D. Venkatesh vs Jayappa Reddy and Others

N. Kumar, J—The plaintiff has preferred this Regular First Appeal against the Judgment and Decree dated 21.3.2006 passed in OS 7550/01 dismissing the suit of the plaintiff for declaration, injunction and possession.

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

The subject matter of the suit is land bearing Sy. No. 210/2 measuring 1 acre 23 guntas situated in Kodigehalli village, Yalahanka Hobli, Bangalore North Taluk which is more particularly described in the schedule to the plaint and hereinafter referred to as schedule property.

The case of the plaintiff is, he is the owner of the schedule property. Earlier it was owned by his father. In a suit for partition and separate possession filed by the plaintiff''s brother D. Muniraju in OS 3424/90 the suit properties fell to the share of the plaintiff by the Judgment and Decree dated 3.11.1993. Subsequently, plaintiff name came to be entered in respect of the suit schedule property in mutation Entry No. 2/94. The plaintiff has been in lawful possession and enjoyment of the suit schedule property. The Revenue Department has issued Patta and he has been paying land revenue.

On 4.6.1994, he executed a General Power of Attorney in favour of the first defendant for the purpose of paying taxes, formation of layout by dividing the land into sites, for getting the land for non-agricultural purposes. As he was not keeping good health, the first defendant was required to keep the accounts in respect of the expenses incurred, the improvements made and the like activities done by him in his capacity as GPA holder. He was also required to keep the accounts in respect of transactions entered into by him regarding selling of sites etc. The first defendant was duty bound to intimate the plaintiff each and every transaction entered into by him in his capacity as GPA holder. The plaintiff had implicit faith in the first defendant and the first defendant had agreed to furnish accounts and to pay the consideration amount as and when the transactions are entered into at the hands of the plaintiff. In breach of trust reposed by the plaintiff, the first defendant did not discharge his duties as the prudent agent of the plaintiff. He did not effect any improvements in the suit land. No layout was formed and sites were formed. The first defendant was required to form the layout, but no action was taken. He kept the land fallow without making any improvements. Therefore, plaintiff cancelled the General Power of Attorney executed in favour of 1st defendant. The plaintiff executed a registered revocation deed dated 31.3.1997. The first defendant was duly intimated about the cancellation of the GPA. The first defendant kept mum and did not react to the same. Incidentally the plaintiff continued his possession and management over the suit land uninterruptedly.

