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Judgment
H.S. Kempanna
This appeal by the plaintiff is directed against the judgment and decree dated 30.10.2010 passed in O.S.9824/07 by the XXXIX Addl. City civil Judge, Bangalore city dismissing the suit filed seeking the relief of permanent injunction.
For the sake of convenience the parties in this appeal would be referred to as they are referred to in the original suit.
The suit, schedule property is a vacant site bearing No. 204, katha No. 699. old No. 1071. formed in S. No. 107/1, old.S. No. 42 of Mallathhalli village, Yeshwathpur Holbi, Bangalore North Taluk measuring east to west 40 ft and north to south 30 ft. more particularly described in the schedule appended to the plaint.
The case of the plaintiff is that she is the absolute owner in possession and enjoyment of the suit schedule property. According to her the suit site was carved out of S. No. 107/1 (old S. No. 42) of Mallath Halli Village, Yeshwanthpur Hobli, Bangalore North Taluk. The said S. No. 107/1 originally belonged to one H.Gangappa. It is the case of the plaintiff that the said Gangappa had executed a registered power of attorney (POA) dated 7.5.1990 in favour of one Sri.Kishore Babu in respect of several sites carved out in the said survey number including the suit schedule property and the said Sri.Kishore Babu was put in possession of the suit schedule property. The said Gangappa had executed POA with an agreement to sell the suit schedule property and other sites and therefore, the said POA is an irrevocable POA as it was coupled with interest, It is her ease that the POA was executed as there was bar for registration of sale deed under the provisions of Prevention of Fragmentation and Consolidation of Holdings Act. It is her further ease that as there was a bar for registration, Sri.Kishore Babu, executed a POA in favour of one Sri.Krishnamurthy on 30.9.1991 and the same was also an irrevocable POA. Subsequently, the said Krishnamurthy executed one more general POA in favour of Ramesh Kini on 17.3.1998 and said Ramesh Kini as POA holder of Krishnamurthy thereafter, executed a registered sale deed 12.10.2000 in favour of one Sri.Srungeshwar and he was put in possession of suit schedule property. The said Sri.Srungeshwar as an absolute owner in possession, in turn has executed a registered sale deed in favour of the plaintiff on 26.5.2004 and put her in possession of the property and as such she has become the absolute owner in possession of the suit schedule property. It is also her case that the katha of suit schedule property stands in her name.
It is her further case that the defendants have no manner of light, title, interest and are not in possession of the suit schedule property. Defendants 1 to 3 are the brother, sister-in-law and wife of Gangappa, Defendants 4 and 5 are total strangers and they were and are not in possession of the suit schedule property. In spite of the same Defendants 1 to 3 colluding with defendants 4 and 5 along with their henchmen attempted to dispossess her from the suit schedule property on 20.12.2007 at 5 p.m. The Defendants along with their henchmen have attempted to trespass into the schedule property and also tried to dispossess her. However, with the timely intervention of the neighbours she was able to prevent the defendants from trespassing into the suit property. Defendants are very powerful persons and have threatened to dispossess her from the suit property. She is unable to resist the illegal acts without the aid of court. Therefore, she prayed for grant of relief of permanent injunction against the defendants.
After service of suit summons, defendants 1 and 3 did not appear before the court. Hence, they were placed exparte. Suit as against defendant No. 2 came 10 be dismissed as steps were not taken by the plaintiff.
Defendants 4 and 5 appeared through their counsel and filed written statement. They denied all the allegations made in the plaint, and interalia contended as under:-
They denied the plaintiff being the absolute owner in exclusive possession of the schedule property. They also denied H.Gangappa being the owner of S. No. 107/1 old No. 42 of Mallathhalli village and he having formed layout of residential site and disbursed the same to various persons and he having sold the suit schedule property in favour of one Kishore Babu and the said Kishore Babu having been put in possession of suit property on 7.5.1990. They further denied the suit property being a revenue site, there was a ban for registration of the documents and the said Kishore Babu having sold the suit property in favour of one Krishnamurthy through an irrevocable general power of attorney as there was ban for registration of the sale deed. All those allegations are completely false. They further denied the said Krishnamurthy having sold the suit property in favour of one Ramesh Kini through irrevocable POA dated 17.3.98 and having put him in possession of suit property and the said Ramesh Kini in-turn having executed a registered sale deed in favour of Shrungeshwar on 12.10.2004 and the said Shrungeshwar having sold the suit property in favour of the plaintiff on 26.05.2004. The same are all false.
