[Cites 12, Cited by 0]
Karnataka High Court
S Hemantha Rao vs H Inbavalli on 27 February, 2026
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RFA No. 60 of 2012
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL NO. 60 OF 2012 (DEC)
BETWEEN:
1. S. HEMANTHA RAO
S/O SHIVAJI RAO
AGED ABOUT 40 YEARS
NO.16/1, 8TH CROSS
DASARAHALLI MAGADI ROAD
BANGALORE-560 079.
...APPELLANT
(BY SRI. S.K. ACHARYA, ADVOCATE FOR
SRI. VIGNESHWARA .U, ADVOCATE)
AND:
1. H. INBAVALLI
W/O K. HARIKRISHNAN
Digitally
signed by AL AGED ABOUT 64 YEARS
BHAGYA
Location: 2. H. RAVINCHANDRAN
HIGH COURT
OF S/O K. HARIKRISHNAN
KARNATAKA AGED ABOUT 45 YEARS
3. SHANKAR .H
S/O K. HARIKRISHNAN
AGED ABOUT 44 YEARS
ALL ARE R/AT MATADAHALLI
FURTHER EXTN., 1ST CROSS
R T NAGAR, BANGALORE-32.
4. S. RAGHAVNEDRA
S/O S. SRINIVAS
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RFA No. 60 of 2012
HC-KAR
MAJOR
5TH MAIN, 3RD CROSS
M C LAYOUT, VIJAYANAGAR
BANGALORE-560 040.
5. S. SAKKUBAI
W/O H.M. SHIVALINGAIAH
MAJOR
NO.1025/A, 12TH MAIN, M C LAYOUT
VIJAYANAGAR, BANGALORE-560 040.
6. SAMPATH RAJ
S/O JAITMALGI
MAJOR
NO.45, MAHAJAN PROVISION STORE
VENKU SAHOJI LANE CROSS
CHICKKAPETE, BANGALORE-53.
...RESPONDENTS
(BY SRI. V. JAVAHAR BABU, ADVOCATE FOR C/R1 - R3
V/O/DATED: 01.07.2016 APPEAL AGAINST R4 & R6
DISMISSED)
THIS RFA IS FILED U/SEC.96, R/W, O-41, RULE-1 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
01.10.2011 PASSED IN O.S.4459/2003 ON THE FILE OF THE
XLIII-ADDL. CITY CIVIL AND SESSIONS JUDGE, CCH-44,
BANGALORE, PARTLY DECREEING THE SUIT FOR THE
DECLARATION.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
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RFA No. 60 of 2012
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ORAL JUDGMENT
The captioned appeal is preferred by defendant No.4,
calling in question the legality and correctness of the
judgment and decree rendered in O.S.No.4459/2003,
whereby the suit instituted by the plaintiffs has been
decreed and defendant Nos.1 to 4 have been directed to
hand over vacant possession of Schedule 'A' and Schedule
'C' properties to the plaintiffs within two months from the
date of judgment.
2. For the sake of convenience and to avoid
confusion, the parties are referred to as per their ranking
before the Trial Court.
3. The plaintiffs instituted suit in
O.S.No.4459/2003 asserting right, title and interest over
the suit schedule properties through defendant No.2. It is
not in dispute that the suit schedule properties originally
belonged to one G. Kempaiah, who was arrayed as
defendant No.4 in the suit. According to the plaintiffs, the
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said original owner executed a registered General Power of
Attorney dated 15.01.1982 in favour of defendant No.3,
authorising him to deal with and alienate the suit schedule
properties.
4. It is the further specific case of the plaintiffs
that defendant No.3, acting under the authority conferred
by the aforesaid General Power of Attorney, executed
another General Power of Attorney dated 02.07.1984 in
favour of defendant No.2 in respect of the very same
properties, thereby constituting what is described as a
sub-agency. On the strength of this subsequent General
Power of Attorney, the plaintiffs claim to have derived
right and title over the suit schedule properties.
5. Thus, the entire foundation of the plaintiffs'
claim rests upon two documents, namely: (i) the original
General Power of Attorney dated 15.01.1982 allegedly
executed by defendant No.4 in favour of defendant No.3;
and (ii) the subsequent General Power of Attorney dated
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02.07.1984 said to have been executed by defendant No.3
in favour of defendant No.2, through whom the plaintiffs
trace their alleged title.
