the Bar and perused the records. The Court has also
31. The following points arise for consideration:
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ii. "Whether the appellant in RFA.No.451/2018 has
established the possession over 'B' schedule property
based on the registered sale deeds dated 27/02/2013?"
iii. "Whether the appellant in RFA.No.721/2018 has
established the possession over 'C' schedule property
based on the registered sale deeds dated 27/02/2013?"
32. There is no dispute that M. Srinivasa Reddy was the
owner of the properties and the powers of attorney dated
06.01.1990 and 17.11.1989 at Ex. P2 and P20 respectively,
are executed by M. Srinivasa Reddy and his family members in
favour of P.S Maniyam. Though the contention is raised that,
the power of attorney dated 06.01.1990 is cancelled by M.
Srinivasa Reddy, vide Cancellation Deed dated 12.03.1990 at
Exhibit-D15, the factum of alleged service of notice cancelling
the power of attorney is not established. Exhibit-D15 the
alleged Cancellation Deed does not bear the signature of the
attorney/agent. No document is produced to hold that the
notice cancelling the power of attorney is served on the agent.
33. Though the affidavit dated 12.03.1990 is marked
at Exhibit-D75, to contend that the power of attorney dated
06.01.1990 is cancelled, what is required to be noticed is that,
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the notice dated 27.02.1990 referred to in the said affidavit,
said to have been issued to the power of attorney holder by
the principal, cancelling the power of attorney is not produced.
The Exhibit-D75 is the affidavit by the power of attorney
holder, wherein, he has sworn to the affidavit stating that
notice dated 27.02.1990 is served on him and the power of
attorney is cancelled.
34. It is relevant to notice that, the said power of
attorney holder who is said to have sworn to the affidavit on
12.03.1990 at Exhibit-D75 is not examined. Neither the notice
nor the acknowledgement for having served the notice
cancelling the general power of attorney is produced. A mere
affidavit of the agent that the power of attorney was cancelled
by issuing the notice, is not a valid proof of alleged
cancellation of power of attorney, when the principal or the
agent are not examined.
35. This being the position, this Court is of the view
that the affidavit by the Power of Attorney marked at Exhibit-
D75 is not an evidence in the eye of law to hold that power of
attorney dated 06.01.1990 was duly cancelled.
36. Thus, the Court is of the view that, when the sale
deeds were executed in favour of the plaintiffs, there were
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valid general powers of attorney in favour of P.S Maniyam who
has executed registered sale deeds in favour of the plaintiffs.
37. Next question is; "Whether the said powers of
attorney executed in favour of P.S Maniyam require
registration as urged by the learned Senior counsel as well as
the learned counsel for other appellants?"
38. The Court has considered the ratio in M. S.
Ananthamurthy (supra).
39. As can be seen from the aforementioned judgment,
one Muniyappa @ Ruthappa was the owner of the property
and he had developed the property and formed plots. On
04.04.1986, Muniyappa @ Ruthappa, who had executed a
general power of attorney in favour of A. Saraswathi had also
entered into an agreement for sale with A. Saraswathi, who
was the power of attorney holder of Muniyappa @ Ruthappa.
The power of attorney executed in the said case is also
extracted in the said judgment. It is noticed that the said
power of attorney was not a power of attorney coupled with
interest.
40. The agreement for sale dated 04.04.1986 also
contained a recital that the vendor has transferred the
possession of the property to the purchaser/the power of
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attorney holder. As noticed, the purchaser was also the power
of attorney holder in the said case.
41. It is also noticed from paragraph No.7 of the said
judgment that the power of attorney was duly notarised and
on 30.01.1997, the original owner who had executed the
power of attorney, died. After his demise, on 01.04.1998, the
power of attorney holder executed a registered sale deed in
respect of the property covered by the said power of attorney
in favour of her son for a consideration of Rs.84,000/-. The
said sale deed is duly registered apparently after the death of
the principal.
42. In the background of these facts, the Apex Court
has come to the conclusion that the agreement for sale dated
04.04.1986 and the power of attorney dated 04.04.1986 and
the subsequent sale deed by the power of attorney holder in
favour of her son after the demise of the principal do not
convey valid title in favour of the purchaser.
43. While answering the contention that the power of
attorney in the aforementioned case was an agency coupled
with interest, the Apex Court held that such contention cannot
be accepted as the power of attorney is not duly registered.
