Karnataka High Court
Ms Komal K Dharamshi vs Ms P B Divija on 30 October, 2025
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RFA No. 249 of 2014
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR FIRST APPEAL NO.249 OF 2014 (DEC)
BETWEEN:
1. KOMAL K. DHARAMSHI
ALIAS MS. KOMAL K SHAH
D/O MR. KUSHALCHAND D. SHAH
AGED ABOUT 28 YEARS
R/AT NO.898, 10TH CROSS
22ND MAIN, J.P. NAGAR II PHASE
BENGALURU - 560078.
2. MR. RAHUL DHARAMSHI
S/O MR. KUSHALCHAND D. SHAH
AGED ABOUT 39 YEARS
R/AT NO.35/1, DELUXE HOUSE
MAVALLI TANK BUND ROAD
Digitally signed by
ARUNKUMAR M S BENGALURU -560 002.
Location: HIGH
COURT OF ... APPELLANTS
KARNATAKA
(BY SRI. KARAN JOSEPH, ADVOCATE)
AND:
1. MS. P.B. DIVIJA
D/O MR. P.S. BOJAPPA
AGED ABOUT 40 YEARS
R/AT KAVERI NILAYA
HOUSE NO.16, 4TH CROSS
4TH MAIN, NAVODAY NAGARA
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RFA No. 249 of 2014
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BENGALURU -560078.
2. MR. VIJAYA KUMAR
AGED ABOUT 47 YEARS
REPRESENTATIVE CITY FINANCE
PEENYA DASARHALLI
BENGALURU - 560058.
3. MR. KUSHALCHAND D. SHAH
S/O DHARMSHI
AGED ABOUT 61 YEARS
DELUXE ROAD LINES
NO.35/1, DELUXE HOUSE
MAVALLI TANK BUND ROAD
BENGALURU - 560002.
... RESPONDENTS
(BY SRI. MOHAMMED SADIQH B.A., ADVOCATE FOR R1;
NOTICE TO R2 IS HELD SUFFICIENT V/O DATED 15.03.2021;
R3 SERVED AND UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER XLI OF CPC AGAINST THE JUDGMENT &
DECREE DATED 12.11.2013 PASSED IN ORIGINAL SUIT
NO.16934 OF 2006 ON THE FILE OF THE XXVIII ADDITIONAL
CITY CIVIL JUDGE, BENGALURU DECREEING THE SUIT FILED
FOR DECLARATION.
THIS REGULAR FIRST APPEAL HAVING BEEN RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
E.S. INDIRESH J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
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RFA No. 249 of 2014
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CAV JUDGMENT
1. This appeal is preferred by the defendant Nos.1 and 4
assailing the Judgment and Decree dated 12.11.2013 in
O.S.No.16934/2006 on the file of 28th Addl. City Civil Judge at
Mayo Hall Unit, Bengaluru, decreeing the suit of the plaintiff
holding that the General Power of Attorney dated 29.03.2005 is
null and void.
2. For the sake of convenience, the parties are referred as per
their rank before the Trial Court.
3. The plaint averments are that, the plaintiff had purchased
the suit schedule property as per the registered Sale Deed dated
09.04.2004 from one Sri. K. Bhaskaran and Smt. Rashmi, and
since thereafter, the revenue record stands in the name of the
plaintiff. The plaintiff is in possession of the suit schedule
property. It is also stated that the plaintiff was working as a
Receptionist in the transport company, namely Deluxe Roadlines
belonging to defendant No.1. It is further stated in the plaint
that defendant No.1 was harassing the plaintiff sexually and was
trying to molest the plaintiff on several occasions when she was
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working with the defendant No.1. It is also stated that the
plaintiff had protested the illegal acts of defendant No.1. It is
also stated that the plaintiff had come to the conclusion to resign
from the job and as such expressed the same to defendant No.1
and the defendant No.1 pressurized the plaintiff to put her
signature on blank papers for which the plaintiff refused and
thereafter, the defendant No.1 flashed a loaded pistol on the
face of the plaintiff and abused the plaintiff in filthy language and
also threatened the plaintiff to kill her if she refused to put her
signature on the blank sheets. At that juncture, the plaintiff, in
order to escape from defendant No.1, put her signature on
certain blank sheets. It is also stated that the plaintiff has not
revealed the same to her parents fearing that defendant No.1
may kill her and her family members. It is also stated in the
plaint that defendant No.2 is a representative of the financial
company and used to visit the office of defendant No.1. The
defendant No.2, at the instance of defendant No.1, insisted the
plaintiff to deliver the original property title documents for
scrutiny and the plaintiff has handed over the original property
papers to defendant No.2. Thereafter, the plaintiff requested the
defendant No.2 to return the documents for which the defendant
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No.2 threatened the plaintiff to face dire consequences. It is
also stated that on 16.03.2006, the defendant No.2 along with
some goonda elements visited the house of the plaintiff and
ransacked the window grills and name board affixed in the front
portion of the house. The defendant No.2 assaulted the father of
the plaintiff and directed the parents of the plaintiff to vacate the
suit property. Pursuant to the same, father of the plaintiff has
lodged a complaint before the Subramanyapura Police and as
such, the plaintiff has filed the suit in O.S. No.2542/2006
seeking relief of permanent injunction.
4. It is further averred in the plaint that, after defendants
entered appearance and filed written statement in the earlier
suit, the plaintiff came to know that defendant No.4 is the owner
of the suit schedule property as per the registered Sale Deed
dated 30.03.2005. The plaintiff was shocked to see that the suit
schedule property was sold in favour of defendant No.4 by
defendant No.1 based on an unregistered General Power of
Attorney dated 29.03.2005 said to have been executed by the
plaintiff in favour of defendant No.1. It is the contention of the
plaintiff that the alleged Power of Attorney dated 29.03.2005 is
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false and fabricated and sale deed dated 30.03.2005 executed
by defendant No.1 as the Power of Attorney holder of the
plaintiff in favour of the sister of defendant No.1 aged abut 19
years as on the date of execution of the registered Sale Deed is
illegal and based on concocted documents. It is the contention
of the plaintiff that the registered Sale Deed is non est in law and
the General Power of Attorney dated 29.03.2005 is fictitious
document and therefore the plaintiff has filed suit in
O.S.No.16934/2006, seeking declaration that the registered Sale
Deed dated 30.03.2005 based on the General Power of Attorney
dated 29.03.2005 is null and void.
5. After service of summons, defendants entered appearance.
Defendant Nos.1, 3 and 4 have filed written statement denying
the averments made in the plaint. It is the case of the
defendant No.4 that she is the absolute owner in possession of
the suit schedule property having acquired the same as per the
registered Sale Deed dated 30.03.2005 executed by the plaintiff
through her General Power of Attorney holder - defendant No.1.
It is further contended by defendant that after purchase of the
suit property from the plaintiff, plaintiff requested the defendant
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No.4 for some considerable period to stay in the suit schedule
property and further it is stated in the written statement that the
plaintiff has not adhered to her promise to vacate the suit
schedule property. Hence, it is the contention of the defendants
that plaintiff is not the owner in possession of the suit schedule
property. The defendants also denied the allegation of sexual
harassment and molestation against the plaintiff as stated in the
plaint and as such, sought for dismissal of the suit. It is also
stated in the written statement that defendant No.4 agreed to
purchase the suit property for a valuable consideration and same
was finalised on 29.03.2005 and on the next day, the registered
Sale Deed came to be executed, hence the defendants sought for
dismissal of the suit.
6. On the basis of the pleadings on record, the Trial Court
framed the following issues for its consideration:
" 1) Whether the plaintiff proves that the GPA
dated 29.3.2005 is fictitious, concocted, fabricated
and forged the same is null and void?