The first defendant was a scheming person which the plaintiff was totally unaware. He managed to secure the GPA giving the description of lands as Sy. No. 210/2 with wrong boundaries covering the boundaries of another Sy. No. 210/1, the ownership of which is in the ownership of plaintiff''s brother Sri Sonnappa. The first defendant managed to insert such wrong boundary and got GPA executed with a mala fide intention to cause loss to the plaintiff and commit a fraud on him. The plaintiff was totally unaware of the ill-intention of the first defendant. The aforesaid power of attorney in favour of the 1st defendant was never acted upon either by the plaintiff or by the 1st defendant. The first defendant could not have acted upon inasmuch as the boundaries and the land shown in the schedule were different and the survey number was different. The said General Power of Attorney was also void in law inasmuch as no power was conferred in respect of Sy. No. 210/2. The whole document is void one. Recently, the plaintiff came to know stealthily by the act of fraud the first defendant has executed a sham, nominal and colorable sale deed dated 15.5.1995 in favour of his own wife Smt. C.R. Leela the second defendant in the suit for a consideration of Rs. 1,90,000/- purporting to sell Sy. No. 210/2 measuring 1 acre 20 guntas representing the plaintiff. The said act of first defendant is clearly an act of fraud and breach of trust. 1st and 2nd defendants who are husband and wife have been residing together as husband and wife under the same roof and in one house. No consideration has been passed from the 2nd defendant to the 1st defendant under the said sale transaction and the consideration shown in the said document is a sham one and a bogus one. The first defendant has created such a sham and nominal document without the knowledge of the plaintiff. The act of 1st defendant in executing such a sale deed in favour of the 2nd defendant his wife is clearly an attempt to commit misappropriation of land in Sy. No. 210/2 in breach of trust reposed by the plaintiff in favour of the 1st defendant. The alleged sale deed is a fraudulent and fictitious sale deed. The plaintiff got issued legal notice dated 14.8.2001 notifying the 1st and 2nd defendant and that they cannot disturb the possession and management of the plaintiff in respect of the suit property that the plaintiff is in possession of the same. The said sale deed did not confer any right or interest over the suit land in favour of the first or second defendant. The plaintiff received notices of two caveats dated 19.9.2001 and 15.9.2001 purported to have been filed by the 2nd defendant as also the 3rd defendant. The second defendant contended in the caveat that the plaintiff has entered into an agreement of sale with the 1st defendant. The 3rd defendant stated in the caveat, of sale with the 1st defendant. The 3rd defendant stated in the caveat that the 2nd defendant entered into agreement of sale with the 3rd defendant on 23.5.1996 in respect of the suit land and the possession of the suit land has been delivered by the 2nd and 3rd defendants in the caveat filed by them are totally false, illegal and void. The second defendant was never in possession of the property nor she has derived any title or possession in respect of the suit property. Third defendant was never in possession of the property. The third defendant is a MLA and is a rich person. He has been running a factory and has got number of employees under him. A couple of days ago, 3rd defendant accompanied by defendants 1 and 2 brought two loads of employees near the suit land and threatened to form a layout forcibly and also brought stones and implements threatening that they will form a layout. In those circumstances, the plaintiff was constrained to file the suit for permanent injunction.

Subsequently, by way of amendment, paras 12(a) and 12(b) were inserted. It is stated that first defendant had entered into an agreement dated 4.6.1994 with an understanding with the plaintiff that he would form layout in the suit schedule property and reserve the plaintiff''s share so as to be retained by the plaintiff to the extent of 1 acre 30 guntas. In pursuance of observation made in MFA 2657/02 to 2659/02 dated 17.9.2003 passed by this court they have illegally taken possession of the suit schedule property on 5.8.2004. The defendants are very influential and having nexus with antisocial elements, politicians and bureaucrats. They have violated the orders passed by this Court and are putting permanent structure over the suit schedule property. The plaintiff approached the Commissioner of Police who has kept silent with regard to the illegal activities of the defendant. Therefore, the plaintiff sought for declaration, possession and also damages.

After service of summons, the second defendant has filed a detailed written statement. She contended that first defendant has sold the suit schedule property in her favour under a registered sale deed dated 12.5.1995 for valuable sale consideration. Defendant No. 1 has delivered vacant possession of the suit schedule property to second defendant. Suit for permanent injunction filed by the plaintiff is not maintainable. The second defendant has become absolute owner by virtue of sale deed. She in turn has entered into a registered agreement of sale dated 23.5.1996 with Sri K. Venkataswamy Naidu who is third defendant. She has agreed to sell the property in favour of third defendant for a total consideration of Rs. 4.50 lakhs. On the date of agreement, defendant has received a sum of Rs. 4,45,000/-. Thereafter, she has also received balance of Rs. 5,000/-. Since she has received the entire sale consideration, she delivered vacant possession of the suit schedule property to the third defendant. Thereafter, third defendant has been in possession and enjoyment of the property. She has also executed an irrevocable registered general power of attorney dated 23.5.1996 in favour of third defendant. Plaintiff is nothing to do with the property in question. Thereafter, she pleaded her case that the plaintiff has entered into an agreement of sale with one Sri Lokesh Reddy, who is none other than the brother of first defendant. The plaintiff has received an amount of Rs. 3,25,000/- from the first defendant as well as from Lokesh Reddy on 25.4.1994. Plaintiff received a sum of Rs. 1 lakh on 17.5.1994 from the first defendant and the same is endorsed at the back side of the agreement. As major amount was paid, said Lokesh Reddy had no objection to execute the General Power of Attorney in favour of the first defendant. Accordingly, the plaintiff has executed the registered General Power of Attorney in favour of the first defendant. According to the terms of agreement, the plaintiff has agreed to sell the suit schedule property at the rate of Rs. 4,40,000/- per acre. The total sale consideration payable was Rs. 5,83,000/-. Plaintiff has received Rs. 60,000/- as advance vide cheque on the date of agreement. Further, a sum of Rs. 3,25,000/- was paid on 26.4.1994 and Rs. 1.00 lakh on 17.5.1994. The plaintiff has paid balance consideration of Rs. 98,000/-. Therefore, he executed the power of attorney.