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Thus, it is evident that the Apex Court did not hold that every
power of attorney authorising alienation requires registration.
44. In SURAJ LAMP (supra), the Apex Court did not
lay down a law that, every power of attorney authorising sale
of property requires registration. In the said case, the Apex
Court was dealing with a situation where the property was
allegedly sold and title was allegedly conveyed based on power
of attorney without a registered sale deed in favour of the
purchaser. Thus, the ratio in the said judgment has no
application to the present case as there are registered sale
deeds in favour of the plaintiffs. The sale deeds are executed
by the power of attorney holder who acted as an agent but not
as an owner based on the affidavits.
45. Admittedly, in the instant case, the powers of
attorney were executed in favour of one P.S. Maniyam who is
not the purchaser of the property. The power of attorney
executed in favour of P.S. Maniyam did not extinguish the
principal's title and interest over the property. The powers of
attorney under scrutiny did not create any interest in the
property in favour of the agent. It only enabled the attorney
to alienate the property in addition to manage the property.
By accepting the agency, the attorney was acting as per the
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instructions of the principal, on behalf of the principal. Such
power of attorney cannot be construed as having created any
interest in the property in favour of the attorney/agent.
46. Pursuant to the power of attorney, the agent, P.S.
Maniyam has executed sale deed dated 19/08/1991 at Ex.P1
and the said sale deed is duly registered. P.S. Maniyam has
not executed a sale deed in his favour. P.S. Maniyam has
executed a sale deed in favour of a third parties namely the
plaintiffs No.1 and 2.
47. Learned Senior Counsel referring to the affidavit
marked at Ex.P.3 urged that, in the said affidavit, the original
owner M.Srinivasa Reddy and his family members have made
a statement on oath stating that, after executing the power of
attorney, they have sold the property to the purchaser P. S.
Maniyam i.e., the agent/power of attorney holder and it is also
stated that the power of attorney executed by them is
irrevocable.
48. It is to be noticed that the power of attorney dated
06.01.1990 marked at Ex.P.2 in respect of 'A' schedule
property does not speak about any interest being created in
favour of the attorney or the title being conveyed to the
attorney. Likewise, the power of attorney dated 17.11.1989 in
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respect of 'C' schedule property marked at Ex.P.20, does not
speak about creating an interest in the immovable property in
favour of the power of attorney holder P. S. Maniyam.
49. In the aforementioned facts, the Court is of the
view that, the powers of attorney dated at Ex.P.2 dated
06.01.1990 and at Ex.P.20 dated 17.11.1989 do not require
registration as the said powers of attorneys do not create any
interest in favour of the attorney in respect of any immovable
property.
50. The statement in the affidavit at Ex.P.3 that, the
property sold to P. S. Maniyam does not make Maniyam the
owner of the property, and said P. S. Maniyam has not sold
the property to the plaintiffs in his capacity as the owner, but
has sold the properties in the capacity of an agent of the
owners. Hence, the sale deed in favour of the plaintiffs by P. S.
Maniyam are valid sale deeds, as the power of attorney in
favour of P. S. Maniyam is not disputed by the owners and as
already held, the powers of attorney are not cancelled as
required under law.
51. It is also noticed that as far as 'B' schedule property
is concerned, there is a decree in O.S 6532/2004 for specific
performance. The parties to the said decree have not assailed
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the judgment and decree in the said suit. Thus, the decree
has attained finality. Pursuant to the decree for specific
performance, sale deed is executed on 24.09.2009. This sale
is prior to the sale in favour of the defendants.
52. Though the defendants urge that they are not
parties to the decree and decree does not bind them, what is
required to be noticed is, the defendants are not necessary
parties to the decree as they had not acquired any right over
the property when the decree was passed or when the sale
deed was executed in favour of the plaintiff No.2 in respect of
'B' schedule property.
53. Learned Senior counsel for the appellant in RFA
No.721/2018 and learned counsel for the appellants in the
remaining two appeals also urged that the suit is defective for
want of appropriate relief of declaration and possession and on
this count itself the suit is to be dismissed.