6. The plaintiffs further pleaded that the General
Power of Attorney dated 27.07.1984 executed by
defendant No.3 in favour of defendant No.2 was not a
mere agency simpliciter, but one coupled with interest,
inasmuch as defendant No.2 is stated to have paid a sum
of Rs.8,000/- towards sale consideration in respect of the
suit schedule property. On that premise, it was contended
that the said power of attorney created an enforceable and
irrevocable interest in favour of defendant No.2.
7. It is also their case that defendant No.2, in
turn, executed another General Power of Attorney dated
21.09.1984 in favour of plaintiff No.1, which too is pleaded
to be coupled with interest, on the ground that defendant
No.2 received a sum of Rs.16,500/- from plaintiff No.1
towards sale consideration. In addition, defendant No.2 is
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said to have executed an affidavit dated 26.10.1984
confirming the transaction and to have delivered
possession of the suit schedule property to plaintiff No.1.
8. Plaintiff No.1 has specifically averred that in the
year 1985, she constructed a residential house with RCC
roofing over Schedule 'A' property at her own cost and has
been in peaceful possession and enjoyment of the
property ever since, asserting herself to be the absolute
owner. It is further pleaded that electricity connection was
obtained in respect of the constructed premises, thereby
evidencing settled possession.
9. The plaintiffs also asserted that subsequent to
construction, portions of the suit schedule property were
let out to tenants and rental income was being derived
therefrom. On these pleadings, the plaintiffs sought to
establish long, continuous and settled possession over the
suit schedule property, coupled with a claim of title traced
through defendant No.2.
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10. The gist of the plaintiffs' grievance is directed
against defendant No.1, who is stated to be the
son/nephew of defendant No.2 - Sakku Bai, and who was
pursuing a BCA course during the relevant period.
According to the plaintiffs, in or about the year 2002,
defendant No.1 approached them seeking permission to
occupy one room in Schedule 'A' property for his
residential use, citing his educational needs. On account of
close relationship and out of sympathy, the plaintiffs claim
to have permitted defendant No.1 to occupy one room in
the residential house.
11. The plaintiffs, however, allege that such
permissive occupation was subsequently misused. It is
their specific case that defendant No.2, with an ulterior
motive to assert rights over the suit schedule properties,
acted in collusion with defendant No.1. Taking advantage
of the permissive entry, defendant No.1 is said to have
secured possession of one room and thereafter asserted
hostile claims over the property.
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12. The plaintiffs further aver that they later came
to know that defendant No.2 had executed a registered
sale deed conveying Schedule 'C' property in favour of
defendant No.1. According to them, knowledge of this
transaction was gained only upon receipt of summons in
O.S.No.8594/2002, instituted by defendant No.1 seeking a
decree of permanent injunction simpliciter. It is stated that
the said suit did not culminate in adjudication on merits,
as defendant No.1 filed a memo before the Court stating
that he had alienated the suit property in favour of
defendant No.4, and on the basis of such memo, the suit
came to be withdrawn/dismissed.
13. On the basis of these averments, the plaintiffs
contend that the subsequent transactions are the result of
collusion and are not binding on them. They assert that
the initial entry of defendant No.1 being permissive, he is
estopped from asserting any independent right, title or
interest adverse to the plaintiffs.
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14. Though defendant Nos.1 to 3 were duly served
with summons, they remained absent and did not contest
the proceedings. Defendant No.4 alone entered
appearance and filed a detailed written statement.
Defendant No.4, claiming to be a subsequent purchaser,
denied the title set up by the plaintiffs and asserted that
he is the absolute owner of the suit schedule property.
15. Defendant No.4 traced his title through
defendant No.1. It was specifically contended that
defendant No.1 had purchased the suit schedule property
from defendant No.2 under a registered sale deed dated
08.08.2002 and, thereafter, conveyed the property in
favour of defendant No.4 under a registered sale deed
dated 03.09.2003. On the strength of the said
conveyance, defendant No.4 claimed lawful title and
possession. It was also contended that in the absence of a
specific and substantive relief sought against defendant
No.4, the suit as framed was not maintainable.