It is stated, in the course of time, plaintiff has delivered the possession of the property in favour of first defendant as on the date of agreement itself. The plaintiff has permitted the first defendant to form a layout and sell the sites in favour of third parties. The permission was also accorded for conversion of land from agriculture to non-agriculture purposes by an order of Deputy Commissioner, Bangalore. A copy of the same is also enclosed. The second defendant has paid conversion charges to the authorities. Receipt is also enclosed. Therefore, the suit schedule property has lost the character of the agricultural land. Inspite of the said fact, the plaintiff is contending that the schedule land is agriculture land and plaintiff is cultivating the same.

Subsequently, registered agreement of sale was entered into between the second defendant and third defendant. The third defendant has developed the land. Third defendant has also filed a separate written statement reiterating the stand taken by the second defendant in her written statement. The second defendant has delivered possession of the property to the third defendant. After taking possession of the schedule property, he has put up fence and he has also constructed a shed. The possession of the property was already conveyed in favour of 2nd defendant and in turn it was conveyed in favour of 3rd defendant and hence plaintiff is not entitled to seek relief of possession. Thus he sought for dismissal of suit.

After the plaint is amended, the first defendant filed additional written statement adopting the statement filed by the second defendant earlier. She contends, the plaintiff is not entitled to the declaration. When once power of attorney is executed in his favour conferring power, the plaintiff is estopped from contending to the contrary. By virtue of power of attorney, he has executed sale deed in favour of second defendant as well. However, his submission that no sale deed is executed by the second defendant in favour of third defendant by agreement dated 23.5.1996 is false. Therefore, declaration sought for is misconstrued. Third defendant also filed an additional written statement to the amended plaint reiterating the stand taken by the first defendant as stated in his additional written statement.

We find an additional statement is filed on behalf of first and second defendants jointly. One more additional statement is filed on behalf of third defendant reiterating the allegations made in the earlier written statement. They are extracted in extenso.

On the basis of the aforesaid pleadings, the trial Court framed the following issues:

"1. Whether the plaintiff proves his lawful possession of suit schedule property as on the date of suit?

Whether the plaintiff further proves that the defendants are interfering with his possession of the suit schedule property?

Whether the 3rd defendant proves that the suit for bare injunction is not maintainable?

Whether he is entitled to the injunction as prayed for?

What order or Decree?

Additional Issues

Whether the plaintiff proves that the sale deed dated 15.5.1995 executed by the 1st defendant in favour of 2nd defendant and the sale deed dated 23.5.1996 executed by 2nd defendant in favour of 3rd defendant in respect of suit schedule property are null and void, sham and not binding in the plaintiff?

Whether the defendant No. 1 proves that he has executed their sale deed in favour of the defendant No. 2 in pursuance of the power given to him by the plaintiff under the General Power of Attorney dated 4.6.1994?

Whether the suit is barred by limitation as contended by the defendant No. 3?

Whether the plaintiff proves that the defendant illegally took the possession of the suit schedule property on 5.8.2004 and put up further construction?

Whether the plaintiff is entitled for possession of the suit schedule property and damages claimed?"

The plaintiff in order to establish his case, has examined himself as P.W. 1 and one Sonnappa has been examined as P.W. 2. They have produced 47 documents which were marked as Exs. P1 to P47. First defendant was examined as D.W. 1 and defendant No. 3 K. Venkataswamy Naidu was examined as D.W. 2 and one Lokesh Reddy was examined as D.W. 3 and they produced eight documents which were marked as Exs. D1 to D8.

The learned Counsel for the plaintiff - appellant assailing the impugned judgment and decree contended that the registered power of attorney executed on 04-06-1994 and the agreement dt. 04-06-1994 which is marked in the case as Ex. D. 4 are without consideration and therefore it is void ab initio. Secondly, it was contended, in terms of Ex. D. 1, the first defendant was expected to form a layout and sell sites. He had no power to sell the layout as it is and admittedly, first defendant executed Ex. D. 2 - the sale deed dt. 15-05-1995 conveying the schedule property in favour of his wife - the second defendant and therefore the said sale is vitiated and it is a clear case of fraud practiced on the plaintiff by the first defendant. He further submitted, on 31-03-1997, the plaintiff has executed a deed of revocation of the power of attorney and has also got it duly registered and therefore, the first defendant has no manner of right, title or interest over the schedule property. He also contended, the first defendant has not performed his obligation under Ex. D. 4. That apart, under Ex. D. 8, the consideration mentioned therein by way of endorsement are not made by the first defendant, nor received by the plaintiff and therefore he contends, the sale deed dt. 15-05-1995 and the subsequent agreement dt. 23-05-1996 entered into between the second and third defendants as per Ex. D. 3 and also the power of attorney executed by the second defendant in favour of third defendant as per Ex. D. 4 on 23-05-1996 are also vitiated and liable to be set aside and consequently the plaintiff is to be declared as the owner of the suit schedule property and consequently plaintiff is also entitled to possession of the schedule property as the first defendant has dispossessed the plaintiff during the pendency of the proceedings illegally.

Per contra, the learned Senior Counsel appearing for the first defendant contended, in the plaint there is no whisper about Ex. D. 8 under which the entire sale consideration is paid. It is also on payment of the entire sale consideration, the plaintiff executed Ex. D. 1 and got the document registered, authorizing the first defendant to execute and sell the schedule property. In fact, possession was also delivered on the date of the execution of power of attorney. Subsequently, by virtue of the power so conferred, the first defendant has executed a registered sale deed in favour of his wife - the second defendant on 15-05-1995 as per Ex. D. 2, conveying absolute title and also delivering possession of the property. On the day the power of attorney was revoked i.e. on 31-03-1997, the first defendant by virtue of the first power of attorney dt. 04-06-1994 had already conferred title to the second defendant and therefore the said revocation would have no effect in so far as sale - Ex. D. 2 is concerned. Therefore, the trial Court has dismissed the suit of the plaintiff and finding of the trial Court that the suit is also barred by law of limitation is also based on admitted facts.

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

(1) Whether the finding of the trial Court that the sale deed dt. 15-05-1995 executed by the first defendant in favour of the second defendant is not vitiated as contended by the plaintiff and therefore plaintiff is not entitled to the relief of declaration and possession.?

(2) Whether the finding of the trial Court that the suit is barred by time call for any interference?

Point No. 1:

It is not in dispute, the schedule property fell to the share of the first defendant under a partition dt. 03-11-1983 in O.S. No. 3424/1990. Under the same document, his another brother Sonnappa also got an extent of 1 acre 20 guntas. Now the evidence on record discloses, the plaintiff executed an agreement of sale on 21-04-1993 in favour of Lokesh Reddy - D.W. 3 as per Ex. D. 8, agreeing to sell the schedule land for a consideration of Rs. 4,40,000/- per acre and in all, a sum of Rs. 5,83,000/-. Out of the said consideration, a sum of Rs. 60,000/- was paid by way of cheque bearing No. 793237. Eleven months was the period prescribed for completing the said sale transaction. The agreement recites, on the day of the agreement, possession of the property was also given to the said Lokesh Reddy. In the said agreement, power was conferred on the said Lokesh Reddy to form a layout, to sell sites and to execute sale deeds. The plaintiff undertook to get the sale deed registered by executing the sale deed and registering it by coming to the Sub-Registrar''s Office. The said document is executed by the plaintiff in English, though the document is in Kannada. The document runs to four pages. On the hind portion of the last page there are three endorsements. The first endorsement is dt. 26-04-1994, where a sum of Rs. 3,25,000/- was received by the plaintiff from Jayappa Reddy i.e. the first defendant. The second endorsement is dt. 17-05-1994 where third advance amount of Rs. 1,00,000/- was given by Jayappa Reddy to the plaintiff. The last of such endorsement is on 04-06-1994, where a sum of Rs. 98,000/- is paid by way of cash by the first defendant to the plaintiff. It is also recited that no more amount is due to the plaintiff. The said endorsements are marked as Exs. D. 8(a), D. 8(b) and D. 8(c). The plaint is completely silent about this agreement. It is only when the defendant set up this agreement as a defence to show that the power of attorney was executed for consideration and therefore it is coupled with interest and consequently the plaintiff cannot cancel the power of attorney, by way of an amendment to the plaint, agreement dt. 04-06-1994 was pleaded for the first time. There is no whisper about this agreement dt. 21-04-1993 as per Ex. D. 8. Even in the evidence of the plaintiff, there is no mention about the said agreement. On the contrary, at paragraph 16 of the examination-in-chief, it was stated that the defendants 1 to 3 have falsely contended that plaintiff has entered into and executed an agreement of sale in favour of the brother of first defendant Lokesh Reddy on 21-04-1993. It was categorically stated that the plaintiff has not entered into any agreement of sale with Lokesh Reddy, the said agreement is false and concocted one. The first defendant has not paid any sale consideration to him and first defendant has nothing to do with Lokesh Reddy. The transaction of one has nothing to do with the transaction of another. In the cross examination, nothing is elicited. Therefore the case of the plaintiff is, he has not executed any agreement in favour of the first defendant on 21-04-1993 and if he has entered into any transaction with Lokesh Reddy, that has nothing to do with the first defendant. In this context, the defendants have examined Lokesh Reddy as D.W. 3. He has spoken about the agreement, payment of Rs. 60,000/- as advance by way of cheque, payment of the entire sale consideration agreed upon and also identified the signature of the plaintiff at Exs. D. 8(a) to D. 8(c). he has been cross examined extensively. What is suggested to him in the cross examination is that Ex. D. 8 was executed in order to denotify the acquisition proceedings in respect of the suit schedule property if it is acquired by the Government. Further the suggestion is, as per Ex. D. 8 after denotification the said Lokesh Reddy has to give back 10 guntas of land to the plaintiff. He has deposed that the stamp paper for Ex. D. 8 was purchased by the plaintiff himself. While making endorsement on Ex. D. 8 as per Ex. D. 8(a) to D. 8(c), except the plaintiff no witnesses were present. Ex. D. 8(b) and (c) were written by the plaintiff in his handwriting. He has pleaded ignorance of the handwriting at Ex. D. 8(a). He has further deposed that himself and the second defendant jointly paid the amounts to the plaintiff under the endorsement on Ex. D. 8. Therefore, from the aforesaid cross examination, it is clear, execution of Ex. D. 8 is not disputed. Altogether a new case of denotifying of 10 guntas of land is pleaded by the first defendant, which is conspicuously missing in the plaint and the evidence. We have looked into Ex. D. 8. As stated earlier, it is on a stamp paper. It is in Kannada. It is typed. The plaintiff''s signature is found on all pages. In fact he has put the date also after putting his signature. His signature is in English. Lokesh Reddy also has affixed his signature. In the last portion, the second, third and fourth advances received are set out. The said writing is in his handwriting. D.W. 3 has deposed, the last two endorsements is in the handwriting of the plaintiff himself, whereas, he is unable to say in whose handwriting is the first endorsement. When we carefully look at the signatures on this document, we are satisfied that it is the signature of the plaintiff. As set out above, though in the examination-in-chief he has denied having executed such agreement, while cross examining D.W. 3 a specific suggestion is put to him to the effect that the said document came into existence in connection with denotification of the land and under the document 10 guntas have to be given back to the plaintiff. It is on consideration of this oral and documentary evidence on record, the trial Court rightly held, Ex. D. 8 is proved and the consideration mentioned in the said document has been paid to the plaintiff by the said Lokesh Reddy and the first defendant and on the date the registered power of attorney was executed by the plaintiff in favour of the first defendant, no amounts were due to the plaintiff. We do not see any justification to interfere with this finding of fact which is recorded by the trial Court on the basis of the legal evidence available on record.