They also denied the plaintiff being in lawful possession and enjoyment of suit property, katha having been made out in her name and she having put up a compound wall all around the suit property. The plaintiff has created the documents only for the purposes of the suit and there is no cause of action for the suit. Plaintiff is not the absolute owner in possession of the property.
On the other hand it is the ease of the defendants, that S. NO. 107/1 old No. 42 of Mallathhalli village, belongs to one Hanumaiah and he had three sons viz. Mallaiah first defendant, Ningappa husband of second defendant and Gangappa husband of third defendant. After the death of Hanumaiah, his sons Mallaiah, Ningappa and Gangappa became the absolute owners of the property and they formed the layout and jointly sold some sites. On 6.12.1997, Gangappa died leaving behind his wife Gurushanthamma and children Srinivasa, Bhagya and Manjula as his LRs. On 20.10.1994 Ningappa died leaving behind his wife Radhamma, his children Muniraja, Manja, Harisha as his LRs and Mallaiah is still alive. After the death of Lingappa and Gangappa their wife and children along with Mallaiah-defendant No. 1 sold the suit property jointly to defendant No. 4 under the registered sale deed dt.5.12.2007. Ever since then, defendants are in possession and enjoyment of suit schedule property by putting up a compound wall.
It is also their case that the property bearing S. No. 107/1 old No. 42 belongs to Hanumaiah who had three sons by name Mallaiah- defendant No. 1, Ningappa and Gangappa who are the husbands of defendant No. 2 and defendant No. 3, Therefore, the said Gangappa had not acquired any right title over the property exclusively, on the other hand, the disputed property is the joint family property of Hanumaiah and his three sons and If at all, if Gangappa executed any general power of attorney in favour of any person it is not binding on the co-parcenors, it is not valid in law and therefore, the said power of attorney dt. 7.5.1990 cannot be considered.
They also contended that Kishore Babu after obtaining general POA from Gangappa in turn executed general POA in favour of Krishnamurthy on 30.9.1991 and the said Krishnamurthy in turn executed another general POA in favour of Ramesh Kini on 17.3.1998 and the same are not valid in the eye of law as, one person cannot delegate the power of principal to another person, but in this ease number of persons have delegated the power to various persons on behalf of principal. They also contended that even if Kishore Babu has expired, another gen. POA is forthcoming. When the executor of the Gen. POA has passed away, automatically the said Gen. POA also looses its character. Therefore he cannot execute or continue to delegate the powers when he has no authority to do it. Therefore, the plaintiff has no manner of right, title whatsoever over the schedule property. The person who executed registered sale deed in favour of the plaintiff was not at all having any right. Hence, plaintiff cannot become absolute owner in possession of the suit schedule property and therefore, she being in possession on the basis of that document does not arise. The plaintiff was never in possession either lawfully or unlawfully. There is no cause of action for the suit. The alleged cause is false. Accordingly, sought for dismissal of the suit.
On the basis of the above pleadings, the trial court framed the following issues :-
Whether the plaintiff proves that she is in possession and enjoyment of the plaint schedule property as on the date of the suit, as contended?
Whether the plaintiff proves that the defendants are interfering with the plaintiffs possession and enjoyment over the plaint schedule property, as alleged?
Whether the plaintiff is entitled for the relief of permanent injunction as sought?
What order or decree?
The plaintiff in support of her case got examined her son P.G.Raghunath who is her General POA holder as PW1. She produced 23 documents which came to be marked as Ex.P1 to P23. On behalf of the defendants 5th defendant came to he examined as DW1. They produced 11 documents which came to be marked as Exs.. D1 to D11.
The trial Court on the basis of evidence and the documents placed on record, held that the plaintiff has failed to prove that she is in possession and enjoyment of the suit schedule property as on the date of the suit, the defendants are interfering with her possession and enjoyment of the suit property and therefore, she is not entitled to the relief of permanent injunction as sought for and accordingly, dismissed her suit. Aggrieved by the said order of dismissal of the suit plaintiff is in appeal before this Court.
