Karnataka High Court
Sri Harish Giriyappa Suvarna vs Smt Sujatha @ Sujaya on 25 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 765 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.765 OF 2025 (PAR)
BETWEEN:
1. SRI. HARISH GIRIYAPPA SUVARNA
S/O GIRIYAPPA H. SUVARNA
AGED ABOUT 65 YEARS
2. SMT. PRITI HARISH SUVARNA
W/O SRI. HARISH GIRIYAPPA SUVARNA
AGED ABOUT 55 YEARS
BOTH ARE RESIDING AT B-19
OM SATYA VINAYAKA
BEHIND SUVARNA HOSPITAL
BASTUR PARK, SHIMPOLI ROAD
BORIVILI WEST, MUMBAI-400 092.
Digitally signed ...APPELLANTS
by DEVIKA M
(BY SRI. AJITH A SHETTY, ADVOCATE)
Location: HIGH AND:
COURT OF
KARNATAKA
1. SMT. SUJATHA @ SUJAYA
AGED ABOUT 69 YEARS
W/O. LATE GUNDU SHETTY,
R/AT PLOT NO.6, ROOM NO.2,
BUILDING NO.28, SAI KRIPA APARTMENTS,
SECTOR 15, NEW PANVEL
NAVI MUMBAI - 410 206.
2. SRI. BALAKRISHNA SHETTY,
S/O. LATE PARAMESHWARA SHETTY,
AGED ABOUT 68 YEARS.
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3. SMT. VACHANI,
D/O. LATE PARAMESHWARA SHETTY
AGED ABOUT 63 YEARS,
4. SRI. BALACHANDRA SHETTY,
S/O. LATE PARAMESHWARA SHETTY
AGED ABOUT 61 YEARS
5. SMT. SANJANA,
D/O. YASHODA,
AGED ABOUT 30 YEARS,
RESPONDENTS NO.2 TO 5 ARE
RESIDENTS OF MELDABETTU HOUSE,
VANJARKATTE, BOLA VILLAGE,
KARKALA TALUK, UDUPI - 576121.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 04.07.2024
PASSED IN R.A.NO.45/2018 ON THE FILE OF SENIOR CIVIL
JUDGE AND ACJM, KARKALA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
20.09.2018 PASSED IN O.S.NO.110/2011 ON THE FILE OF
PRINCIPAL CIVIL JUDGE AND JMFC, KARKALA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 765 of 2025
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellants.
2. This second appeal is filed against the
concurrent finding. The factual matrix of the case of the
plaintiff before the Trial Court while seeking the relief of
partition and declaration to declare that general power of
attorney dated 07.05.2011, sale deed dated 09.05.2011
and partition deed dated 10.05.2011 are void and not
binding on the plaintiff and claimed 1/5th share in respect
of the 'A' schedule properties. It is the specific case of the
plaintiff that 'A' schedule properties were held by the
father of plaintiff namely Parameshwara Shetty and he
died in the year 1998 leaving behind his wife i.e., 1st
defendant, children namely one Smt.Baby, plaintiff and
defendant Nos.2 to 5 and one Smt.Yashoda as his legal
heirs. Said Baby died issueless and her husband also died,
Yashoda also died leaving behind her only daughter 6th
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defendant as her legal heir and her husband also died.
Thus, the plaintiff and defendant Nos.1 to 6 are entitled to
the suit schedule property and revenue records therefore
stands in their names and also contend that the suit
schedule properties are the properties of plaintiff and
defendants and they are in joint possession and they are
the legal heirs of Parameshwara Shetty and equally
entitled for the share and also entitled for relief of
declaration and partition. The defendant No.2 contended
that plaintiff has executed a GPA dated 07.05.2011 before
the notary and empowered the defendants to sell the
property and partition the property and defendant No.2
also contend that suit properties are already partitioned
among defendant Nos.1, 3 and 5 as per registered
partition deed dated 10.05.2011 and they are in
possession of respective shares. The defendant No.7
contend that he is a bonafide purchaser of Item No.1 of
plaint 'A' schedule property as per Sale deed dated
09.05.2011 and he become the absolute owner of the
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property and also contend that plaintiff and defendant
Nos.1 to 5 are interfering into his peaceful possession of
Item No.10 of the written statement property and he is
also entitled for permanent injunction by making a counter
claim and additional issues are also framed with regard to
the sale deed dated 09.05.2011 and partition deed dated
10.05.2011 and also plaintiff's contention that the power
of attorney deed dated 07.05.2011 is void and not binding
on her and registered sale deed is also not binding on her.