54. Reliance is placed on the judgment of the Apex
Court in Anathula Sudhakar vs. P. Buchi Reddy
(Dead) by L.Rs and Others9. The Court has considered
the said judgment. In paragraph No.17 the Apex Court has
held as under:-
AIR 2008 SC 2033
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"17. To summarise, the position in regard to suits for
prohibitory injunction relating to immovable property, is
as under:
(a) Where a cloud is raised over the plaintiff's title and he
does not have possession, a suit for declaration and
possession, with or without a consequential injunction, is
the remedy. Where the plaintiff's title is not in dispute or
under a cloud, but he is out of possession, he has to sue
for possession with a consequential injunction. Where
there is merely an interference with the plaintiff's lawful
possession or threat of dispossession, it is sufficient to
sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only
with possession, normally the issue of title will not be
directly and substantially in issue. The prayer for
injunction will be decided with reference to the finding on
possession. But in cases where de jure possession has to
be established on the basis of title to the property, as in
the case of vacant sites, the issue of title may directly and
substantially arise for consideration, as without a finding
thereon, it will not be possible to decide the issue of
possession.
(c) But a finding on title cannot be recorded in a suit for
injunction, unless there are necessary pleadings and
appropriate issue regarding title [either specific, or
implied as noticed in Annaimuthu Thevar (supra)]. Where
the averments regarding title are absent in a plaint and
where there is no issue relating to title, the court will not
investigate or examine or render a finding on a question
- 23 -
of title, in a suit for injunction. Even where there are
necessary pleadings and issue, if the matter involves
complicated questions of fact and law relating to title, the
court will relegate the parties to the remedy by way of
comprehensive suit for declaration of title, instead of
deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding
title, and appropriate issue relating to title on which
parties lead evidence, if the matter involved is
simple and straightforward, the court may decide
upon the issue regarding title, even in a suit for
injunction. But such cases, are the exception to the
normal rule that question of title will not be decided
in suits for injunction. But persons having clear title
and possession suing for injunction, should not be
driven to the costlier and more cumbersome
remedy of a suit for declaration, merely because
some meddler vexatiously or wrongfully makes a
claim or tries to encroach upon his property. The
court should use its discretion carefully to identify
cases where it will enquire into title and cases
where it will refer to plaintiff to a more
comprehensive declaratory suit, depending upon
the facts of the case."
(Emphasis supplied)
55. From the ratio laid down in the aforementioned
judgment, it is noticed that, in case there is a cloud over the
plaintiffs' title or the possession of the property, it is
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necessary for the plaintiffs to file a comprehensive suit for
declaration of title and injunction, or declaration and
possession if the plaintiff is not in possession.
56. The aforementioned judgment does not mandate
that in all circumstances the plaintiff is required to file a suit
for declaration and injunction and suit for injunction without
appropriate declaratory relief is not maintainable. It broadly
indicates as to when the appropriate relief of declaration has
to be sought and appropriate relief of possession has to be
prayed by the party to the proceedings.
57. The question is; "Whether the plaintiffs in this case
were required to file a suit for declaration and injunction
merely because the sites were vacant when the suit was
filed?" The Court is of the view that the judgment refer does
not lay down the ratio that in every case when the suit is in
respect of a vacant site, there has to be an appropriate relief
of declaration and injunction.
58. The paragraph No.17(b) of the aforementioned
judgment would clearly indicate that even in a suit for
injunction, the Court may incidentally refer to the question of
title, in case, the case is simple and straightforward.
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59. For the aforementioned reasons, the Court is of the
view that, the contentions that the plaintiffs were required to
seek declaration of title and the suit is defective for the
aforementioned purpose cannot be accepted. Merely because
there is interference by the defendants in each and every case,
the plaintiffs are not required to seek declaration of title.
60. The appellants with reference to the averments
made in the plaint urged that, the possession of the appellants
over the suit schedule properties is admitted by the plaintiffs.
The Court does not find merit in the said contention. In the
plaint, it is averred that the defendants are making attempts
to put wall in the property by dividing the same into three
parts. Said averment by itself cannot be interpreted to say
that the possession is with the defendants. Since the major
portion of the suit property is a vacant site with a small shed
in one portion of the property, one cannot jump into the
conclusion that the possession is not with the plaintiffs. The
Court has to consider the overall evidence placed on record.
61. The suit property is by and large a vacant land and
the shed is constructed in the suit property. Records would
indicate that electricity connection to the said shed is in the
name of the plaintiffs.
