B.P. Nagaraj vs U.P. Jayaram and Others

N. Kumar, J.—This is plaintiffs Regular First Appeal challenging the judgment and decree of the trial Court, which has dismissed the suit of the plaintiff for declaration and permanent injunction.

For the purpose of convenience the parties are referred to as they referred to in the original suit.

The subject matter of the suit is the site bearing Nos. 345, 346 & 347 carved out of Sy. No. 39/2 having Khatha No. 670 of Nagawara Village, Kasaba Hobli, Bengaluru North Taluk, Bengaluru measuring East to West 78 ft. and North to South 94 ft, which is more particularly described in the schedule to the plaint and hereinafter referred to as the ''suit schedule property''.

The case of the plaintiff is that he is the absolute owner of the suit schedule property. He acquired the same through a registered partition deed dated 18.02.2003 between him and his brother. He is in possession and enjoyment of the suit schedule property from the date of partition and earlier to which he was in joint possession with his brothers. Khatha of the property stands in the name of Late Akkamma, his mother. After the death of his father, his mother acted as head of the joint family. The plaintiff has paid the tax to the Municipal authorities and now to BBMP in respect of the suit schedule property. The defendant Nos. 2 and 3, who are the daughters of the defendant No. 1 during the third week of January 2009 attempted to trespass into the suit schedule property with some rowdy elements in the locality and thus tried to interfere with the plaintiffs peaceful possession and enjoyment of the suit schedule property. Therefore, the plaintiff was forced to file a suit for permanent injunction in OS No. 25132/2009 before the Addl. City Civil Judge, Civil Station, Bengaluru (CCH-12) against the defendant Nos. 2 and 3. In the said suit the defendant Nos. 2 and 3 appeared through defendant No. 1, their GPA Holder, filed written statement alleging that they have purchased the suit schedule property from the plaintiff and his mother Late Akkamma, under the registered sale deed dated 21.08.1990, through defendant No. 1 as GPA Holder of the plaintiff and his mother late Akkamma. They also alleged that plaintiff and his mother have executed GPA on 7.9.1987 by virtue of which the defendant No. 1 has sold the suit schedule property in favour of defendant Nos. 2 and 3 for a sale consideration of Rs. 76,000/-. The plaintiff was shocked by the said allegations made in the written statement. Thereafter, he obtained the certified copy of the said sale deed set up by the defendants.

The plaintiff claiming to be the absolute owner in possession and enjoyment of the suit schedule property has presented the present suit for the relief of declaration and permanent injunction. In the suit, the plaintiff contended that, neither his mother Late Akkamma nor he executed any GPA, affidavit or agreement to sell the suit schedule property in favour of the defendant No. 1 at any point of time whatsoever. The defendant No. 1 is totally a stranger to him and his mother Late Akkamma. Defendant No. 1 appears to have forged and created the GPA and affidavit in his favour purporting to have executed by him and his mother. On the strength of the said GPA he executed nominal sale deed dated 21.08.1990 in favour of defendant Nos. 1 to 3. The said nominal sale deed nor the GPA is binding on the plaintiff as he is not a party to the said documents. The sale deed executed by the plaintiff in favour of the defendant Nos. 1 to 3 does not convey any right, title or interest to the defendant Nos. 1 to 3. Therefore, the plaintiff sought for declaration that he is the owner of the suit schedule property and also for a decree of permanent injunction.