The learned counsel appearing for the appellant/plaintiff contended that the trial judge erred in dismissing the suit of the plaintiff on the ground that the POA executed in favour of Kishore Babu has not been produced despite the material on record and the suggestions put in the course of cross examination indicate that there is no serious dispute regarding the registered POA dated 6.5.90 executed by Sri.Gangappa in favour of Kishore Babu. It was further contended the trial Court also erred in going to the question of title to the suit property when the suit filed was for a bare injunction in which what is to be considered is only whether the plaintiff has made out her case that she was in possession and enjoyment of suit schedule property on the date of the suit. In this connection, he submitted that, defendants 1 to 3 earlier had filed O.S. No. 967/2003 for the relief of declaration and injunction in respect of the entire land and in the said suit an application filed for temporary injunction was dismissed and MFA 4177/03 filed by them against the rejection of temporary injunction was also dismissed by this court and subsequently as the suit was dismissed as withdrawn on 19.12.04, filed by defendants 1 to 3, they cannot claim that they art the owners in possession of the land and as such they could not have conveyed any title to defendant No. 4. In the light of this the trial court holding that the plaintiff is not in possession of the property which she has purchased legally from her vendors cannot be sustained and hence, the impugned order of dismissing her suit be set aside by allowing the appeal.
Per contra, the learned counsel appearing for the contesting defendants 4 and 5 before the trial Court contended that the original Gen.POA executed by Gangappa in favour of Kishore Babu, which according to them is registered, is not produced before the Court under which plaintiff is claiming her title to the property. Even otherwise, Gangappa who is one of the co-parcenors of the joint family comprising of Hanumaiah and his three sons could not have executed the Gen.POA in favour of Kishore Babu to the exclusion of his brothers. It is not valid in the eye of law. It does not convey any title to anyone much less to the plaintiff as contended by her. Further, the subsequent Gen.POA''s executed in favour of Krishnamurthy, V. Ramesh Kini are not registered. Gen.POA. They could not have been relied upon for conveying the tittle to the property as claimed by the plaintiff. On the other hand, defendant No. 4 has purchased the suit property from defendant No. 1 to 3 under a registered sale deed. They are In possession of the property. They have got the katha made in their favour. They have produced the tax paid receipts and RTC extract for the year 2007-08 which reflects the name of defendants 1 to 3 which discloses that they were in possession of the property in question. They have also produced photographs Exs.D9 and D10 and CD- Ex.D11 which clearly discloses that defendants are in possession of the property. The learned trial judge on appreciation, of the entire material on record has come to the right conclusion that the plaintiff is not entitled to for an order of equitable relief of injunction as she has failed to prove her lawful possession over the suit property. In view of the same, the impugned judgment and decree does not call for any interference.
Having regard to the rival contentions, the evidence and the documents on record, the point that arises for my consideration is,
Whether the impugned judgment and decree of the trial court calls for any interference?
it is the case of the plaintiff that she is the absolute owner in possession of the suit property. According to her the suit property is carved out of S.107/ 1 old No. 42 of Mallathalli village, Yeswanthpur Hobli. Bangalore north taluk and it originally belonged to one H. Gangappa. The said Gangappa had executed a Gen.POA in favour of one Kishore Babu on 7.5.1990 along with an agreement to sell. In pursuance of the same the said Kishore Babu had formed sites in the said land and had sold the same to various persons including the suit property. Absolute sale deed at that point of time could not have been executed on account of the bar for registration of the sale deed under the provisions of the Fragmentation and Consolidation of Holdings Act. The said gen. POA executed by Gangappa with an agreement to sale was an irrevocable Gen. POA. In turn, Sri, Kishore Babu, executed a gen.POA on 30.9.91 in favour of Krishnamurthy and said Krishnamurthy executed another irrevocable Gen. POA in favour of V. Ramesh Kini on 17.3.98 and all these persons delivered vacant possession of the schedule property in respect of their POA holders. The POA executed by Kishore Babu dt.30.9.91 in favour of Krishnamurthy is produced and marked as Ex.P2. The said Krishnamurthy has executed gen. POA in favour of V. Ramesh Kini on 17.3.98 which is at Ex.P14. The said Ramesh Kini in turn has executed registered sale deed in favour of one Shrungeshwar as per Ex.P4 on 12.10.2000 and the said Shrugeshwar in turn has executed registered sale deed as per Ex.P5 in favour of the plaintiff and delivered possession of the property. In pursuance of the same, katha has been made in favour of the plaintiff and defendants have no manner of right, title or interest over the schedule property. In spite of the same they are trying to interfere with her peaceful possession and enjoyment of the same.
