Smt. A.S. Jayamma vs Smt. V Rukmini and Sri R Sridhar

Mohan Shantanagoudar, J.—This is a plaintiff''s appeal filed against the judgment and decree of dismissal passed in O.S. No. 388/2010 by 5th Additional City Civil Judge, Bangalore City, Bangalore. The property involved in this litigation is the land having municipal numbers 426/5, 426/6, 426/7 and 426/8 situated at Govindarajapura, Bangalore measuring East-West 145 ft North-South 60 ft. The boundaries are shown in the schedule of the plaint.

The case of the plaintiff is that she is the absolute owner of the suit schedule property, inasmuch as she has purchased the same on 01.07.89 from lis previous owner late S. Ramachandran for the valuable consideration; ever since then she is in possession of the suit, schedule property as an absolute owner; she has paid the betterment charges to the corporation and the corporation has issued notice to her for assessment of tax; the plaintiffs vendor namely S. Ramachandran sold the property to the plaintiff free from any encumbrance or charge. The plaintiffs vendor died subsequent to the purchase and the defendant Nos. 1 and 2 are wife and the son respectively of the deceased Ramachandran: on 10.01.2000 the defendant Nos. 1 and 2 started asserting their rights and title over the property in question at 5.00 p.m. They asked the plaintiff to vacate and hand over the vacant possession of the suit schedule property; the defendant Nos. 1 and 2 do not have any right title or interest over the suit schedule property; the plaintiff has learnt that the original documents under which late Ramachandran had purchased the suit property from Smt. Puttalaxmamma were given to 3rd respondent by way of collateral security for obtaining financial assistance; however, the plaintiff is entitled to get back the original documents pertaining to the suit schedule property from the 3rd defendant. Based on these averments the suit came to be filed by the appellant herein for permanent injunction restraining the defendant Nos. 1 and 2 or anybody on their behalf from interfering with his peaceful possession. The plaintiff has also sought for Mandatory injunction and direction to the defendant no. 3 to hand over the original title deeds of the property which are in the custody of the bank.

The suit is opposed by Defendant Nos. 1 and 2 by filing the written statement. The defendant Nos. 1 and 2 denied the case of the plaintiff in toto: they denied that the plaintiff purchased the suit schedule property from Ramachandran; the power of attorney on the basis of which the sale deed was executed is concocted and created. The alleged sale deed is created by the plaintiff in active collusion with the one Sri. Shivappa Shetty who is claiming to be the power of attorney holder of late. Ramachandran. Ramachandran did not execute the power of attorney in favour of Shivappa Shetty and said alleged attorney must have forged the signature of Ramachandran.

It is further stated that Ramachandran purchased 25 guntas of land on 9.9.1971 from Smt. Puttalaxmamma under a registered sale deed; after purchasing the said property he borrowed certain loan from the 3rd defendant for his business by creating equitable mortgage over the property in question: Since Ramachandran did not repay the loan amount, 3rd defendant filed O.S. No. 3062/1982, and O.S. No. 3644/1982 on the file of City Civil Court, Bangalore for recovery of Rs. 4,18,599/- with interest thereon; in addition to such transaction Ramachandran had also borrowed some amount in connection with the partnership business firm namely Anuradha Industries. In that regard also the bank claimed a sum of Rs. 1,92 800/-, Ultimately the suit came to be compromised after demise, of Ramachandran. The defendants are in possession of the property since the date of purchase from Puttalaxmamma till this day and therefore, they pray for dismissal of the suit.

On the basis of the pleadings the Trial Court framed the following issues:

i. Whether the plaintiff proves his lawful possession over the suit schedule property?

ii. Whether the plaintiff proves the cause of action as alleged in the plaint?

iii. Whether the plaintiff proves the alleged interference by the defendants over the suit schedule property?

iv. Whether the plaintiff is entitled to the relief of Mandatory injunction as sought for?

v. What order or decree?

During the course of trial, three witnesses were examined on behalf of the plaintiff and the defendant got himself examined as DW1. 28 documents were marked on behalf of the Plaintiff and 16 documents were marked on behalf of the defendants. After hearing, the Trial Court dismissed the suit with costs.