2) Whether the plaintiff proves that the sale deed
dated 30.3.2005 executed by defendant No.1 as a
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GPA holder of plaintiff in favour of defendant no.4
is nonest in law?
3) Whether the suit is valued properly and court
fee paid is sufficient?
4) What order or decree?"
7. In order to establish their case, plaintiff has examined
herself as P.W.1 and two more witnesses as P.W.2 and P.W.3,
and got marked 17 documents as Exs.P1 to P17. The defendant
No.1 was examined as D.W.1 and 13 documents were got
marked as Exs.D1 to D13 on behalf of the defendants. The Trial
Court, after considering the material on record, by its Judgment
and Decree dated 12.11.2013, decreed the suit holding the
General Power of Attorney dated 29.03.2005 is null and void
and consequently held that the registered Sale Deed dated
30.03.2005 executed in favour of defendant No.4 as void.
Feeling aggrieved by the same, the defendant Nos.1 and 4 have
presented this appeal.
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8. I have heard Sri. Karan Joseph, learned counsel for the
appellants/defendants No.1 and 4, Sri. Mohammed Sadiqh B.A.,
learned counsel for respondent No.1/plaintiff.
9. It is the submission of the learned counsel for the
appellants that the Trial Court has not properly appreciated the
oral and documentary evidence adduced by the parties. It is
argued by the learned counsel for the appellants that the Trial
Court has ignored the scope of Section 85 of the Evidence Act,
1872, which stipulates that the Court has to presume the
authenticity of a Power of Attorney that was duly executed. It is
also argued by the learned counsel for the appellants that the
Trial Court has committed an error in placing the burden of
proving the genuineness of General Power of Attorney on the
defendants, and on the other hand, it is the duty of the plaintiff
to prove the non execution of the General Power of Attorney
executed in favour of defendant No.1. It is further argued by the
learned counsel for the appellants that the scope and ambit of
Section 85 of the Evidence Act, was not considered and
therefore, the reasoning drawn by the Trial Court requires to be
set aside. It is further argued that the presumption under
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Section 85 of the Evidence Act, 1872, being rebuttable, therefore
the burden is on the plaintiff to establish her rebuttal evidence
and accordingly, sought for interference of the Court. It is
further argued that, the Court fees paid by the plaintiff is
insufficient and the said aspect of the matter was not properly
appreciated by the Trial Court and as such, sought for
interference of the Court.
10. Per contra, learned counsel for the respondent No.1 sought
to justify the impugned Judgment and Decree passed by the Trial
Court. Learned counsel invited the attention of the Court to
Sections 24 and 48 of the Karnataka Court-fees and Suits
Valuation Act, 1958, and argued that, the Court fees paid by the
plaintiff is just and proper and same has been considered by the
Trial Court while answering issue No.3 and therefore, sought for
dismissal of the appeal.
11. In so far as the contention raised by the learned counsel
for the appellants with regard to execution of the General Power
of Attorney dated 29.03.2005 is concerned, learned counsel for
respondent No.1, invited the attention of the Court to the cross-
examination of D.W.1 and refers to the deposition of D.W.1 on
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07.06.2013 in detail, and submitted that the finding recorded by
the Trial Court requires to be confirmed.
12. In the light of the submissions made by the learned
counsel appearing for the parties and on perusal of the original
records, the following points have to be answered in this appeal:
" (i) Whether the execution of the General
Power of Attorney dated 29.03.2005 was executed
under suspicious circumstances to facilitate the
defendant No.1 to sell the suit property in favour of
his sister - defendant No.4?