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16. On the basis of the rival pleadings, the Trial
Court framed necessary issues and called upon the parties
to lead evidence. The plaintiffs and defendant No.4
adduced both oral and documentary evidence in support of
their respective claims, including the General Power of
Attorney documents, affidavits, sale deeds and other
revenue and possession-related records.
17. Upon appreciation of the entire oral and
documentary evidence on record, the Trial Court partly
decreed the suit. The Court declared that the registered
sale deed dated 08.08.2002 executed by defendant No.2
in favour of defendant No.1 and the subsequent registered
sale deed dated 03.09.2003 executed by defendant No.1
in favour of defendant No.4 are null and void and not
binding on the plaintiffs. Consequentially, the Trial Court
held that the plaintiffs are entitled to recovery of
possession of Schedule 'A' and Schedule 'C' properties and
directed defendants No.1 to 4 to hand over vacant
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possession of the suit schedule properties within the
stipulated time.
18. Aggrieved by the judgment and decree passed
by the Trial Court, it is only defendant No.4 who has
preferred the present appeal. Defendant Nos.1 to 3 have
not chosen to assail the decree and have, in effect,
allowed the findings recorded by the Trial Court to attain
finality insofar as they are concerned.
19. The learned counsel appearing for defendant
No.4, reiterating the grounds urged in the memorandum
of appeal, vehemently contended that the entire decree
rests on a fundamentally erroneous understanding of the
legal effect of transactions based on General Power of
Attorney. Placing strong reliance on the judgment of the
Hon'ble Supreme Court in Suraj Lamp & Industries
Private Limited vs. State of Haryana1, it is submitted
that a General Power of Attorney does not convey title nor
create any interest in immovable property. Referring
AIR 2012 SC 206
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specifically to Ex.P-4, namely the GPA dated 21.09.1984
executed by defendant No.2 in favour of plaintiff No.1,
learned counsel would contend that even assuming its due
execution, such a document by itself cannot operate as a
conveyance of ownership. In the absence of a registered
sale deed executed by the true owner, the plaintiffs could
not have asserted title or sought declaratory and
consequential relief of possession.
20. Learned counsel further drew attention to the
earlier GPA dated 15.01.1982 allegedly executed by the
original owner, G. Kempaiah, in favour of defendant No.3.
It is contended that a plain reading of the said document
discloses that it is a simple power of attorney authorising
defendant No.3 only to execute sale deeds on behalf of the
principal and does not create any proprietary interest in
the property. In the absence of any clause conferring
independent interest, defendant No.3 remained a mere
agent and could not claim any right in his own capacity.
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21. Proceeding on that basis, it is argued that
defendant No.3 had no authority to create a sub-agency in
favour of defendant No.2, nor to receive Rs.8,000/-
purportedly as sale consideration and treat the transaction
as one "coupled with interest." It is submitted that only
the principal, namely Kempaiah, could have created an
agency coupled with interest within the meaning of Section
202 of the Indian Contract Act, 1872, and that the alleged
chain of sub-agencies is legally unsustainable.
22. In support of this submission, reliance is placed
on Section 190 of the Indian Contract Act, 1872, which
stipulates that an agent cannot lawfully delegate acts
which he has expressly or impliedly undertaken to perform
personally, unless such delegation is authorised by
contract, trade usage or necessity. It is contended that
there is no material on record to demonstrate that the
original GPA dated 15.01.1982 authorised delegation or
creation of sub-agency. Therefore, the subsequent GPAs
form an invalid foundation for the plaintiffs' claim.
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23. Further reliance is placed on Section 230 of the
Indian Contract Act, 1872, which provides that an agent
cannot personally enforce contracts entered into on behalf
of the principal, nor be personally bound by them, unless
there is a contract to the contrary. It is argued that the
alleged transactions between defendant No.3 and
defendant No.2, and thereafter between defendant No.2
and plaintiff No.1, are not transactions executed by the
principal but are acts of agents purporting to travel
beyond their authority.
24. The learned counsel also assailed the
subsequent sale deed dated 08.11.2002 (Ex.P-13)
executed by plaintiff No.1 in favour of plaintiff No.2,
contending that plaintiff No.1 herself had no lawful title to
convey. In the absence of a valid conveyance from the
true owner, no legal title could have vested in plaintiff
No.1 and, consequently, no title could pass to plaintiff
No.2. It is thus contended that the entire edifice of the
plaintiffs' case is legally untenable.