What follows from these facts is, as the entire sale consideration agreed upon for sale of the schedule property had been paid to the plaintiff, power of attorney was taken in the name of the first defendant on 04-06-1994, the day on which the last payment was made in Ex. D. 8. A reading of Ex. D. 1 makes it clear, as the plaintiff was not able to personally attend to the management of the schedule property and also he was suffering from ill health, he executed a general power of attorney and on the day of such execution, he handed over possession of the schedule property to the first defendant. It is also duly registered on the same day. Normally when a power of attorney is executed, no consideration is paid. No reasonable man in his senses would hand over possession of the schedule property to the power of attorney holder. Normally, the power of attorney is executed to develop the property, to manage the property and to approach the authorities. There was no need to hand over possession of the property. It is only because the entire consideration agreed upon under Ex. D. 8 had been paid, and nothing remains to be paid, the plaintiff has executed such a power of attorney. A perusal of the said power of attorney shows, the general power of attorney holder has to pay taxes to the Revenue department, BDA and all other dues to the Government and obtain receipts. He was duly authorized to form the layout, to sell the sites so formed to any person of his choice and after receipt of the consideration, to execute a registered sale deed in their name. Power was also conferred for getting the land converted and he was authorized to pay the conversion fine. He was further authorized to raise fund from any Bank or Society for development of the property and the liability to discharge the said loan was cast on the general power of attorney holder. If any dispute arises he was also authorized to engage a Counsel and approach the revenue officials. If the land is acquired, he was authorized to receive the compensation amount and if the compensation is found to be less, to seek for reference to a Civil Court. He was also authorized to make applications to the Government offices. Except saying that he has to maintain account, no other obligation is cast upon the general power of attorney holder, vis-�-vis the principal. The argument is, the power of attorney specifically authorized the power of attorney holder to form layout and to sell the sites. General power of attorney holder has not formed layout, has not formed sites in the said layout, but if he has sold the entire property as it is, which amounts to breach of the terms of the power of attorney. Relying on Sec. 215 of the Contract Act, it was contended, if an agent deals on his own account in the business of the agency without first obtaining the consent of his principal and acquainting him with all material circumstances, which have come to his knowledge on the subject, the principal may repudiate the transaction, if the case shows, either that any material fact has been dishonestly concealed from him by the agent, or that the dealing of the agent have been disadvantageous to him. It was contended, relying on the said provision, if the general power of attorney holder wanted to sell the land as it is, he should have brought it to the notice of the principal, taken his consent and then only he should have sold the property. Admittedly, if the said fact is not brought to the notice of the plaintiff and his permission is not taken, it amounts to dishonesty, it amount to fraud and therefore the subsequent sale transaction entered into by the first defendant with his wife - defendant No. 2 under a registered sale deed dt. 23-05-1996 gets vitiated. Assuming for arguments sake, the agent does not act strictly in terms of the power conferred, all that this provision says is, the principal has the right to revoke the authority given. That by itself would not render the power of attorney illegal or any action taken by the agent in pursuance of the power is vitiated. It is true, instead of forming a layout and forming sites in the said layout, the first defendant has sold the entire property in favour of the second defendant. That sale took place on 15-05-1995. On the day the first defendant executed sale deed in favour of the second defendant, Ex. D. 1 - the power of attorney was in force and therefore, he had the authority to execute the sale deed. The principal had not taken any action for revoking the said power of attorney immediately. The revocation came only two years after the sale deed on 31-03-1997, by which time, the first defendant had parted with the property in favour of the second defendant by virtue of the power conferred under Ex. D. 1. In the instant case, the said act of the agent is in no way disadvantageous to the plaintiff and there is no concealment of facts before the above provision is attracted. As is clear from the above discussion, the first defendant and D.W. 3 - brother of first defendant had paid the entire sale consideration due to the plaintiff under the agreement of sale and no amount was due to the plaintiff. Therefore, by executing the sale deed in respect of an agricultural land as it is, plaintiff is not put into any disadvantageous position. When absolute right was conferred by the plaintiff on the first defendant to sell the property, not disclosing to the plaintiff that he should