(ii) Whether the Judgment and Decree
passed by the Trial Court requires interference in this
appeal? "
13. In the light of the submissions made by the learned
counsel appearing for the parties, I have carefully examined the
finding recorded by the Trial Court and perused the original
records. It is the contention of plaintiff that, plaintiff was
working as a Receptionist in Deluxe Roadlines belonging to
defendant No.1. The plaintiff has narrated in the plaint with
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regard to harassment meted out to her while working as a
Receptionist in the office of defendant No.1. It is also to be noted
that the plaintiff disputes the execution of General Power of
Attorney dated 29.03.2005 in favour of defendant No.1. In this
regard, the case of the defendant No.1 is, that the plaintiff was
in need of money for the construction of the house in her native
place and in order to put up construction, the plaintiff required
financial assistance and as such requested the defendant No.1 to
sell the suit schedule property. In this regard, it is pertinent to
mention here that it is the argument of defendants that, the
execution of the General Power of Attorney (Ex.D4) as per the
version of defendant No.1 was made by the plaintiff on
29.03.2005, and based on the said General Power of Attorney,
the registered Sale Deed (Ex.D5) was executed by defendant
No.1 in favour of his sister - defendant No.4, on 30.03.2005.
14. The perusal of the General Power of Attorney dated
29.03.2005 is undoubtedly an unregistered General Power of
Attorney, wherein the executant authorised the Power of
Attorney holder to sell the suit schedule property. It is also to be
noted that, the recitals in the registered Sale Deed dated
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30.03.2005 (Ex.D5), refers to the sale agreement between the
parties to sell the suit schedule property, and the consideration
amount has been made through cash by the parties. The plaintiff
denied the acceptance of the sale consideration amount. It is
also forthcoming from the registered Sale Deed dated
30.03.2005 wherein the age of the purchaser (defendant No.4)
was 19 years. Nothing is produced by the defendants as to how
defendant No.4 procured the sale consideration of Rs.5,25,000/-.
Though it is argued by the learned counsel for the appellants
that, father of defendant No.4 has paid the consideration
amount, however, the father of defendant No.4 was not
examined before the Trial Court and therefore I find that the
Trial Court has in threadbear analysed the entire oral and
documentary evidence adduced by the parties and rightly arrived
at the conclusion to set aside the General Power of Attorney
dated 29.03.2005 and the Sale Deed dated 30.03.2005. It is
also to be noted that the sale agreement as reflected in the Sale
Deed Ex.D5 is not forthcoming from the records and same was
denied by the plaintiff in her evidence.
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15. I have carefully examined the signature of the plaintiff on
the plaint, vakalatnama filed before the Trial Court as well as
signature of the plaintiff on the General Power of Attorney.
16. In order to ascertain whether the signature of the plaintiff
on the plaint and on the GPA (Ex.D4) is similar i.e., admitted
signature of the plaintiff on the plaint with the disputed signature
of the plaintiff on Ex.D4, as a rule of prudence, it could be easily
arrived at the conclusion by examination through naked eye that
signature of the plaintiff on the plaint is totally different from the
signature on the General Power of Attorney (Ex.D4). In order to
ascertain the veracity of averment made in the plaint as to
whether the plaintiff was forced to sign documents and on blank
white sheets, it is relevant to refer to the cross-examination of
D.W.1, wherein, the D.W.1 admits that he had the licence to own
a pistol. Relevant portion of the cross examination of D.W.1
dated 07.06.2013 is extracted below:
"ನನ ಹ ರ ಪರ ಾನ ೊಂ ರುವ ಸೂ ಇ ೆ. ಾನು ಅದನು
ಉಪ ೕ ಸುವ ಲ ಮತು ನನ "ೊ#ೆ$ೆ %ೊಂ&ೊಯು(ವ ಲ. ಾನು
ಾ $ೆ ಸದ) ಸೂ #ೋ)* ಆ$ಾಗ -ೆದ)ಸು ೆ. ಮತು ೈ0ಕ
ಸಂಪಕ2 ೊಂದಲು ಾನು ಅವಳನು ಒ#ಾ5ಸು ೆ. ಎಂದ7ೆ ಸುಳ89-
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:ೕ 2 ೇ* ಮತು ;7ೇಂದ< ೇ* ಇವ)$ೆ =ೕ > ವ?2 "ಾ* ಇದು.ದ)
. ಂದ
ಅವರು ಆ=ೕ@ನA ೆಚುC ಇರು ರAಲ ಎಂದ7ೆ ಸುಳ89. ಅವರು -ೆD$ೆE
ಆ=ೕ@$ೆ ಬಂದು =ೕ > ವ?2$ೆ ೋಗು ದ.ರು, -ೆD$ೆE 5ಂದ
ಸಂ"ೆಯವ7ೆ$ೆ ಾನು ಒಬG ೇ HೇಂಬIನA ಇರು ೆ. ಎಂದ7ೆ ಸುಳ89.