It is relevant to note that since the defendants had questioned the ownership of the plaintiff, the dispute arose with regard to the payment of Court fees. Subsequently Court fees was paid by the plaintiff on declaratory relief also. The trial Court incidentally went into the question of ownership of plaintiff also and has held that the plaintiff has failed to prove her title and possession over the property in question.

Sri. K. Suman learned counsel for the appellant submits that in the light of the registered sale deed in favour of the plaintiff executed by the power of attorney holder of Ramachandran, the trial Court ought to have granted the decree for injunction; the plaintiff is in settled possession of the property since the date of purchase i.e., since 1.7.1989; Khatha was changed in favour of the plaintiff and the plaintiff has paid betterment charges. PW Nos. 1 to 3 are the relevant witnesses who have deposed about the execution of power of attorney by Ramachandran in favour of Shivappa Shetty; since the khata is changed in favour of the appellant and as she is in possession of the property, the trial court is not justified in concluding that the plaintiff has failed to prove her title and possession over the property in question.

Per contra, it is argued by Sri. Amarnath, learned counsel for the respondents that, by forging signature of Ramachandran, power of attorney is created by the plaintiff in collusion with Shivappa Shetty The said power of attorney cannot be relied upon at all as the power of attorney holder himself is not examined before the Court; There is no reference of power of attorney in the plaint at all, inasmuch as the plaintiff avers that she has purchased the property directly from Ramachandran and not through power of attorney; The power of attorney is suppressed in the plaint itself in view of the fact that the power of attorney was created: PW2 cannot depose about the personal knowledge of the plaintiff inasmuch as he does not know about alleged interference by the defendants and hence, no reliance can be placed on the evidence of PW2; the notary has deposed before the Court that the Shankarappa advocate who signed and identified the signature of executants on Ex. P2 was not present during the course of execution before the Notary. Though Ramachandran has sold several bits of the properties in favour of other persons, none of the sites were sold by him through power of attorney but were sold personally by Ramachandran; No reliance can be placed on the fact of payment of betterment charges and change of khata and inasmuch as betterment charges were paid just one day prior to filing of the suit and the khata was changed after filing of the suit; Only after disposal of the O.S. Nos. 3644/1982, and 3062/1982 filed by the bank, the present suit is filed; which clearly reveals the ill motive on the part of the plaintiff; PW2 has deposed that he has seen Shivappa Shetty for the first time on the date of execution and has not seen earlier. The sum and substance of the argument of the respondents is that the whole case made out by the plaintiff is concocted and plaintiff is not entitled to the property in question; She has not purchased the property from Ramachandran but has purchased the property from one Shivappa Shetty who is not the power of attorney of Ramachandran. Thus, he argues for dismissing the appeal.

From the aforementioned contentions of both the learned advocates, the following points araise for consideration in this appeal;

a) Whether the Court below is justified in dismissing the suit holding that the plaintiff is not in lawful possession of the suit schedule property?

b) Whether the Court below is justified in dismissing the prayer of the plaintiff for mandatory Injunction?

The plaintiff / appellant wholly relies upon the registered sale deed said to have been executed in her favour on 1.7.1999 by Ramachandran. In the plaint she has averred that she has not purchased the property from Ramachandran but has purchased the property from one Shivappa Shetty who is said to be the power of attorney holder of Ramachandran. Ex.P2 is the power of attorney said to have been executed by Ramachandran in favour of Shivappa Shetty on 29.6.1989. The sale deed in favour of the plaintiff is at Ex.P3. According to the plaintiff she is in settled possession since the date of sale deed i.e. since 1.7.1989. Since the sale deed has remained unquestioned, according to the plaintiff she continues to be the owner of the property and in possession of the property. All these questions are considered by the Court below in a proper perspective and all the contentions of the plaintiff are rightly rejected by the trial Court.

The records reveal that Ramachandran was the original owner and mortgaged the property in the year 1976 to the bank for raising two loans and two suits were filed by the Bank for recovery of those loans in the year 1992 as those loans remained unpaid. Ultimately the suits came to be disposed of after the death of Ramachandran on 18.12.1999. Immediately after disposal of those suits, the present suit came to be filed on 14.01.2000.

