the
trial Court has passed the impugned order.
11. Another contention of appellants regarding lack
of jurisdiction has also been addressed by the trial Court.
The plaint comprises suit schedule property i.e. A and B
while B is situated in Nallurhalli within the limits of Civil
Court and B-Schedule is within the jurisdiction of Anekal
Court. It is well established that, where the subject matter
of suit comprises of properties situated in different Courts,
the plaintiff has liberty to choose competent Court which
has jurisdiction over any one of the properties. The trial
Court's exercise of jurisdiction is not erroneous.
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12. This Court is also conscious of the limited scope
of interference in appeals arising from discretionary orders
passed under Order 39 Rules 1 and 2 of CPC. It is settled
principle that, unless the order under challenge is perverse,
arbitrary or contrary to settled principles of law, the
appellate Courts cannot lightly interference with such
order. The order passed by the trial Court is neither
perverse nor arbitrary. It is supported by legal reasons,
consideration of equity and fact-based evaluation of
records.
13. For the foregoing reasons, this Court finds that,
there is no merit in the present appeal. The impugned
order does not suffer from legal infirmity or error of
jurisdiction. Resultantly, I pass the following:
ORDER
(i) Appeal is dismissed.
(ii) The order dated 2.6.2025 passed by the
learned II Addl.Senior Civil Judge and
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JFMC, Anekal, in OS No.1708/2024, is
hereby affirmed.
(iii) The observations made herein are limited
to the adjudication of this appeal filed by
the appellants under Order 43 Rule 1 (r)
of CPC and shall not influence the trial
Court during trial or final adjudication of
the suit.
Costs made easy.
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK