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25. On these grounds, it is urged that the plaintiffs
neither have title nor legally protectable possessory rights
and, therefore, lack locus standi to challenge the
registered sale deed dated 08.08.2002 executed by
defendant No.2 in favour of defendant No.1 and the
subsequent sale deed dated 03.09.2003 executed by
defendant No.1 in favour of defendant No.4. The learned
counsel would submit that the Trial Court erred in
declaring the said sale deeds null and void and in directing
delivery of possession, and that the impugned judgment
and decree are liable to be set aside.
26. Per contra, the learned counsel appearing for
the plaintiffs stoutly opposed the contentions urged on
behalf of defendant No.4. It is submitted that defendant
No.4 is a pendente lite purchaser and cannot claim any
independent or superior right than that of his vendor.
When defendant Nos.1 and 2, through whom defendant
No.4 traces title, have not chosen to challenge the
judgment and decree of the Trial Court, defendant No.4
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alone cannot be permitted to maintain the present appeal
and re-open issues which have attained finality as against
his vendors.
27. It is further contended that both the plaintiffs
and defendant No.4 admittedly trace their respective
claims through defendant No.2. Therefore, the pivotal
question is whether defendant No.2 had any subsisting
right, title or interest in the property as on the date of
execution of the sale deed dated 08.08.2002 in favour of
defendant No.1.
28. Learned counsel for the plaintiffs drew attention
to Ex.P-2 to Ex.P-5, namely the GPA and affidavit
executed by defendant No.2 in favour of plaintiff No.1 in
the year 1984. It is pointed out that in these documents,
the property is described as a vacant site. It is contended
that defendant No.2, having received the entire
consideration and delivered possession of the vacant site
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under Ex.P-4 and Ex.P-5, had divested herself of
possession as early as in 1984.
29. It is specifically submitted that after obtaining
the GPA and affidavit coupled with delivery of possession,
plaintiff No.1 constructed a residential house over
Schedule 'A' property in the year 1985 from her own
funds. The construction and subsequent enjoyment of the
property are sought to be established through
documentary evidence, including rental agreements
marked as Ex.P-8 to Ex.P-12, which demonstrate that
portions of the property were let out to tenants. These
documents, it is urged, establish long and settled
possession and development of the property by plaintiff
No.1.
30. On this premise, it is argued that defendant
No.2, who had earlier handed over possession of a vacant
site in 1984, could not have subsequently conveyed a
residential house under the sale deed dated 08.08.2002
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(Ex.P-33) in favour of defendant No.1. The recital in the
said sale deed referring to a residential structure
presupposes the existence of such structure. Since the
materials on record indicate that the house was
constructed by plaintiff No.1 after 1984, defendant No.2
had no subsisting right, possession or authority to convey
the property in 2002.
31. Insofar as the reliance placed by defendant
No.4 on Sections 190 and 230 of the Indian Contract Act,
1872 is concerned, learned counsel for the plaintiffs would
submit that there are no specific pleadings in the written
statement laying a foundational challenge on those
grounds. In the absence of specific pleadings and framed
issues, such technical objections cannot be permitted to be
raised for the first time in appeal. It is therefore urged that
defendant No.4, being only a pendente lite purchaser
claiming through defendant No.1, cannot assert any
independent right higher than that of his vendor and
cannot be permitted to defeat the possessory and
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equitable rights of the plaintiffs. On these grounds,
dismissal of the appeal and confirmation of the judgment
and decree are sought.
32. This Court has heard the learned counsel
appearing for defendant No.4 and the learned counsel
appearing for the plaintiffs at considerable length. Upon
anxious consideration of the pleadings, as well as the oral
and documentary evidence available on record, and on
meticulous re-appreciation of the material, the following
points arise for consideration:
(i) Whether the General Power of Attorney
dated 15.01.1982 (Ex.P-1) executed by the original
owner in favour of defendant No.3 conferred
authority to delegate or create a sub-agency, and
consequently, whether the subsequent GPAs
executed by defendant No.3 in favour of defendant
No.2 and by defendant No.2 in favour of plaintiff
No.1, claimed to be agencies coupled with interest,
are valid and enforceable in law?