sell the land as it is would not amount to dishonesty or fraud as sought to be made out by the plaintiff. Under these circumstances, the finding recorded by the trial Court that Ex. D. 2 the sale deed is valid and it is not vitiated is supported by the legal evidence on record and the said finding also does not call for any interference. That apart, the evidence on record shows, it is not only the plaintiff who executed the power of attorney in favour of first defendant, the other portion of the land in the same survey number belonging to Sonnappa, the brother of the plaintiff was also the subject matter of sale in favour of the first defendant. On receipt of the entire consideration he also executed a similar power of attorney and got it registered on the same day. Though Sonnappa has come to Court to give evidence in support of the claim of the plaintiff as P.W. 2, he has not taken any steps to get the sale deed - Ex. D. 2 cancelled as sought to be made out by the plaintiff. The evidence on record shows, plaintiff was a farmer and now he has turned out to be a land developer. He can sign in English language. Therefore, it cannot be said that the plaintiff is an innocent man a simpleton who does not know worldly affairs and the first defendant taking advantage of his innocence has played fraud on him. In fact the case pleaded in the plaint is, the first defendant has included in the power of attorney, the boundaries of his brother''s property and therefore the said documents are vitiated. As set out earlier, both plaintiff and Sonnappa entered into an agreement with the first defendant and his brother received the entire sale consideration, executed a power of attorney, registered it, delivered possession under the document and thereafter they have not bothered to go near the land for considerable time. In fact, evidence on record shows, in terms of the sale deed dt. 15-05-1995 the name of the plaintiff and his brother was deleted in the revenue records and in that place the second defendant''s name is included. The plaintiff has not taken steps till today for correction of the said entries in the mutation register. The said mutation register shows, from 1995 second defendant is the cultivator of the land, second defendant acquired title under a registered sale deed and that she is in possession. Therefore in 2001, suppressing all facts, without producing the RTC extracts, and produced the RTC extracts only upto 1994, a suit for bare injunction is filed on the allegation that the plaintiff is in possession and defendants are trying to interfere with that possession. Plaintiff did not succeed. Defendants entered appearance. They filed a detailed written statement. Thereafter, the plaint was amended, pleading Ex. P. 44 - an agreement, but conceding Ex. D. 8 - a registered agreement under which the entire consideration was received. There is a specific recital in Ex. D. 8 that possession is delivered on the date of the agreement. There is a specific recital in the power of attorney - Ex. D. 1 dt. 04-06-1994 that possession is taken. The revocation is only on 31-03-1997. It is not the case of the plaintiff that after revocation the plaintiff got back possession from the first defendant. Suppressing all these facts, in 2001 a suit is filed. Suit was dismissed on the ground that it is totally contrary to the evidence on record. In fact, much stress is now put forth on Ex. P. 44 by amending the plaint. It is stated that the first defendant had entered into an agreement dt. 04-06-1995 with an understanding with the plaintiff, that he would form a layout in the suit schedule property and reserve the plaintiff''s share so as to be retained by the plaintiff to an extent of 1 acre 30 guntas. What we are not able to understand from this plea is, the subject matter of the suit is 1 acre 23 guntas. If in respect of the said schedule land, after power of attorney is executed, after forming the layout, which means, leaving sufficient space for roads and drainage, how the plaintiff could retain 1 acre 30 guntas is ununderstandable. In fact the said plea is based on misreading of the document - Ex. P. 44. What Ex. P. 44 contains is, it is an agreement executed by the first defendant in favour of the plaintiff and his brother Sonnappa. It is categorically stated, the land bearing Sy. No. 210/1 and 210/2 are the ancestral properties of the plaintiff and his brother. They in all measure, 4 acres 26 guntas. The share of Sonnappa is 1 acre 15 guntas in Sy.No. 210/1 and the share of the plaintiff is 1 acre 20 guntas in Sy. No. 210/2. Out of these two survey numbers, 2 acres 30 guntas belongs to the defendant. In the remaining land, the first defendant has to form a road, get the land converted, provide water and sewage facility free of cost to the plaintiff and Sonnappa. Therefore, it is not an agreement of sale. It is not a development agreement as sought to be made out. It is in the nature of an understanding between the plaintiff and the first defendant as the plaintiff and his brother were selling their land in favour of the first defendant and the remaining land was adjoining the said land, the first defendant was expected to form a layout, provide water and sewage facility after getting the land converted, a mark of goodwill. But nowhere attempt is made to say that even in the agreement there is no consideration and therefore, the sale deed dt. 15-05-1995 is vitiated.