On the other hand, the defendants have completely denied the power of attorney executed by Gangappa in favour of Kishore Babu. It is their case S. No. 107/1 old S. No. 42 originally belonged to Hanumaiah. The said Hanumaiah had three sons who are none other than Mallaiah, first: defendant, Ningappa husband of second defendant and Gangappa husband of third defendant. The said property is joint family property of the sons of Hanumaiah and Gangappa had no manner of exclusive right to execute alleged Gen. POA in favour of any person much less in favour of Kishore Babu as contended by the plaintiff. Even if there is any such document that does not confer any right, title in Gangappa and in turn in favour of the alleged POA holders to interfere with their possession and enjoyment of the suit property.
It is the ease of the defendants that sons of Hanumaih had formed layout and they jointly had sold sites in favour of individuals. Gangappa died on 6.12.1997 leaving behind his wife Gurushanthamma, children Srinivasa, Bhagya and Manjula. Ningappa another son died on 20.10.94 leaving behind his wife Radhamma and children Muniraja, Manja and Harish. The other son Mallaiah, who is defendant No. 1 is alive. The LRs of Ningappa, Gangappa and Mallaiah have sold the suit property jointly in favour of 4th defendant, carved out of S. NO. 107/1, under a registered sale deed dt.5 12.2007, Ever since then the defendants have put up compound around the suit property and they are in possession and enjoyment as lawful owners. Plaintiff has no manner of right title or interest over the property.
The plaintiff is deriving her title to the property and also claims that she is in peaceful possession and enjoyment of the suit property by virtue of the sale deed Ex.P5 executed by Shrungeshwar in her favour on 26.5.2004. As already pointed out the said sale deed has been executed by Shrungeshwar in pursuance of the sale deed Exs.P4 and Ex.P14 and Ex.P2 the general POA executed in favour of Ramesh Kini. Krishnamurty has got the suit property through Ex.P2-POA executed by Kishore Babu. The son of the plaintiff who is examined in support of the case-PW1 no doubt has stated in his evidence as per the plaint averments. It is pertinent to note here that the original POA coupled with agreement to sell executed by Gangapppa in favour of Kishore Babu is not produced before the Court though it is a registered Gen.POA as claimed by the plaintiff. Even the certified copy of the said gen. POA executed by Gangappa in favour of Kishore Babu under which the title to the property has flown, as claimed by the plaintiff, has not been produced before the Court. Even Ex.P2 the Gen.POA which according to the plaintiff is an irrevocable POA is a notorised document it is not a registered document. Likewise, is the fate of Ex.P14 the power of attorney executed by Krishnamurthy on 17.3.1998 in favour of Ramesh Kim. At the time of arguments learned counsel appearing for the appellant fairly also conceded that the original Gen.POA executed in favour of Ramesh Babu by Gangappa is not produced. Even the certified copy of the said document is not obtained and placed before the Court. It is the ease of the defendants that Gangappa had no right whatsoever to execute the Gen.POA exclusively in favour of Kishore Babu. It is their case that S. No. 107/1 originally belonged to Hanumalah who is the father of Malliah, Ningapa husband of defendant No. 2, Gangappa husband of third defendant, who is supposed to have executed Gen.POA in respect of the said land, who in turn has formed the layout carved out the sites in the same survey number including the suit property and have sold it to various persons under the Gen.POA. If according to the plaintiff the property S. No. 107/1 belongs to Hanumaiah, who had three sons by name. Mallaiah. Ningappa and Gangappa they become the co-parcenors having equal share in the property. It is nobody''s ease there was partition among them and the property had fallen to the share of Cangappa and he has executed the Gen power of attorney" in favour of Kishore Babu. Since Mallaiah the first defendant, Ningappa the husband of the second defendant and Gangappa the husband of the third defendant are co-parcenors and as there was no partition amongst the said brothers of the joint family property. Gangappa could not have executed any general POA with an agreement to sell in favour of Kishore Babu. Even if such document is there, it is not valid in the eye of law. Further, the Gen.POA claimed by the plaintiff executed by Gangappa in favour Kishore Babu coupled with agreement to sell has not been placed before the court. Therefore, the source of title to the property itself becomes doubtful in the light of the Gen.POA having not been placed before the court as submitted by the counsel for the plaintiff which is the source of title to the suit property as claimed by the plaintiff. No doubt, in a suit for bare injunction the question for determination is, whether the plaintiff has established that she is in lawful possession of suit property as on the date of the suit. In this case the plaintiff claims that she is in possession of the suit property by virtue of the sale deed Ex.P5 the source of which according to her is the power of attorney executed by Gangappa in favour of Kishore Babu and in pursuance of the same she has got exhibits PS, P7 & P8 the property extract, assessment extract and the katha certificates. These are the off-shoots of Exs.P2 and P14. As already pointed out Ex P2 is a notorised document. It is not a registered document which has conveyed title of the immovable property which is worth more than Rs. 100/- That Ex.P2 is also not based on the original power of attorney as it is not placed before the court. It is case of the plaintiff that Krishnamurthy who had derived title to the property, according to the plaintiff through Kishore Babu on 30.9.1991 under the Gen.POA in turn has executed general POA in favour of Ramesh Kini on 17.3.1998. Though the plaintiff claims that she was in lawful possession of the property in question, no document is placed before the Court to show that since 30.9.1991 to 17.3.1998. the date on which Krishnamurthy executed power of attorney in favour of Ramesh Kini was in lawful possession of the suit property. Not even a scrap of paper is produced in support of the claim that the suit property was in possession of Krishnamurthy and that, was handed over in favour of Ramesh Kini if that being so, it is doubtful whether the plaintiff who claims that she was put in possession of the suit property by Shrugeshwar under Ex.P5 source of which is from the aforementioned power of attorney cannot be believed. Therefore as rightly pointed out by the trial court, it is doubtful to believe the case of the plaintiff that she is the owner in possession and enjoyment of the suit site.
On the other hand, defendants 4 and 5 claim that they have purchased the property from defendants 1 to 3 under the registered sale deed dated 5.12.2007. They have produced Exs.D2 to D5 the tax paid receipts and D6-RTC extracts for the year 2007-08 which depicts the name of defendants 1 to 3. Further they have also produced Ex.D7 the mutation extract and also the photographs Exs.D9 and 10. These documents go to show that defendants 1 to 3 who are the owners of the property are in possession of the same and sold the same in favour defendants 4 and 5 on 5.12.2007. As already pointed out the original gen.power of attorney executed by Gangappa has not been produced before the Court. Though it is a registered document as claimed by the plaintiff, even the certified copy of the same has not been produced. Therefore, the source of title to the property as claimed by the plaintiff also becomes doubtful as held by the trial court. No doubt, defendants 1 to 3 filed O.S.967/03 claiming the relief of declaration and permanent injunction and in the said suit they have sought for an order of temporary injunction which relief was denied. As against the same they preferred MFA before this Court which also came to be dismissed. Thereafter, they have withdrawn the suit. That by itself does not give any right to the plaintiff as it is not sufficient to prove her case. As rightly held by the trial Court it is well established principle of law that the person who approaches the court has to establish his case before the court and cannot take advantage of the weakness of the other side. In this case, the material on record disclose that the plaintiff has failed to establish that she is in lawful possession of the suit schedule property as the source of her title itself is doubtful. The Hon''ble Supreme court in the case of K. Gopala Reddy (deceased) by L.Rs. Vs. Suryanarayana and Others, among other things has held as follows:-
As a suit for injunction simplicitor is concerned only with possession, normally issue of title will not he directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But, in cases where de jure possession has to he established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not he possible to decide the issue of possession.
In this case the suit property is a vacant, site. Though the suit is one for hare injunction, the prayer for injunction will have to be decided with reference to the possession. In cases of this nature issue of title directly and substantially arises for consideration as, without deciding the case for title thereon, it will not be possible to decide the issue of possession. As already pointed out there is a clear dispute regarding the title of the plaintiff and also her vendors as the original POA executed by Gangappa in favour Kishore Babu on 7.5.90 as claimed by the plaintiff is not placed before the court. The other POAs produced under which title to the property is claimed are not registered documents. In such circumstances, as rightly held by the trial court, courts cannot come to the conclusion on the basis of disputed documents that the plaintiff is in lawful possession of schedule property. Exs.P6 to P12 has surfaced on the basis of Ex.P2. Ex.P14 Exs.P4 and P5. These documents derive the source from the power of attorney dated 7.5.90 executed by Gangappa in favour of Kishore Babu which is not placed before the Court. Therefore on the basis of Exs.P6 to P12 the court cannot come to the conclusion that the plaintiff has made out her case that she is in possession of the property as on the date of the suit for granting an equitable relief of injunction. Therefore, in the light of these materials on record the trial Court has come to the right conclusion that the plaintiff has failed to prove that the she was in possession as on the date of the suit and defendants have tried to interfere with her possession and has rightly dismissed the suit. I do not find any infirmity or illegality in the said order of the trial Court calling for interference in this appeal.
Accordingly, it is dismissed.