(ii) Whether the plaintiffs have established
any legally protectable right, title or interest over
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Schedule 'A' and 'C' properties on the basis of the
General Power of Attorney dated 21.09.1984 (Ex.P-
4), affidavit dated 26.10.1984 (Ex.P-5) and other
allied documents, in the absence of a registered
conveyance from the true owner?
(iii) Whether defendant No.4, claiming under
the registered sale deed dated 03.09.2003 as a
pendente lite purchaser and tracing title through
defendant Nos.1 and 2, is entitled to protection in
law and has independent locus standi to maintain
the present appeal in the absence of any challenge
to the decree by defendant Nos.1 and 2?
(iv) What Order?
Findings and Reasons on Point No.(i):
33. Upon careful scrutiny of Ex.P-1, the registered
General Power of Attorney dated 15.01.1982 executed by
the original owner, G. Kempaiah, in favour of defendant
No.3 (Sampathraj), this Court finds that the document
merely authorizes the attorney to execute sale deeds and
to perform incidental and ministerial acts on behalf of the
principal. The recitals do not disclose any intention on the
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part of the principal to transfer or create any proprietary
interest in favour of the attorney. The authority conferred
is representative in character and confined to effectuating
transactions on behalf of the principal. The document does
not evidence any assignment of ownership nor any
transfer of interest in the immovable property as
contemplated under Section 54 of the Transfer of Property
Act, 1882. Therefore, Ex.P-1 is a simple power of attorney
creating an agency within the meaning of Section 182 of
the Indian Contract Act, 1872, and not an agency coupled
with interest under Section 202 of the said Act.
34. Significantly, Ex.P-1 does not contain any
clause authorizing defendant No.3 to appoint a substitute,
nominee or sub-agent. In the absence of such express or
implied authorization, the matter is squarely governed by
Section 190 of the Indian Contract Act, 1872, which
embodies the well-settled principle that an agent cannot
lawfully delegate acts which he has expressly or impliedly
undertaken to perform personally, unless such delegation
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is sanctioned by contract, usage of trade, or necessity. The
maxim delegatus non potest delegare applies with full
force. No material is placed before this Court to show that
the original instrument contemplated delegation, nor is
there evidence of any trade usage or necessity justifying
sub-delegation. Consequently, defendant No.3, being a
mere agent under Ex.P-1, lacked authority to create a
sub-agency in favour of defendant No.2. The alleged GPA
dated 02.07.1984 executed by defendant No.3 in favour of
defendant No.2, even if proved, would be an act beyond
the scope of authority conferred under Ex.P-1 and
therefore legally unsustainable. An agent cannot enlarge
the scope of his authority nor create an independent or
derivative interest in favour of another when the principal
himself has not conferred such power.
35. The contention that the GPA executed in favour
of defendant No.2 was "coupled with interest" on the
ground that a sum of Rs.8,000/- was paid under an
affidavit also does not withstand scrutiny. Section 202 of
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the Indian Contract Act contemplates an agency coupled
with interest only where the agent has himself acquired an
interest in the subject matter of the agency from the
principal. Such interest must be created by the principal
and must be contemporaneous with the creation of the
agency. In the present case, the alleged payment was not
made to the principal, nor is there any document executed
by the principal creating an interest in favour of defendant
No.2. The supposed interest flows from an act of
defendant No.3, who himself was only an agent. An agent
cannot, by unilateral act or by receipt of consideration,
convert a simple agency into one coupled with interest
when the principal has not so intended. Therefore, the
plea of agency coupled with interest is legally untenable.
36. Once it is held that defendant No.3 had no
authority to delegate his powers or to create an agency
coupled with interest, defendant No.2, claiming under such
defective delegation, cannot claim a better or higher
authority than her predecessor. The principle that no
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person can convey a better title than he himself possesses
(nemo dat quod non habet) squarely applies. Defendant
No.2, having derived no lawful interest from the principal,
could not have created a further agency coupled with
interest in favour of plaintiff No.1 under Ex.P-4. The
subsequent GPA dated 21.09.1984 and the affidavit dated
26.10.1984, therefore, stand vitiated at their very
inception, being founded on an unauthorized and invalid
delegation.
37. Further, Section 230 of the Indian Contract Act
reinforces this position by providing that, in the absence of
a contract to the contrary, an agent cannot personally
enforce contracts entered into on behalf of the principal
nor be personally bound by them. In the present case, the
chain of transactions does not emanate from any
conveyance executed by the principal. Instead, it rests
entirely upon successive acts of agents purporting to act
beyond their conferred authority. Such transactions cannot
bind the principal nor create enforceable rights against the
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true owner or persons claiming under a valid registered
conveyance.
38. It is also pertinent to note that under Section
54 of the Transfer of Property Act, 1882, transfer of
ownership in tangible immovable property of the value of
Rs.100/- and above can be effected only by a registered
instrument. A power of attorney, howsoever worded, is not
an instrument of transfer of title. It merely creates a
relationship of principal and agent enabling the agent to
act on behalf of the principal. In the absence of a
registered sale deed executed either by the principal or by
a duly authorized agent acting within the bounds of his
authority, no right, title or interest in immovable property
can pass. The plaintiffs, admittedly, have not produced
any registered conveyance executed by the original owner
in their favour or in favour of defendant No.2.
39. The plaintiffs' reliance on subsequent
construction of a residential house and long possession,
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even if accepted, does not cure the fundamental defect in
title. Possession derived through an invalid or
unauthorized agency cannot mature into lawful ownership
in the absence of a valid conveyance. Construction of a
building, payment of electricity charges, or letting out
portions of the property may at best evidence de facto
possession, but they do not confer de jure title when the
initial entry itself is traceable to an unauthorized
transaction.
40. In view of the foregoing discussion, this Court is
of the considered opinion that the entire chain of General
Power of Attorney transactions, from defendant No.3 to
defendant No.2 and thereafter to plaintiff No.1, is contrary
to the mandate of Sections 190, 202 and 230 of the Indian
Contract Act, 1872, and is also inconsistent with the
requirements of Section 54 of the Transfer of Property Act,
1882. The plaintiffs have therefore failed to establish that
they derived any lawful right, title or interest in the suit
schedule properties through the impugned GPA
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transactions. Accordingly, Point No.(i) is answered in the
Negative.
Findings and Reasons on Point No.(ii):
41. The core question that now arises for
consideration is whether the plaintiffs have established
any legally protectable right, title or interest over Schedule
'A' and 'C' properties on the strength of Ex.P-4 (GPA dated
21.09.1984), Ex.P-5 (affidavit dated 26.10.1984) and
other allied documents, admittedly in the absence of a
registered conveyance executed by the true owner.
42. At the outset, it must be stated that Ex.P-2 to
Ex.P-5 executed by defendant No.2 in favour of plaintiff
No.1 in the year 1984 do not constitute registered
instruments of conveyance within the meaning of Section
54 of the Transfer of Property Act, 1882. As already held
while answering Point No.(i), the very authority of
defendant No.2 to execute such documents is clouded in
view of the prohibition contained in Section 190 of the
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Indian Contract Act, 1872. Therefore, strictly speaking, the
plaintiffs have not established absolute ownership flowing
from a valid registered sale deed executed by the true
owner. Their claim to title, in the strict proprietary sense,
cannot be sustained.
43. However, the enquiry cannot be confined to the
narrow question of formal title alone. The material on
record unmistakably demonstrates that plaintiff No.1 acted
upon Ex.P-4 and Ex.P-5 and was put in possession of what
is consistently described therein as a vacant site. The
recitals in Ex.P-4 and Ex.P-5 assume significance, for they
clearly describe the property as a vacant site as on the
date of execution in 1984. This description is a
contemporaneous declaration attributable to defendant
No.2 herself.
44. The subsequent conduct of the parties and the
documentary evidence produced by the plaintiffs assume
considerable importance. The rental agreements marked
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as Ex.P-8 to Ex.P-12 reveal that portions of a residential
building were let out to tenants by plaintiff No.1. The
property tax receipts produced on record show assessment
of a residential building standing in the name of plaintiff
No.1. Electricity service connection documents further
demonstrate that supply was obtained in respect of a
constructed residential house and that plaintiff No.1 was in
physical occupation and enjoyment thereof. These
documents, though not documents of title, are cogent
indicators of long, open and settled possession coupled
with overt acts of ownership.
45. The evidence thus establishes a clear
transformation of the character of the property. What was
delivered in 1984 was a vacant site. What existed
thereafter, as borne out by consistent documentary
evidence, was a residential house constructed by plaintiff
No.1 from her own resources. There is no pleading or
evidence from defendant No.2 that she constructed any
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such structure after 1984. The superstructure is
demonstrably attributable to the acts of plaintiff No.1.
