Chev. K. M. Joseph vs Sri. A. S. Raja

B. Sreenivase Gowda

This appeal is by the plaintiff challenging the judgment and decree passed by the Lower Appellate Court in allowing the Regular Appeal preferred by the defendant thereby setting aside the judgment and decree passed by the trial Court in his favour.

For the sake of convenience the rank of parties are referred to as they are referred in the suit before the trial Court.

This Court by order dated 16.12.2010 has admitted the appeal to consider the following substantial question of law:

Whether the lower Appellate Court was justified in reversing the finding and judgment of the trial Court without assigning adequate reasons and merely holding that the description of the property was not clear and therefore, could uphold the claim of the defendant who was claiming under a power of attorney whereas the appellant was claiming under four registered sale deeds and contemporaneous documents in proof of his title to the property?

I have heard the appellant who appeared as party in person and the learned Counsel appearing for the respondent and I have perused the judgments and decrees of both the Courts below including the records and the written arguments filed by the appellant.

The plaintiff tiled a suit in O.S.No.674/2003 against the defendant in the Court of II Additional Civil Judge (Jr. Dn.), Bangalore Rural District, Bangalore initially for the relief of permanent injunction to restrain the defendant from interfering with his peaceful possession and enjoyment of ''A'' schedule property measuring 3 acres 03 guntas of land in Sy. No.32/1 of Doddanagamangala Village, Begur Hobli, Bangalore South Taluk. Subsequently he got the suit amended and sought the relief of declaration and possession in respect of ''B'' schedule property which is a shed constructed in ''A'' schedule property measuring 8ft x 18ft.

The brief facts of the case of the plaintiff as pleaded in the plaint are that he is the absolute owner in possession and enjoyment of ''A'' schedule properly having purchased it from M. Premkumar, M. Ramachandran, M. Laxmana and M.Anand Kumar under four different sale deeds elated 24.07.2001 and 10.04.2002 for valuable consideration and the revenue records have been effected into his name, as such the defendant has no manner of right, title or interest over the suit property. He has constructed a shed measuring 8 ft. x 18 ft. in the south west corner of ''A'' schedule property and he has engaged a watchman who is residing in the said shed. During the 2nd week of May 2004 taking undue advantage of the fact that Courts were closed for summer vacation and the plaintiff was out of station, the defendant without any manner, right title or interest over ''B'' schedule property has illegally entered and occupied ''B'' schedule property unauthorisedly by violating the interim order of the Court. Therefore he has filed the suit for the relief of permanent injunction in respect of ''A'' schedule property and for the relief of declaration and possession in respect of ''B'' schedule property.

The defendant after entering appearance in the suit filed written statement denying all the plaint averments with regard to ownership, possession and enjoyment of the plaintiff over ''A'' and ''B'' schedule properties inter alia contending that the vendors of the plaintiff had no valid right, title or interest to sell the suit property in favour of the plaintiff under different sale deeds as alleged by him, because the vendors of the plaintiff have sold ''A'' schedule property in favour of M.V. Sudhakar Gupta and A. Nagaraju by executing a registered GPA on 21.01.1998 as such the said G.P.A. holders became the absolute owners and they got every right to deal with the suit schedule property and they were in possession of the same. They have formed sites in Sy. No. 32/1 and sold number of sites in favour of different persons. As such the southern half portion of Site number No. 75 was sold in favour of defendant for valuable consideration of Rs. 22,500/- and delivered physical possession of the same by executing General Power of Attorney and Affidavit on 17.01.2000. He further contended that the boundaries in the schedule to the G.P.A. on the south was wrongly mentioned as site no. 76 instead of 74 due to typographical error. After the defendant purchased the said site has constructed a house by spending huge amount and he is residing there along with his family members. It is contended that the alleged vendors of the plaintiff having executed a registered G.P.A. in favour of M.V. Sudhakar Gupta and A. Nagaraju ceased to have any right to deal with the suit schedule property. He denied his interference over the suit property as alleged by the plaintiff. He further contended that the suit is bad for non-joinder of necessary parties and it is not maintainable and he prays for dismissal of the suit.

That on the basis of pleadings of the parties the trial Court has framed the following issues:

Whether the plaintiff proves that he is in lawful possession and enjoyment of suit "B" scheduled property?

Whether the plaintiff proves that he is in lawful possession and enjoyment of suit "A" schedule property?

Whether the plaintiff proves that the defendant illegally entered and he is in unuthorised occupation of the "B" schedule property?

Whether the plaintiff proves the alleged interference by the defendants?

Whether the plaintiff is entitled for permanent injunction in respect of the suit schedule properties?

Whether the plaintiff is entitled for the relief of declaration in respect of "B" schedule property?

What order or decree?