After service of summons, defendants entered appearance through a counsel and filed a common written statement contesting the claim. They contended that the suit is hopelessly barred by limitation and, therefore, they want the suit to be dismissed on that ground alone. They also contended that the suit is hit by the principles of res judicata as the plaintiff has already filed suit O.S. No. 25132/2009. They contend that the plaintiff is not at all in possession of the suit schedule property. Even the boundaries in the schedule of the property as claimed in the plaint do not correspond to the claim of the plaintiff. On the other hand the second and third defendants are in exclusive possession of the property and have all rights, title and interest in the said property. They submit that the suit schedule property comprising residential site numbers 345 and 346 bearing Khata No. 563, situated in Sy. No. 39/2 of Nagavara Village, Kasaba Hobli, Bangalore North Taluk, was purchased by defendants 2 and 3 from the former owners of the property Smt. Akkamma, wife of Late Papanna and her son B.P. Nagaraj represented by their GPA Holder Sri U.P. Jayaram-first defendant in the suit, under a registered sale deed dated 21.8.1990. They purchased the property only after proper verification and after ascertaining the title thereof. The suit schedule property fell to the share of the plaintiff and his mother Smt. Akkamma through a Panchayat Paaluparikat dated 2.7.1982. Under the said document they became the absolute owners of the suit schedule property. Smt. Akkamma obtained conversion sanction certificate for the entire land bearing Sy. No. 39/2 measuring 1 acre 13 guntas for non-agricultural residential purpose vide reference No. ALN (SR) 139/81-82 and ALN (DR) 83/8283 issued by the Tahsildar, Bangalore North Taluk, dated 16.8.1982. She had also previously obtained conversion for the entire land bearing Sy. No. 39/2 of Nagawara Village, Kasaba Hobli, for non-agricultural residential purpose vide Ref. No. ALN (SR) (N) 65/81-82 and ALN (DR) 83/8283 issued by the Special Deputy Commissioner, Bangalore District, dated 24.6.1982. Smt. Akkamma along with her family members prepared a detailed layout plan and formed residential sites on the aforesaid land and had carved out sites bearing Nos. 345 and 346 amongst other sites. The said sites have fallen to the share of Akkamma and her son B.P. Nagaraj. Thereafter, they approached Sri U.P. Jayaram and offered to sell the two sites to him. After verification of the documents produced in respect of the schedule property by the said Akkamma and the plaintiff herein, the first defendant agreed to purchase the said two sites bearing Nos. 345 and 346 and having received consideration from him, they had jointly executed an irrevocable general power of attorney dated 7.9.1987 in favour of the first defendant which was duly notarized. Subsequently, the said Akkamma and her son B.P. Nagaraj jointly executed and sworn to an affidavit dated 16.9.1987 confirming having received the total consideration for sale of the schedule property to Sri U.P. Jayaram and also confirming that they had handed over physical possession of the two sites bearing Nos. 345 and 346. Sri U.P. Jayaram in turn, by virtue of the power vested in him under the general power of attorney sold the schedule property to defendants 2 and 3 herein. Since the date of purchase defendants are in possession of the schedule property. The suit schedule property was continuously used as a playground by the Cauvery National Public School with the consent of second and third defendants who has allowed the said school to use the suit schedule property as a playground. The school is situated on the north of the schedule property. Thereafter, they have specifically denied all the allegations made in the plaint.

It is submitted that the defendants could not get the katha registered in their name as the original sale deed was impounded by the District Registrar of the Stamps and Registration Department for undervaluation of stamp duty and registration fees. These defendants have been in possession of the schedule property since 21.8.1990 when the sites bearing Nos. 345 and 346, katha No. 563 was registered in their favour. The plot bearing No. 347 claimed by the plaintiff as belonging to him has a fully constructed two storeyed house on it. The allegation of attempting trespass made against the defendants 2 and 3 was denied. The filing of suit O.S. No. 25132/2009 was admitted. The allegation that the defendants appear to have forged and fabricated the general power of attorney and affidavit is denied, so also they denied that the sale deed dated 21.8.1990 is a nominal one. The plaintiffs themselves had acknowledged handing over of possession of the suit schedule property to the defendants in 1987 itself. It was the defendants who had got the land leveled and let out the same to be used as a playground by the neighboring school. When there was an attempt to lay a foundation illegally, a complaint was lodged with the jurisdictional police. Therefore, they sought for dismissal of the suit.

On the aforesaid pleadings, the trial Court framed the following issues :--

"1. Does the plaintiff prove that, he is the absolute owner in possession of the suit schedule properties as contended in the plaint?

Does the plaintiff prove that, he and his mother Akkayamma have not executed a General Power of Attorney and Affidavit in favour of the 1st defendant in connection with the suit schedule properties as contended in the plaint?

Does the plaintiff prove that, defendants are interfering in his possession over the suit schedule properties?

Does the plaintiff prove that, suit is properly valued and Court fee paid on the same is just and proper?

What order or decree?"