46. A crucial circumstance arises from the
registered sale deed dated 08.08.2002 executed by
defendant No.2 in favour of defendant No.1. In the said
document, the property is described as a residential
house. This recital stands in direct contradiction to the
earlier documents of 1984 wherein defendant No.2
acknowledged handing over possession of a vacant site. If,
as per Ex.P-4 and Ex.P-5, defendant No.2 had delivered
possession of a vacant site in 1984, and if the residential
structure admittedly came into existence thereafter at the
instance of plaintiff No.1, defendant No.2 could not, in
2002, have conveyed a residential house unless she had
retained possession and constructed it herself an assertion
neither pleaded nor substantiated.
47. The description of the property as a vacant site
in Ex.P-4 and Ex.P-5 operates as a significant admission
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under the Evidence Act against defendant No.2. Having
parted with possession and acknowledged the nature of
the property at that point of time, she is estopped by her
own conduct from asserting a contrary position nearly two
decades later. The doctrine of estoppel by representation
and conduct squarely applies. Persons claiming through
her, namely defendant Nos.1 and 4, cannot claim a higher
or better right than their predecessor in title.
48. Even assuming that the plaintiffs have not
perfected title in the technical sense, the law recognizes
and protects settled possession. Section 38 of the Specific
Relief Act, 1963 empowers the Court to grant perpetual
injunction in favour of a plaintiff to prevent the breach of
an obligation existing in his favour, including an obligation
arising out of lawful possession. Further, Section 5 of the
Specific Relief Act provides that a person entitled to
possession of specific immovable property may recover it
in the manner provided by the Code of Civil Procedure.
More importantly, Section 6 of the Specific Relief Act
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recognizes possessory rights by enabling a person
dispossessed without his consent and otherwise than in
due course of law to recover possession, notwithstanding
any question of title. The scheme of the Act thus makes it
abundantly clear that possession, even independent of
perfect title, is a legally protectable interest.
49. It is a settled principle that a person in settled
and peaceful possession of immovable property cannot be
dispossessed except in accordance with law. Such
possession, if established, is good against the whole world
except the true owner. In the present case, the
disturbance does not emanate from the original owner, G.
Kempaiah. On the contrary, it emanates from defendant
No.2 and persons claiming exclusively through her. When
defendant No.2 herself had divested possession in 1984
and acknowledged the nature of the property, she cannot,
after a lapse of nearly eighteen years, reassert rights
inconsistent with her earlier conduct. Defendant Nos.1 and
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4, who trace their claim solely through defendant No.2,
stand on no better footing.
50. The plaintiffs have thus clearly established that
plaintiff No.1 was in settled, open and continuous
possession of the property; that she constructed a
residential house thereon; and that she exercised acts of
ownership over a considerable period. Though they may
not have established absolute proprietary title in the strict
conveyancing sense, they have unquestionably
demonstrated a legally protectable possessory interest
over the suit schedule properties, particularly the
superstructure erected by plaintiff No.1.
51. In these circumstances, such settled possession
and the superstructure constructed thereon cannot be
disturbed at the instance of defendants who claim under a
person who had already parted with possession decades
earlier. Accordingly, this Court holds that the plaintiffs
have established a legally protectable interest over the
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suit schedule properties to the extent of their settled
possession and the residential structure constructed by
plaintiff No.1. Point No.(ii) is therefore answered in the
Affirmative.
Findings and reasons on Point No.(iii):
52. It is not in dispute that defendant No.4 is a
transferee pendente lite, having purchased a portion of
Schedule 'C' property from defendant No.1 under a
registered sale deed dated 03.09.2003 during the
pendency of the suit proceedings. The record further
discloses that defendant No.2, through whom the chain of
title is traced, did not contest the suit and was placed ex
parte. Defendant No.1, the immediate vendor of defendant
No.4, also neither filed a written statement nor chose to
contest the proceedings. It is also significant that
defendant No.1 had earlier instituted a bare suit for
injunction in O.S.No.8594/2002 against the plaintiffs but
withdrew the same on the premise that he had already
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alienated the property in favour of defendant No.4. These
circumstances assume considerable relevance while
examining the locus standi and the nature of rights, if any,
available to defendant No.4.
