B.V. Sreenivas vs Padmanabhan

A.S. Pachhapure, J.—The unsuccessful plaintiff has filed this appeal challenging the judgment and decree by the First Appellate Count allowing the appeal of the respondent by setting aside the judgment and decree of the trial Court granted in his favour. The facts relevant for the purpose of this appeal are as under:

The parties will be referred as per their rank before the trial Court. The appellant is the plaintiff and he instituted the suit for injunction to restrain the respondent who is the defendant in the trial Court from causing obstruction to the peaceful possession and enjoyment of the suit property which is Site No. 26 measuring 45 feet x 55 feet described with the boundaries mentioned in the schedule to the plaint. Plaintiff purchased the suit property under sale deed dated 10.6.1999 through the General Power of Attorney Holder D. Parthasarathy in whose favour the owner is said to have executed the power of attorney. In pursuance of the sale deed he got entered his name in the records. On the basis of the sale deed the plaintiff claims title and said to be in possession and as there was an obstruction to his peaceful possession and enjoyment of the suit property by the defendant, he instituted the suit in the trial Court.

The defendant appeared and filed his written statement contending that he has purchased the suit property from its owner who is examined as DW2 and that the sale deed has been executed in favour of M/S. Sri. Sathya Sai Towers Hotels Pvt. Ltd. of which the defendant is said to be a Director. This sale deed is said to have been executed on 11.6.1999. Therefore, it is his contention that the said Company is in possession of the suit property thereby he has denied the title and possession of the suit property with the plaintiff.

On the basis of the pleadings, the trial. Court framed the issues and the appellant is examined as PW1, in his evidence Exs.P1 to P7 were marked. The defendant is examined as DW1 and the witness DW2 and in the evidence Ex. D1 is marked. The trial Court after hearing the counsel for the parties and on appreciation of evidence on record decreed the suit of the appellant. Aggrieved by the judgment and decree, the defendant preferred RA No. 210/01. The said appeal came to be heard and was disposed of under the impugned judgment and decree by allowing the appeal and dismissing the suit filed by the appellant. Aggrieved by the judgment and decree of the First Appellate Court, the present appeal is filed.

I have heard the learned counsel for the appellant. The respondent though served is absent.

It is the submission of the learned counsel that the appellant has purchased the suit: property under the registered sale deed Ex.P1 dated 10.6.1999 for valuable consideration and that this sale deed has been executed by the Power of Attorney Holder of the owner who is examined by the defendant as DW2. Therefore it is his contention that the plaintiff is in possession of the suit property on the basis of the sale deed and the defendant has no right, title or interest of whatsoever over the suit: property. He submits that the First Appellate Court committed an error in reversing the judgment and decree without assigning consistent and cogent reasons Perusal of the material placed on record reveals a serious dispute with regard to the title to the suit property. As per the claim of the plaintiff Ex.P1 is the sale deed executed by the Power of Attorney Holder and the General Power of Attorney has been produced at Ex.P2. Ex.P4 is the Demand Register and it reveals that the name of the appellant is entered in the records. Ex.P7 is the certified copy of the plaint in OS No. 193/1999, wherein the plaintiff instituted a suit For injunction against the other persons. Anyhow, perusal of the evidence of DW2-the erstwhile owner of the suit property reveals that he never executed any power of attorney as per Ex.P2 and therefore it is the contention of the defendant that the plaintiff has not derived any title on the basis of the sale deed Ex.P1. DW2 has stated in his evidence that the suit property was sold to the aforesaid company under the registered sale deed dated 11.6.1999. So, the sale deed in favour of the plaintiff is on the basis of the power of attorney and the date of sale is 10.6.1999, whereas, the defendant claims interest in the suit property on the basis of the sale deed executed by its owner and is dated 11.6.1999. So there is a dispute with regard to the title. That apart, the suit is instituted immediately after the sale transaction. It is only on the basis of Ex.P4 the Demand Register, the plaintiff claims title. But anyhow it is relevant to not that as the suit has been instituted immediately after alleged execution of the sale deed and as there is a rival contention with regard to the claim of title to the suit property, in the absence of a relief of declaration I do not think that the claim of the parties could be decided on the basis of the disputed documents. That apart, the plaintiff has not examined even the Power of Attorney Holder except producing Ex.P2 which has been disputed by the alleged executor who is examined by the defendant as DW2. I think no purpose would be served and at the most the plaintiff may approach the Court seeking relief of declaration so that the rights of the parties could be agitated and in the said suit proper relief could be granted. In that view of the matter as the First Appellate Court has assigned cogent reasons to reverse the judgment and decree of the trial Court, I do not find any substantial question of law for consideration. The appellant is at liberty to institute a suit for declaration and agitate his rights over the suit property and seek proper ancillary reliefs.

In the result; the appeal fails and it is accordingly dismissed.