The plaintiff in order to substantiate his claim examined himself as PW1 and produced 10 documents which were marked as Exs. P1 to P10. On behalf of the defendants, the first defendant-U.P. Jayaram was examined as DW1. They also examined two witnesses A.S. Vasanth and S. Raja Babu as DWs 2 and 3. They also produced 14 documents which were marked as Exs. D1 to D14.

The learned counsel for the appellant assailing the impugned judgment and decree of the trial Court contended in the first place contended that, the plaintiff has categorically stated that he and his mother have not executed the general power of attorney in favour of the first defendant and, therefore, it does not bind them and the sale deed executed on the basis of such general power of attorney would not divest the plaintiff of his title to the schedule property. Further, he contended admittedly the general power of attorney is not registered. Sections 32 and 33 of the Indian Registration Act makes it obligatory on the person claiming rights under the power of attorney to get such a power of attorney registered. If it is not registered, any sale deed executed on the basis of such unregistered general power of attorney would not convey title and, therefore, the title in the property has not passed to defendants 2 and 3. He also submitted that, in this appeal an application is filed under Order 41 Rule 27 CPC for referring the disputed signatures to the handwriting expert. As both the parties have not adduced any evidence in this respect, the evidence of handwriting expert assumes importance and, therefore, he submits the judgment and decree of the trial Court be set aside, application for additional evidence be allowed and the matter be remanded back to the trial Court for fresh disposal in accordance with law.

Per contra, the learned counsel for respondents-defendants submitted that, when the plaintiff alleges that the defendants have played fraud and forged the signature of the plaintiff in preparing the power of attorney, the burden is on the plaintiff to prove fraud and forgery which he has miserably failed to do. It was further submitted that, a reading of Sections 32 and 33 of the Registration Act, 1908 makes it clear that, only if a person presenting the document for registration is not the executant of the sale deed, then power of attorney authorizing presenting the document for registration requires registration under Section 33 of the Act. In the instant case, the power of attorney holder is the executant of the document and an executant presenting the document of registration and, therefore, Section 33 is not attracted. She also contended that the plaintiff had ample opportunity to file an application for appointment of a handwriting expert as a Commissioner and to examine the disputed signatures which he did not avail of. Therefore, the question of granting permission in the appeal would not arise. Therefore, she submits as the judgment and decree of the trial Court is based on legal evidence, no case for interference is made out.

In the light of the aforesaid facts and the rival contentions, the points that arise for our consideration in this regular first appeal are as under : -

"(1) Whether the plaintiff and his mother have executed the general power of attorney dated 7.9.1987 and sworn to the affidavit dated 16.9.1987 which are marked as Exs. D4 and D5?

(2) Whether Ex. D4 dated 7.9.1987 is invalid for non-registration of the said document?

(3) Whether a case for production of additional evidence is made out?"

It is not in dispute that the plaintiff and his mother were the owners of the schedule sites. It is also not in dispute the said site along with site No. 347 fell to the share of the plaintiff and his mother at a partition on 2.7.1982. As the said partition was not reduced into writing, the parties chose to register the said document on 18.2.2003 which is marked as Ex. P1. Therefore, the title of the plaintiffs and his mother over the schedule site is not in dispute. It is the specific case of the defendants that plaintiff and his mother agreed to sell the suit schedule property in favour of the first defendant for a consideration of Rs. 1,00,000/-. It is the further case of the defendants, as the land agreed to be sold was a fragment as defined under the Karnataka Fragmentation Act, the same could not be registered. Therefore, on receipt of the full consideration of Rs. 1,00,000/- the plaintiff and his mother executed a power of attorney in favour of the first defendant on 7.9.1987. They have also sworn to an affidavit before the notary on 16.9.1987 acknowledging the receipt of Rs. 1,00,000/-, the sale consideration and delivery of possession of the schedule property to defendant No. 1. By virtue of the said power of attorney, defendant No. 1 executed a sale deed in favour of defendants 2 and 3 who are none other than the daughters. Thus, defendants 2 and 3 claim absolute title to the schedule property and they also contend that they are in peaceful possession and enjoyment of the property from the date of the sale deed. In fact, they have leased out the schedule property to Cauvery National School who are using the said sites as a playground for the students. In support of their contention, they have produced the letter issued by Cauvery National School.