The plaintiff in support of his case has examined himself as PW 1 and has produced as many as 13 documents which were marked as Ex. P 1 to 13. Whereas the defendant has examined himself as DW 1 and 4 independent witnesses as DWs 2 to 5 and has produced as many as 19 documents which were marked as Ex. D1 to D 19.

The trial Court by its judgment dated 09.6.2009 decreed the suit and declared the plaintiff as absolute owner of ''A'' schedule property and entitled for possession of ''B'' schedule property and granted permanent injunction restraining the defendant from interfering with the possession and enjoyment of the plaintiff over ''A'' and ''B'' schedule properties and directed the defendant to deliver vacant possession of ''B'' schedule property to the plaintiff.

The defendant aggrieved by the said judgment and decree of the trial Court has preferred R.A. No. 103/2009 before the lower Appellate Court and the lower Appellate Court by it''s judgment and decree dated 18.08.2010 allowed the appeal and set aside the judgment and decree passed by the trial Court and dismissed the suit. It is against this judgment and decree of the lower Appellant Court the plaintiff has preferred this second appeal.

There is no dispute between the parties that four sons of Munisetty viz., M. Premkumar. M. Ramachandra, M. Laxmana and M.Anand Kumar hereinafter referred to as original owners were the absolute and joint owners of suit A schedule property measuring 3 acres 03 guntas had executed a registered G.P.A. dated 21.01.1998 in favour of M.V. Sudhakar Gupta and A. Nagaraju hereinafter referred to as GPA holders in respect of entire ''A'' schedule land measuring 3 acres 03 guntas as evident from Ex. D 1. The case of the plaintiff is that the GPA executed by the original owners in favour of GPA holders was cancelled and the original owners had sold the entire ''A'' schedule land in his favour under four different sale deeds at Ex P 1 to P 4 dated 24.07.2001 and 10.04.2002 and since then he has been in peaceful possession and enjoyment of ''A'' schedule property. To look after the said land he has constructed a shed in the southwest corner of suit ''A'' schedule property measuring 8 ft. x 18ft. described as ''B'' schedule property in the plaint and engaged a watchman who is residing in the said shed. During the second week of May 2004 taking undue advantage of the facts that courts were closed for summer vacation and the plaintiff was out of station the defendant illegally entered and occupied ''B'' schedule property by violating the interim order granted by the trial Court.

It is the specific defence of the defendant that the original owners had sold the suit TV schedule properly in favour of GPA holders by executing a registered GPA in their favour and they formed 84 sites in the land bearing Sy. No.32/1 of Doddanagamangala Village and sold some sites in favour of different persons and they sold southern half portion of site No.75 measuring 31 ft. x 20 ft in favour of the defendant by executing a GPA and affidavit in his favour for a valuable sale consideration of Rs.22,500/-. Southern boundary in the GPA is wrongly mentioned as 76 instead of 74 due to typographical error which fact has not been controverted by the plaintiff Thereafter he constructed a house by spending huge sum and he is residing there along with his family members and therefore the allegation of the plaintiff that he has trespassed into the alleged ''B'' schedule property measuring 8'' x 18'' which does not have any boundary is not correct and the house property in his possession is not described in the schedule to the plaint. He further contended that the plaintiff has admitted in the meeting held between him and the GPA holders in which he has undertaken to provide alternate sites to those persons including this defendant who have purchased sites from the GPA holders and constructed houses and living there and he has produced the said meeting proceedings at Ex D 3. With this he prays for dismissal of the suit.

The plaintiff has admitted the execution of registered GPA at Ex.D-1 dated 21.01.1998 by the original owners in favour of GPA holders in respect of ''A'' schedule property empowering them to deal with the same in any manner including the right of forming layout and sites and right of sale of sites in favour of intending purchasers. By virtue of the said registered GPA, the GPA holders had formed 84 sites and sold some sites in favour of different persons including the plaintiffs in the suits in O.S. 444/2005. O.S. 446/2005 and O.S. 448/2005 copies of the order sheets of said suits and plaints were produced and marked as Ex. D 6 to D 8 and southern half portion of site no.75 measuring 31 ft. x 20 ft was sold to the defendant under an affidavit and GPA which were marked as Ex. D 4 and D 5 and the purchasers have constructed small houses as could be seen from the photographs Ex. D 9 to D 19. The plaintiff in the aforesaid 3 suits viz. Srinivas Raju, K. M. Kedaraswamy, A. Gopalakrishna Raju and P. Shankara were examined as D.Ws 2 to 5 respectively. In their affidavit evidence they have clearly stated about purchase of their respective sites from the GPA holders, and the suits filed by them against the plaintiff in this ease and building constructed by them and the defendant in the present suit as per Ex. D 9 to D 19.