53. The principles underlying Section 52 of the
Transfer of Property Act, 1882, embodying the doctrine of
lis pendens, are well settled. During the pendency of any
suit or proceeding in which any right to immovable
property is directly and specifically in question, the
property cannot be transferred so as to affect the rights of
any other party thereto under any decree or order which
may be made therein. A transferee pendente lite is bound
by the result of the litigation. Such a purchaser does not
acquire an independent, indefeasible or superior title;
rather, his rights are entirely subservient to and
dependent upon the rights of his transferor and the
ultimate adjudication of the dispute.
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54. In the present case, defendant No.4 traces title
exclusively through defendant No.1, who in turn claims
under defendant No.2. As already held while answering
the earlier points, defendant No.2 had, as early as in
1984, delivered possession of the property described in
Ex.P-4 and Ex.P-5 as a vacant site to plaintiff No.1. The
subsequent construction of a residential house by plaintiff
No.1 is substantiated by consistent documentary evidence,
including rental agreements, property tax receipts and
electricity records. These materials clearly demonstrate
that plaintiff No.1 altered the character of the property by
constructing a residential house after obtaining
possession.
55. Having divested herself of possession in 1984
and having acknowledged the property as a vacant site at
that point of time, defendant No.2 could not have
conveyed a residential house in 2002 to defendant No.1
unless she had retained possession and constructed the
same, an assertion neither pleaded nor proved. If
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defendant No.2 had no subsisting possession or saleable
interest as on the date of execution of the sale deed dated
08.08.2002, defendant No.1 could not have acquired any
valid title thereunder. Consequently, defendant No.1,
having no valid or subsisting title, could not have
conveyed any better or superior title to defendant No.4
under the sale deed dated 03.09.2003.
56. Further, it has already been held that defendant
No.2 herself claimed only as a sub-agent under defendant
No.3, whose authority to delegate was legally
unsustainable under Section 190 of the Indian Contract
Act, 1872. Thus, the very foundation of the title asserted
by defendant Nos.1 and 4 is vitiated. When the immediate
vendors, namely defendant Nos.1 and 2, have not
challenged the decree for declaration and possession and
have allowed the findings of the Trial Court to attain
finality, a transferee pendente lite cannot assert a higher
or independent right to reopen or unsettle those findings.
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57. It is no doubt true that the plaintiffs have not
established absolute title by producing a registered
conveyance executed by the original owner. However, as
already discussed, they have clearly established settled
and long-standing possessory rights arising from delivery
of possession in 1984 and subsequent construction of a
residential house. Such possessory rights, though not
amounting to perfect title, are legally protectable against
all persons except the true owner.
58. Importantly, the challenge in the present case
is not at the instance of the original owner, G. Kempaiah.
The dispute is between persons claiming derivative rights
through defendant No.2. If defendant No.2 had already
divested herself of possession in 1984, neither she nor her
successors-in-interest can, after a lapse of nearly two
decades, dislodge the plaintiffs' settled possession. The
possessory rights acquired by plaintiff No.1 through
construction of a residential house can be questioned only
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by a lawful and true owner asserting superior title, and not
by persons whose own title is infirm and derivative.
59. In that view of the matter, defendant No.4,
being a transferee pendente lite within the meaning of
Section 52 of the Transfer of Property Act, 1882, stands
exactly in the shoes of defendant No.1. His purchase is
expressly subject to the result of the suit. He cannot
assert an independent or superior right nor seek protection
in derogation of the decree passed by the Trial Court. The
mere fact that he was impleaded and has chosen to file an
appeal does not elevate his status above that of his
transferor.
60. Accordingly, this Court holds that defendant
No.4 has no independent locus standi to maintain the
present appeal so as to defeat the settled possessory
rights established by the plaintiffs. Being a pendente lite
purchaser bound by the doctrine of lis pendens, he is not
entitled to any protection in law beyond the rights
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available to his vendor. The appeal is therefore liable to be
dismissed. Point No.(iii) is answered in the Negative.
Finding on Point No.(iv):
61. For the foregoing reasons, this Court proceeds
to pass the following:
ORDER
Appeal is devoid of merits and accordingly, stands
dismissed.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
CA
List No.: 1 Sl No.: 11