ಾ ಯು ಒJK ಆತKಹ#ೆ($ೆ ಪ<ಯ *ದ.ಳ8 ಎಂದ7ೆ ನನ$ೆ $ೊ ಲ. ನನ
:ರುಕುಳ #ಾಳLಾರ ೇ ಅವಳ8 ಆತKಹ#ೆ($ೆ ಪ<ಯ *ದ.ಳ8. ಆ %ಾಲ%ೆM
ಾ ೇ ಅವD$ೆ N:#ೆO %ೊP*ದು. ಅಲ ೇ ಅವD$ೆ =Qಾ2 %ೊಡದಂ#ೆ
ತ&ೆ ೆ.ೕ ೆಂದ7ೆ ಸ)ಯಲ. ಅವಳ8 %ೆಲಸ%ೆM 7ಾSೕ ಾJ %ೊಡಲು
ಬಂ ಾಗ ಾನು ಅದನು T7ಾಕ)* ಸೂ #ೋ)* -ೆದ)* ಅವಳ
ಕ&ೆ5ಂದ UಾA ಾಖLೆಗಳ JೕLೆ ಸ0 ಪ&ೆದು%ೊಂP ೆ.ೕ ೆಂದ7ೆ ಸುಳ89.
ಾ $ೆ ಾನು "ನನ JೕLೆ =Qಾ2 %ೊಡದಂ#ೆ ನನ Wೇ=X$ಾ UಾA
%ಾಗದಗಳ JೕLೆ ಸ0 ಪ&ೆದು%ೊಳ89 ೆ.ೕ ೆಂದು" ೇD ೆ. ಎಂದ7ೆ ಸುಳ89.
ಾನು ಾ ಸ0 YಾPದ UಾA %ಾಗದಗಳನು
ದುರುಪ ೕಗಪP*%ೊಂಡು S. .ಎ. ಸೃ[X*%ೊಂP ೆ. ಎಂದ7ೆ ಸುಳ89.
S. .ಎ. Qಾರ ಮುಂ ೆ ೋಟ7ೈ@ ಆ ೆ ಎಂದು ಈಗ ನನ$ೆ
ೆನ^ಾಗು ಲ. ೋಟ7ೈ@ Yಾಡಲು ಾ . ನನ ಸ0ೕದ) ಮತು
ಾ ಯ ಪರ ಾ ಒಬG 0)ಯ ವ(: ಸ ಾ ಬಂ ದ.ರು. T_ಾ ೆ P-4
`. .ಎ. ವನು ಾ YಾP ೆ.ೕ ಇಲ] ಮತು Qಾವ ೇ ೋಟ) ಮುಂ ೆ
ಅದನು ೋಟ7ೈ@ YಾPಲ ಎಂದ7ೆ ಸುಳ89. T_ಾ ೆ P-4 ರA ಬು?