In the meeting proceedings held between the plaintiff and the GPA holders as per Ex D 3 the plaintiff had undertaken to arrange for alternate sites in favour of persons who have purchased sites front GPA holders in Sy. No.32/1, including the plaintiffs in the aforesaid suits and the defendant in the present suit in any other layout or in the alternative house their sites to a corner of ''A'' schedule property. The plaintiff expressed his inability to identify the house property in the occupation of the defendant and he has not controverted the specific stand of the defendant that he has purchased southern half portion of site no. 75 from the GPA holders and southern boundary is wrongly mentioned as site no.76 instead of 74 in the schedule to the GPA Ex. D 5. Further he pleads ignorance about the existence of 30 ft road on the eastern side of the property of the defendant.

To accept the contention of the plaintiff that he has constructed a shed measuring 8'' x 18'' in the south West corner of ''A'' schedule property which is described as ''B'' schedule property and has engaged a watchman to look after his property and the said watchman is residing in the said shed and the defendant taking undue advantage of the facts that Courts were closed for summer vacation and the plaintiff was out of station has trespassed into the said shed and unauthorisedly living there has not chosen to examine the said watchman nor has described the ''B'' schedule property with specific boundaries On the other hand the defendant in support of his case that he has purchased the southern half portion of site no. 75 from the GPA holders has produced the affidavit and GPA at Ex. D 4 and D5, the court proceedings of purchasers of other sites at Ex. D 6 to D 8. Apart from that the defendant has produced certain photographs at Ex D 9 and D 10 which clearly show that he has been residing in the house constructed in a portion of ''A'' schedule property along with his family members and even cattle belonging to the defendant tied in front of his property are seen in the photograph. The plaintiff who admits execution of affidavit and GPA executed by the GPA holders in favour of the defendant though the defendant having not chosen to challenge the said affidavit and GPA either by asking for a declaration that they are null and void or a declaration that they are not binding on him, could not contend that the defendant has trespassed into the alleged ''B'' schedule property measuring 8'' x 18'' without mentioning any boundaries to it. In that view of the matter it is unnecessary to consider the question as to whether the affidavit and GPA executed by the GPA holders in favour of the defendant in respect of his house property are valid documents in the eye of law or not. However, the lower Appellate Court in the course of its judgment by referring to certain decisions has held that the affidavit and GPA executed by the GPA holders in favour of the defendant are valid documents as they are executed prior to the amendment of Section 53(a) of Transfer of Property Act.

The plaintiff having not described the house property in the occupation of the defendant in the schedule to the plaint with specific boundaries is not entitled for any relief particularly the relief of declaration and possession in respect of ''B'' schedule property. Although the plaintiff admits there is no document to show that the registered GPA Ex. D 1 dated 21.01.1998 executed by the original owners in favour of GPA holders is cancelled, the trial Court has committed an error in coming to an erroneous conclusion that the GPA executed by original owners in favour of GPA holders is cancelled and the GPA holders could not have formed sites and sold some of the sites in favour of different persons including the plaintiffs in the aforesaid suits and the defendant in this case. Further the trial Court has failed to notice that the sale transactions effected by the GPA holders in favour of the plaintiffs in the aforesaid suits and the defendant in this suit are subsequent to execution of GPA at Ex. D 1 by the original owners in favour of the GPA holders and before the alleged cancellation of the said GPA. Further it has failed to notice the GPA at Ex. D 1 executed by the original owners in favour of the GPA holders in respect of ''A'' schedule property is an irrevocable GPA coupled with interest. If the trial Court had noticed this material aspect it would not have decreed the suit of the plaintiff. In the absence of proof of cancellation of GPA at Ex. D-1 before execution of documents of sale in favour of defendant the plaintiff could not contend that GPA holders have no right to form layout and sites and sale of the same has no substance. If GPA holders had not formed sites and if they had not sold few sites in favour some persons including the plaintiffs in the aforesaid suits and defendant in this suit there was no occasion for the plaintiff to hold a meeting with GPA holders as per Ex. D 3 and take a decision to arrange for alternative sites in favour of those purchasers including defendant or house their sites to a corner of ''A schedule property.

The lower Appellate Court considering all these aspects of the matter and on re-appreciation of oral and documentary evidence on record has rightly allowed the appeal preferred by the defendant and set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff.

I have carefully gone through the judgments and decrees of both the Courts below including their records and written arguments submitted by the appellant and do not find any valid reasons to reverse the well reasoned judgment of the lower Appellate Court based on re-appreciation of oral and documentary evidence on record.

I answer the substantial question framed by this Court on 18.12.2010 accordingly.

For the reasons stated above, the appeal is dismissed as devoid of merit by confirming the judgment and decree passed by the lower Appellate Court in R.A.No. 103/2009.

No order as to costs.