From this material on record, the execution of the sale deed by the first defendant in favour of defendants 2 and 3 is not in dispute. If the first defendant had the valid authority as an agent of the plaintiff and his mother, then the sale deed executed by him in favour of defendants 2 and 3 would be valid. It is here we have to look at the specific pleadings in the case. The plaintiff has categorically stated at para 6 of the plaint that, plaintiff nor his late mother Akkamma had never executed any GPA, affidavit or agreement to sell in favour of the first defendant at any time whatsoever. In fact the first defendant is a total stranger to the plaintiff and his mother Akkamma. The first defendant appears to have forged and fabricated the general power of attorney and affidavit in his favour purporting to have been executed by the plaintiff and his mother Akkamma and on the strength of the said GPA and affidavit the first defendant has executed a nominal sale deed dated 21.8.1990 referred to above in favour of defendants 2 and 3. The said forged GPA and the nominal sale deed are not binding on the plaintiff as the plaintiff is not a party to the same. The said sale deeds executed by the first defendant in favour of defendants 2 and 3 does not convey any right, title and interest to defendants 2 and 3.

A reading of the aforesaid paragraph makes it very clear that the plaintiff has denied the execution of the GPA and the affidavit. The defendants specifically contend that plaintiff and his mother on receipt of Rs. 1,00,000/- as consideration have executed the GPA and the affidavit. In the light of these pleadings, the issue that arise for consideration is, whether defendants prove due execution of the GPA by the plaintiff and his mother in favour of the first defendant and also whether defendants prove that the plaintiff and his mother have sworn to the affidavit dated 16.9.1987. The burden of proving the said document is squarely on the defendants. Unfortunately, the trial Court seems to think because the plaintiff has alleged that the first defendant appears to have forged and fabricated the GPA and affidavit in his favour, the plaintiff admits the signature on the said document. There is no such admission. Therefore, issue No. 2 raised by the trial Court is improper. Because the burden of proving the fact that plaintiff and Akkamma have not executed GPA was placed on the plaintiff, defendant has not adduced any acceptable evidence on record to prove due execution of the Power of Attorney as well as the affidavit. As the plaintiff has failed to prove forgery or fabrication, the trial Court has come to the conclusion issue No. 2 has to be held against the plaintiff. This approach of the trial Court is ex facie illegal and cannot be sustained. The very framing of issue No. 2 placing the burden on the plaintiff to prove a negative is impermissible in law. The parties and the learned Judge have not properly applied their mind to the pleadings of the case and the necessary issues to be raised and thus the entire trial is misdirected. It is because of the wrong placing of the burden on the plaintiff, the defendant did not produce any evidence to prove due execution and swearing of the affidavit by the plaintiff and his mother. We have scanned the entire evidence. We do not have sufficient evidence to hold one way or the other. Certainly, the defendant cannot be taken by surprise as the mistake is by the trial Court placing the burden on the plaintiff. Therefore, in the circumstances of the case, we deem it proper to set aside the entire judgment and decree, to reframe the issue and give an opportunity to the parties to adduce evidence and thereafter the trial Court shall decide the said issue on merits and in accordance with law. As we are remanding the matter by setting aside the judgment and decree, all the contentions of the parties are kept open for adjudication by the trial Court. Similarly, as we are remanding the matter, the question of allowing the application for additional evidence would not arise. It is open to the plaintiff to make such application before the trial Court and work out his remedies before the trial Court. In that view of the matter, we pass the following order : -

"(a) The appeal is allowed.

(b) The judgment and decree of the trial Court is set aside.

(c) The trial Court shall adjudicate the dispute between the parties on all issues including the issue framed by the court as under:--

(i) Whether the defendants prove that the plaintiff and his mother have executed the General Power of Attorney in favour of the first defendant on 7.9.1987 as per Ex. D4 and they have sworn to the affidavit dated 16.9.1987 as per Ex. D5?

(d) Both the parties are at liberty to adduce additional evidence on this particular issue and on other issues as framed by the trial Court and the trial Court after hearing the parties shall proceed to decide the case on merits and in accordance with law."