MR. P. KRISHNAPPA v. SRI NOOR AHMED, ADVOCATES)

The present appeal is preferred by the plaintiff assailing the judgment and decree dated 08.12.2021 passed in O.S. No. No. 8388/2016 on the file of the XIX Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred to as ‘trial Court’ for short). By the said judgment, the trial Court dismissed the suit filed by the plaintiff for (1) permanent injunction restraining the defendants from interfering with his alleged possession of the suit schedule property, and (2) declaration that the sale deed dated 06.10.1989 and the gift deed dated

09.12.2015 are sham, invalid and not binding on the rights of the plaintiff. Brief facts. Plaint averments

2. Plaintiff claimed ownership and possession of House No. 56, House List Khata No. 107-163-4, Babusabpalya Village, Nanjappa Garden, Bengaluru - 4 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR (hereinafter referred to as ‘the suit property’). The claim of the plaintiff is that he has purchased under a registered sale deed dated 15.11.2010 from the erstwhile owners through the GPA holder Subbappa (defendant No. 3). The title derived by the plaintiff is through partition deed of

30.11.1953 and the GPA dated 30.07.1982 executed in favour of Subbappa by the owners. It is averred that after purchase, katha is mutated, small house has been constructed, taxes have been paid and the plaintiff is in peaceful possession. The defendants tried to trespass into the suit property and hence he sued for perpetual injunction and declaration. Written statement averments. Written statement of defendant No. 1.

3. Defendant No. 1 claimed that he has purchased the suit property from the original owner Anjanappa under the sale deed dated 06.10.1989 and is in continuous possession since 1989, houses constructed and taxes have been paid. Pursuant to the sale deed in his favour, under - 5 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR the gift deed dated 09.12.2015, he has gifted the suit property to his son-defendant No. 2. The plaintiff has manipulated the documents and cannot claim any right under the alleged GPA holder to have executed a sale deed in his favour. Written statement of defendant No. 2.

4. It is averred that the property originally belonged to Anjanappa and his children, who formed a layout and defendant No. 1, who is his father, purchased under the sale deed of the year 1989. The tax records stand in his name after the gift deed executed in his favour the year 2015, denied the plaintiff's ownership/possession. Written statement of defendant No. 3.

5. Defendant No. 3 is the GPA Holder and the plaintiff's vendor, supported the plaintiff's title and possession and confirmed the GPA in his favour executed by the original owners in the year 1982 and the - 6 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR subsequent sale deed of the year 2010 in favour of the plaintiff. It is averred that defendant No. 1 created a sham sale deed of the year 1989 and sought to decree the suit of the plaintiff.

6. The trial Court, upon appreciation of the oral and documentary evidence, held that the plaintiff's title is under cloud, since the earlier registered sale deed of the year 1989 referred, exist and that the plaintiff has not sought relief of declaration of title and possession, but only an injunction and for invalidation of the defendant's sale deed. The trial Court relied upon the judgment of the Apex Court in the case of Anathulla Sudhakar vs P. Buchi Reddy (dead) by L.Rs and Others1 (Anathula) to hold that when the title is under cloud and the plaintiff is out of possession, remedy is sought for declaration and possession, not a bare injunction. The trial Court observed that the plaintiff was not in possession, rather defendant No. 1 was in possession since 1989 and later defendant 1 (2008) 4 SCC 594 - 7 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR No. 2 through a gift deed in the year 2015. The trial Court further observed that the sale deed (Exhibit D2) in favour of defendant No. 1 established prior transfer by original owner Anjanappa to defendant No. 1 and that the plaintiff's sale deed dated 15.11.2010 executed by the GPA holder was subsequent and ineffective against the prior registered conveyance. By the judgment and decree, the trial Court dismissed the suit with costs and held that the plaintiff is not entitled for injunction or declaration.

7. Heard learned counsel for the appellants and learned counsel appearing for respondents 1 and 2 and perused the record.

8. The counsel appearing for the appellants would urge the following grounds: (i) The registered sale deed dated 15.11.2010- Exhibit P1 was executed by Subbappa (defendant No. 3, son of Chikkappa), acting as a GPA holder of the original owners Anjanappa, Krishnamurthy, A. Rajanna and - 8 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR Sridhar. The General Power of Attorney-Exhibit P2 dated

30.7.1982, duly authorises Subbappa to deal with the property, and affidavit-Exhibit P3 of the owners further affirm such authority. It is submitted under arrangement, Subbappa remained in possession until 2010, and upon execution of the sale deed, the plaintiff was put in possession. (ii) The defendants rely upon the sale deed dated