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62. Though it is urged on behalf of the appellants that,
the identification of the property is not established with
reference to the sale deeds produced by the plaintiffs and the
description of the property provided in the powers of attorney,
said contention has no merit. Admittedly, both plaintiffs and
defendants are claiming under same vendors. It is not the
case of the defendants that the vendors have sold different
properties to the plaintiffs and different properties to the
defendants. Moreover, the description of the properties shown
in the power of attorney and the sale deeds do match.
63. It is also relevant to notice that the plaintiffs No.1
and 2 have purchased the property under three registered sale
deeds referred to above. Thus, there is no dispute relating to
the identification of the property between the plaintiffs.
64. It is also relevant to notice that the boundaries
mentioned in the two sale deeds pertaining to schedule 'A' and
schedule 'C' do match and they clearly indicate that they are
adjoining to each other.
65. As far as 'B' schedule property, the subject matter
of the third sale deed is concerned, it is the sale deed
executed pursuant to the decree in O.S 6532/2004 passed by
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the competent Civil Court. The said sale deed is also duly
registered.
66. Defendant No.3 claims title over 'B' schedule
property. Admittedly, when the property was sold to
defendant No.3 by M. Srinivasa Reddy and his family
members, there was a sale deed in favour of Smt. Shyla
Sheshadri way back in the year 1989. Though it is urged that
the deed of assignment in favour of the plaintiff No.2 by Smt
Shyla Sheshadri is not registered for having allegedly
conveyed title and possession, pursuant to the decree based
on the assignment deed, decree for specific performance is
granted and the registered sale deed is duly executed on
24.09.2009. Thus, assuming that the assignment deed
required registration and was not duly registered, the defect if
any, is cured pursuant to the registered sale deed.
67. In addition to that, as far as identification of the
property is concerned, there is no dispute that, both plaintiffs
and defendants claim title over the suit schedule properties
based on their respective title deeds. Thus, the contention
that the sketch is not annexed along with powers of attorney
to identify the property sold by the powers of attorney holder
is of little consequence.
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68. The next question is, "Whether the plaintiffs are
able to establish possession over the properties?"
69. In the instant case, both the parties have produced
the photographs to show the features of the suit schedule
property. The Court is of the view that identification of the
property is not in dispute, as the photographs produced before
the Trial Court are the photographs pertaining to the suit
schedule properties. Substantial portion of the suit schedule
property is the vacant land and in one portion there is a small
shed. Plaintiffs claim that they constructed the shed and got
electricity connection. None of the defendants claim that he
constructed the shed in the suit schedule property.
70. Though the contention is raised with reference to
change of katha in the name of defendants, it is to be noticed
that said documents cannot establish title and possession.
The properties are already transferred in the name of the
plaintiffs and there cannot be any change of katha without
notice to the plaintiffs. There is no dispute that, in the portion
of the suit schedule property, a shed is located. Though, the
plaint averments would indicate that the defendants made
attempts to make three separate parts in the suit schedule
property, that by itself would not indicate that the plaintiffs
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have lost possession over the schedule property. The fact that
there is electricity connection to the shed in the suit schedule
property would clearly demonstrate that the plaintiffs are in
possession of the suit schedule property.
71. Apart from that, the suit schedule property is by
and large vacant. Thus, even if it is assumed that, there is an
attempt by the defendants to enter upon the property and put
the wall in the property dividing the property into three parts,
it appears from the overall appreciation of the evidence on
record that such an attempt later did not fructify and they
were not able to dispossess the plaintiffs. That being the
position, the Court is of the view that the plaintiffs have
established possession of the property.
72. In the light of the aforementioned findings, the
Court is of the view that, the contention that the plaintiffs are
not in possession of the property and the suit without relief of
declaration of title and possession is not maintainable cannot
be accepted.
73. It is urged on behalf of the appellants that the
properties in question have been converted into non-
agricultural use. And that being the position, there cannot be
any reference to the Survey Number while mentioning the
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Katha Number. If, for any reason the Survey Number is also
mentioned in the Katha Number after conversion, that does
not mean that the sale deed in favour of the plaintiffs is
invalid.
74. This Court does not find any reasons to interfere
with the impugned judgment and decree. The Trial Court has
recorded valid reasons for holding that the plaintiffs have
established the possession over the suit properties. Hence,
the following:
ORDER
Appeals are dismissed. No order as to costs.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
brn/chs.