3. Having considered the pleadings of the parties,
issues are framed and also allowed the parties to lead
evidence. The Trial Court having considered both oral and
documentary evidence and also particularly the document
of power of attorney claimed by the defendant and he has
not produced the original before the Court and hence,
comes to the conclusion that the power of attorney is not
proved and hence, the plaintiff is entitled for a share over
the property and the same is observed in paragraph No.35
regarding Issue Nos.1 and 4, it is admitted that the suit
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properties were held by the father of plaintiff and
defendant Nos.2 to 5 and one Yashoda who is the mother
of defendant No.6 and husband of defendant No.1 namely
Parameshwara Shetty and after his death, the plaintiff and
defendant Nos.1 to 6 have succeeded to the property of
the legal heirs. The defendant No.2 has failed to prove his
contention that the plaintiff has executed GPA in his favour
and on the basis of the same, he partitioned suit schedule
property and sold item No.1 of the suit schedule property
to defendant Nos.7 and 8 and such finding was given and
granted the relief of partition dividing 5 shares.
4. The counter claim of defendant Nos.7 and 8 is
also rejected, the same is challenged before the First
Appellate Court in R.A.No.45/2018. The First Appellate
Court having re-assessed the material available on record,
in keeping the grounds which have been urged in the first
appeal, considered both oral and documentary evidence
and formulated the point with regard to the findings of the
Trial Court and comes to the conclusion that the Trial
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Court has not committed any error in the absence of
producing of GPA before the Court and claim of the
plaintiff is also that any sale deed is made based on the
power of attorney which was not proved and entitled for
1/5th share and the same has been confirmed by the First
Appellate Court and dismissed the appeal.
5. The counsel in his argument would vehemently
contend that both the Courts committed an error in
appreciating both oral and documentary evidence and also
contend that Courts were not justified in absolving the
plaintiff for responsibility to comply with Section 101 of the
Evidence Act and primary contention was that GPA dated
07.05.2011 was a result of fraud and forgery and the
same has not been proved and when such being the case,
the Trial Court and Appellate Court ought to have taken
note of Section 85 of the Indian Evidence Act with regard
to the very power of attorney in the light of the deposition
of D.W.1 and the same has not been considered.
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6. Having heard the learned counsel for the
appellants and also considering the materials available on
record particularly the pleadings and also the evidence
available on record, when the defendant specifically
pleaded that plaintiff has executed power of attorney and
the same is not produced before the Court and hence,
both the Trial Court and Appellate Court comes to the
conclusion that the same has not been proved and even if
any sale deed is executed based on the power of attorney
and the same is not valid and not binds on the plaintiff and
when such finding was given, I do not find any error on
the part of both the Courts.
7. It is also important to note that the main
contention of the appellants' counsel that as per Section
101 of Evidence Act, burden is on the plaintiff and no
doubt when the claim is made by the plaintiff that not
executed the power of attorney and when the defendant
relies upon the power of attorney and asserts that plaintiff
has executed the power of attorney, it is the burden on
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the defendant to prove that plaintiff has executed the
power of attorney and in the case on hand, first of all the
very original power of attorney is not placed before the
Court. When such being the case, question of proving
fraud and forgery by the plaintiff doesn't arise. Hence, I do
not find any ground to admit and frame substantive
question of law in the absence of any documentary proof
with regard to the partition is concerned and partition is
also in the year 2011 and as on the date of partition, the
plaintiff was having a right and excluded the plaintiff in the
said partition. When such being the case, the very
contention of the appellants/defendants that based on that
partition, property was sold also cannot be accepted.
However, considering the material on record, this
appellant is a purchaser and he purchased the property
from defendant No.2 and all family members excluding the
plaintiff. Hence, the appellants can plead equity before the
FDP Court with regard to the purchase of property by the
respective family members to allot the same with regard
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to the apportionment of the property of the executants of
the sale deed. With this observation, the second appeal is
disposed of.
8. In view of dismissal of the appeal, I.As., if any
do not survive for consideration, the same stands disposed
of.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