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ಎಂa< YಾP ಾ.7ೋ ಇಲbೕ ನನ$ೆ $ೊ ಲ. ೋಟ) ಮುಂ ೆ ಾವ
ಆಧ)ಸುವಂ#ೆ T_ಾ ೆ P-4 S. .ಎ. ಬು? ಎಂa< ಆ ಲ ಮತು ಅಂತಹ
S. .ಎ. ೋಟ7ೈ@ ಸ ಾ ಆ ಲ. ಎಂದ7ೆ ಸುಳ89. ಆ ನ ಾ ಯನು
ೋಟ7ೈ@ Yಾಡುವ %ಾಲ%ೆM Qಾವ ೇ ವ:ೕಲರು ಗುರು *ಲ. T_ಾ ೆ
P-4 ರAಯ ದು.ಪPಗಳನು ೋಟ) ಗುರು * ಅವ ಗD$ೆ NಕM ರುಜು
ಾ: ಾ.7ೋ ಇಲbೕ ನನ$ೆ $ೊ ಲ. ೋಟ7ೈ@ Yಾಡುವ ಪದe
ನನ$ೆ $ೊ ಲ. T_ಾ ೆ P-4 ಾವ ಸೃ[X*ದ ಾಖLೆ ಇದು. ಆ
%ಾರಣ%ಾM ೋಟ)ಯA ದು.ಪP YಾPದ ಕ&ೆ NಕM ರುಜು ಾ:ಲ
ಎಂದ7ೆ ಸ)ಯಲ. ಈಗ #ೋ)*ದ ಅ=ಡ;gನು ಾವ %ೆ.ಇ.`. ಮುಂ ೆ
hೕಟIನA ೆಸರು ಬದLಾವiೆ Yಾಡುವ %ಾಲ%ೆM
ಾಜರುಪP* ೆ.ೕ ೆಂದ7ೆ Tಜ. ಾಖLೆಯನು T_ಾ ೆ -18 ಎಂದು
ಗುರು ಸLಾ5ತು."
(underlined by me)
17. In the backdrop of these aspects, nothing is forthcoming
from the evidence of D.W.1 as to how the defendant No.4 was
able to mobilise Rs.5,25,000/- and to pay the same to the
plaintiff. In this regard, though the learned counsel for the
appellants invited the attention of the Court to xerox copy of the
receipt dated 29.03.2005 (Document No.1) filed under Order XLI
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Rule 27 of CPC in I.A.2/2014, however, the said document is a
xerox copy and not an original one and therefore the said
document cannot be accepted as additional evidence in
I.A.2/2014. Undisputedly, D.W.4 was not examined to prove the
transfer of Rs.5,25,000/- by defendant No.4 to the plaintiff,
when particularly entire sale consideration is paid in cash as
averred by the defendants and further, based on the version of
defendant No.1, father of defendant No.4 was also not examined
by the defendants with regard to finding the source of
Rs.5,25,000/-. No document has been produced by defendant
No.4 as to payment Rs.5,25,000/- in her IT returns if any, filed
during the financial year 2004-05 and therefore, I am of the
opinion, that there is no merit in the submission made by the
learned counsel for the appellants as to presumption provided
under Section 85 of the Evidence Act. The Trial Court rightly
arrived at the conclusion that the plaintiff proves that the
General Power of Attorney dated 29.03.2005 is a fabricated and
forged document.
18. Nextly, in so far as the argument advanced by the learned
counsel for the appellants with regard to issue No.3 whether the
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suit is not properly valued and court fee paid is insufficient, on
careful consideration of Section 24(b) of the Karnataka Court-
fees and Suits Valuation Act, 1958 and the relief sought for by
the plaintiff is to declare that the General Power of Attorney
dated 29.03.2005 and Sale Deed dated 30.03.2005 are null and
void and as such, the plaintiff has properly paid the court fee in a
sum of Rs.34,875/- and therefore, the finding recorded by the
Trial Court is just and proper and I do not find any acceptable
ground to interfere with the finding recorded by the Trial Court.
19. Hence, the points for consideration referred to above,
favours the plaintiff and in the result the Regular First Appeal is
dismissed as devoid of merits.
20. Consequently, for the reasons stated above, I.A.1/2014
does not survive for consideration. I.A.2/2014 is dismissed.
SD/-
(E.S.INDIRESH)
JUDGE