From the aforesaid evidence on record, it is clear plaintiff not being sure of his case is taking a chance before the Court to get the sale deed set aside in the year 2001 as property values have gone up considerably in and around Bangalore. Therefore, rightly the trial Court on appreciation of the aforesaid legal evidence has held that the declaration sought for by the plaintiff is misconceived and rightly rejected the plaint.

Regarding point No. 2:

The sale deed is executed on 15-05-1995. After the execution of the sale deed, second defendant entered into an agreement and got it registered with the first defendant on 15-05-1995. Sale deed, power of attorney duly executed by him as per Ex. D. 1. The plaintiff revokes the power of attorney on 31-03-1997. If the power of attorney is revoked on 31-03-1997 and if the plaintiff was in possession of the property, certainly the plaintiff would have seen the developmental activity coming on in the schedule land. Even in 2001 when the suit is filed, it was only for a bare injunction. In the written statement filed, the aforesaid facts were set out. An application for amendment was filed on 08-05-2003, which application is allowed in December, 2003. A suit for declaration of title falls within Article 58 of the Limitation Act, 1963. The prayer sought in the application is that the plaintiff is the absolute owner. Plaintiff was the owner and that ownership was lost on 15-05-1995, when by virtue of the power of attorney executed by the plaintiff, first defendant executed a sale deed in favour of the second defendant. Immediately thereafter, mutation entries have been changed in the name of the second defendant. At any rate, on 31-03-1997, the power of attorney was revoked. The plaintiff was aware of all these transactions. The deletion of the name of the plaintiff in the mutation register and addition of the name of the second defendant in the mutation register amounts to denial of title of the plaintiff over the suit schedule property. Ex. P. 13 is the said mutation entry. The right to sue accrues when the said title is denied and the plaintiff has approached the Court after the expiry of a period of three years. The trial Court on proper appreciation of the evidence on record, rightly held, the suit is also barred by law of limitation.

In that view of the matter, we do not see any infirmity in the judgment passed by the trial Court.

For the aforesaid reasons, we do not find any ground to interfere with the well considered order passed by the trial Court, which is based on legal evidence. Hence, the appeal is dismissed.

Parties to bear their own costs.