The alleged power of attorney was executed by Ramachandran in favour of Shivappa Shelly on 29.6.1989 and the property was sold by Shivappa Shetty in favour of plaintiff within a span of two days i.e., on 1.7.1989. Aforementioned facts clearly reveal that the plaintiff waited till the disposal of the two original suits filed by the bank and immediately after the disposal of the suits, she has filed the present suit. As aforementioned, the power of attorney has executed the sale deed in favour of the plaintiff within two days from the date of execution of power of attorney. The suit schedule property is bearing Sy. Nos. 426/5/6/7/8 as is clear from the schedule attached to the plaint. The power of attorney (Ex.P2) reveals that the Ramachandran has executed the power of attorney in favour of Shivappa Shetty authorising him to sell property No. 426/5/6/7/8 and 9 which means, one extra property number is also included in the power of attorney though the same is not the subject matter concerned. The boundaries as mentioned in the plaint as well as in the power of attorney also differ. It is relevant to note that the boundaries mentioned in the plaint are. East by 40 ft., road, West by 30 ft., road marked, North by Private Property, South by National Housing Co-operative Society''s Property. Whereas in Ex.P2 the power of attorney the boundaries of the property are mentioned as, East by Road; West by Road: North by NHB Co-operative Society approved layout; South by Private Property.

From the above, it is clear that North and South boundaries of the properties do not tally. Which clearly reveals that the property as mentioned in the power of attorney is different from the property mentioned in the plaint.

Curiously the plaintiff has not whispered anything about the alleged power of attorney Ex.P2 in the plaint. She has averred that she has purchased the property directly from Ramachandran. There is no reason as to why she suppressed the fact of purchasing the property through the power of attorney, in the plaint. Had she really purchased the property from the power of attorney, she would not have suppressed the said fact while filing the suit. In this context, the arguments of respondent''s counsel that the power of attorney is concocted assumes importance. The plaintiff has not entered the witness box in the matter before the trial court.

On the other hand, she executed a power of attorney in favour of PW1, J. Rajanna for deposing before the Court. The suit is for injunction. The plaintiff alleges interference by the defendant. It is specifically stated in the plaint that the defendant Nos. 1 and 2 had come to schedule properties on 10.1.2005 at 10.00 p.m and threatened the plaintiff and asked her to hand over the vacant possession of the property. All these facts are stated to have happened in the presence of the plaintiff. PW1 was not at all present at that point of time. He did not have personal knowledge of the alleged interference by the defendant Nos. 1 and 2. If it is so, it is not open for PW1 to depose on behalf of the plaintiff supporting the case of the plaintiff relating the alleged interference on the particular day. There is no reason as to why the plaintiff did not enter the witness box. If she has purchased the property from the power of attorney and if she is in possession of the property by virtue of the sale deed executed in her favour and if she is sure about the alleged interference by the Defendant Nos. 1 and 2, she should have personally entered the witness box to depose the same facts and for facing the cross-examination.

PW2 is stated to be the witness for Ex.P2. He was allegedly present when Ramachandran executed power of attorney in favour of the Shivappa Shetty. If the evidence of PW2 is meticulously perused, the same would not create confidence in the mind of the Court. According to him he saw Shivappa Shetty the alleged power of attorney for the first time on 29.6.1989 i.e., on the date of execution of the power of attorney. Till that date he had not seen or met him. He met him in the office of the Notary by name Renuka Prasad. He does not know the address of the office of Notary. He has further deposed that he has not signed any other document before the Notary. He has specifically stated that he has not seen Ramachandran after 29.6.1989. He does not: know anything about the sale deed Ex.P3. Further, he has deposed that he knows Jayamma (plaintiff) for the last two months from the date of his deposition. His deposition was recorded on 25.05.2005 which means he knows the plaintiff from 24.08.2005 only. However, after signing Ex.P2 he never saw Shivappa Shetty once again.

From these answers it is clear that the said witness is brought up witness. He has seen the alleged attorney on the very date of the execution of the power of attorney and from that day onwards he has not seen said Shivappa Shetty. He has not seen Ramachandran (vendor) later to the execution of the power of attorney as he does not know either Shivappa Shetty or Ramachandran intimately. He contends that he has business of import and export. He is earning from an export and import of sugar and rice. If it is so it is unthinkable that: the businessman of this stature to be present in the office of Notary without any work, only for the purpose of signing power of attorney that too when he did not know either the power of attorney or Ramachandran intimately. Thus the evidence of PW2 is rightly disbelieved by the Court below.

PW3 is the Notary who attested power of attorney Ex. P2. Though in the examination in chief, he says that executant of Ex. P2 was present before him and signed before him in the register, the register is not produced before the Court. According to him he would maintain the register for one or two years, thereafter, he would destroy the same. K.C. Shankarappa, learned advocate was present before him for identifying the executant. In the cross examination he states that K.C. Shankarappa was not present when Ex. P2 was executed before him, which clearly means that the person who identified the executant was not before the Notary. Even the executant was not known to Notary. If it is so, there is no reason as to why the Notary should certify the signature of the executant on the power of attorney. He should have insisted the presence of the advocate at the time of the executing of the power of attorney for identifying the signature of the executant. He himself has deposed in the cross examination that he insists the executant to be identified by another person or advocate, if he does not know the executant personally.

From the above material, it is clear that the executant of the alleged power of attorney has created in mischief. Added to it, Shivappa Shetty power of attorney holder himself is not examined before the Court. Since the power of attorney itself was under challenge, the best piece of evidence available for the plaintiff was to keep the said power of attorney before the Court. The power of attorney ought to have deposed in the matter to clarify all the disputed facts relating to so called power of attorney. The evidence of all the three witnesses of the plaintiff is shaky and does not create confidence in the mind of the court.

The sale deeds by which Ramachandran has sold certain bits of properties to the third parties are produced before the Court as per Exs.P24 to 28. They are of the year 1987-88. All these sale deeds are executed directly by Ramachandran. None of the sale deeds are executed by Ramachandran through power of attorney. The sale deed in question is the only sale deed which is stated to have been executed through power of attorney, In this context, it is rightly argued on behalf of the respondents that there is no power of attorney at all executed by Ramachandran in favour of any person. It is no doubt true that, Shivappa Shetty is the attesting witness in some of the sale deeds Exs.P24 to P28, which means that Shivappa Shetty was known to Ramachandran. But that it does not mean that Ramachandran must have executed power of attorney in favour of Shivappa Shetty. The sale deed in question is dated 1.7.1989. If really Ramachandran wanted to sell the property he could have sold the property himself directly to the plaintiff.

It is relevant to note that the betterment charges were paid by the plaintiff on 13.1.2000 i.e., one day prior to filing of the suit. Only for the purpose of filing of the suit, the plaintiff seems to have created the documents in her favour. Even the khata is changed in her favour during the pendency of the suit and not earlier thereto. The said khata is also not helpful to the plaintiff inasmuch as the same does not pertain to the property in question. The same pertains to the property No. 426/4. The said property No. 426/4 was by then sold by Ramachandran in favour of one Mr. Joshi on 9.6.1988, whereas the khata in respect of the very property No. 426/4 was changed in favour of the plaintiff subsequent to 9.6.1988. This goes to show that all is not well with the case of the plaintiff. The documents are created by the plaintiff only for the purpose of her filing the suit. The entire material on record probabalises the case of the defendant that Ramachandran had not executed Power of Attorney in favour of Shivappa Shetty, particularly in the light of the fact that Shivappa Shetty himself is not examined before the Court. So also the beneficiary under the sale deed through Shivappa Shetty (power of attorney holder) is also not examined. In view of the same, the Trial Court is justified in concluding that the plaintiff has not proved her lawful ownership and possession of the property in question. Absolutely no records are forthcoming to show that the plaintiff is in possession of the property at any point of time. The records produced before the Court are suspicious. The power of attorney, the receipt for having paid the betterment charges and khatha extract, are unbelievable and more surrounded with suspicious circumstances. The betterment charges are paid just one day prior to filing the suit only for the purpose of creating records and the khatha pertaining to property No. 426/4 (not relevant to the suit property) was changed subsequent to filing of the suit. By the time the khata was entered in the name of the plaintiff, the property i.e., No. 426/4 was sold by owner favour of Joshi as per Ex. P26. In view of the same the Trial Court is justified in concluding that the plaintiff has not proved her possession of the property in question. Even on re appreciating the material fact we do not find any ground to interfere with the Judgement & decree passed by the Trial Court.

Hence the Appeal fails and is dismissed.