06.10.1989-Exhibit D2, which purports to relate to House List Khata No. 109/158 measuring 45 x 41 feet. It is submitted that Exhibit D2 is a fictitious document, since the khata number is not mentioned in the sale deed and the documents relied upon i.e. the Gruhapravesha invitation-Exhibit D3 is of the year 1987, whereas their sale deed itself is of 1989, which is inconsistent. Further, it is argued that the tax entry-Exhibit D4 shows the defendant's name as early as 1982, though the alleged purchase was in the year 1989, raising serious doubts. It is submitted that except D6 and D7 the defendants have - 9 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR not produced any reliable, continuous records of ownership. (iii) That the GPA dated 30.07.1982-Exhibit-P2 was coupled with interest, supported by the affidavit of the owner-Exhibit P3. Once such an interest was created, the executants had no right thereafter to unilaterally revoke or execute a fresh sale deed in 1989 in favour of the defendants. Therefore, Anjanappa had no subsisting authority in 1989 to convey the property to defendant No.1. (iv) The plaintiff's possession is referable to GPA and affidavit executed in the year 1982. Section 53A of the Transfer of Property Act (doctrine of part performance) protects such possession, even though the sale deed was registered only in 2010. Registration of GPA transaction was made compulsory only after the amendment of 2001 to the Registration Act. Hence, the 1982 GPA coupled with interest remains valid. - 10 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR (v) The plaintiff, being faced with a cloud on his title by a sham and a fabricated document Exhibit- D2 is entitled to seek a declaration under Section 31 of the Specific Relief Act, 1963, to have such instrument adjudged void and unenforceable. (vi) The evidence of DW1 at para No. 3 of his deposition reveals that the entire defence case rests on him. Defendant No. 1, though the principal purchaser under Exhibit D2, did not enter the witness box to prove his alleged purchase. This omission calls for an adverse inference against the defendant as per the established principles of evidence. Reliance is placed on the following judgments: (a) Hussain Ahmed Choudhury and Others vs Habibur Rahman (dead) through LRs and Others2 (Hussain Ahmed) 2 Civil Appeal No. 5470/2025 - 11 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR (b) Mohammed @ Podiya vs Assistant Commissioner3 (Mohammed @ Podiya) (c) Meenaxi Madhukar Naik vs Pandurang Bhimrao Laxmeshwar4 (Meenaxi Madhukar Naik) (d) Suraj Lamp and Industries Private Limited vs State of Haryana and Another5(Suraj Lamp)

9. Learned counsel for the respondent-defendants 1 and 2 would urge the following grounds: (i) The plaint does not assert or clarify that the property claimed by the plaintiff is the same as that purchased by the defendants. On the contrary, Exhibits produced by the plaintiff themselves demonstrate discrepancy in measurements and katha numbers, thereby weakening the plaintiff's case. (ii) The plaintiff has sought only a bare injunction, without seeking declaration of ownership or possession. As 3 ILR 1993 KAR 2306 4 MFA No. 22850 of 2013 of the Dharwad Bench. 5 (2012) 1 SCC 656. - 12 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR laid down by the Apex Court in M.S. Ananthamurthy and Another vs J Manjula and Others6 (Ananthamurthy) when a title is in dispute or clouded, a suit for injunction simplicter is not maintainable. As laid down by the Apex Court in the case of Anathulla stated supra, when title is in dispute or clouded, a suit for injunction simplicitor is not maintainable. The proper remedy is a declaration and possession, not merely an injunction. The plaintiff’s reliance on Exhibit P2-GPA of the year 1982 and Exhibit P3 -affidavit is misconceived. Placing reliance upon the decision of the Apex Court in the case of Suraj Lamp stated supra emphasising on para 26 submits that a GPA, affidavit or an agreement to sale cannot transfer ownership of the immovable property. At best, these instruments permit representation, but do not confer title. (iii) The plaintiff’s contention that the possession flows from GPA and affidavit is untenable. Section 53A of the Transfer of Property Act, 1884, (‘TP Act’ for short), 6 Civil Appeal Nos. 3266-3267/2025 - 13 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR protects possession only if the underlining agreement is registered. Under Section 17 (1)(a) of the Registration Act, 1908 (introduced in 2001) agreement relating to possession must be registered to claim protection under Section 53A. Even if Exhibits P2 and P3 are treated as agreement of sale “they are unregistered”, hence the plaintiff cannot invoke Section 53A. (iv) The GPA relied upon is only a General Power of Attorney and does not demonstrate transfer of any ownership interest. Therefore, Section 202 of the Contract Act has no application rather Section 207 of the Contract Act applies, which allows revocation of such agency. (v) The plaintiff has produced no credible evidence to establish lawful possession. The tax receipts were paid on a single day, which clearly does not indicate continuous ownership. No electricity or municipal record stand in the name of plaintiff. In contrast, defendants have produced registered sale deed- Exhibit D2 and the BBMP and - 14 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR BESCOM records, ration photographs demonstrating his uninterrupted possession. Decisions relied upon by the respondents: (a) Channegowda and Another vs N.S. Vishwanath and Others7 (Channegowda) (b) Rajan Singh vs Roshan8 (Rajan Singh) (c) Bishan Chand vs Ved Prakash and Others9 (Bishan Chand) (d) Shakeel Ahmed vs Syed Akhlaq Hussain10 (Shakeel Ahmed)

10. Having heard the learned counsel for the parties, the points that arises for consideration are that, (i) Whether the plaintiff has proved his lawful possession and enjoyment of the suit schedule property on the basis of the sale deed dated

15.11.2010 executed by the GPA holder? 7 RSA 193/2011. 8 MANU/DE/0427/2020 9 MANU/DE/3440/2018 10 MANU/SC/1257/2023 - 15 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR (ii) Whether the plaintiff is entitled to protection under Section 53A of the TP Act on the strength of an unregistered GPA and affidavit executed in 1982? (iii) Whether the judgment and decree of the trial Court warrants any interference?

11. All the points are taken up together in order to avoid repetition of facts. The principal question that arises for consideration is, whether the plaintiff-appellant can rely upon Exhibit P2-the GPA dated 30.07.1982 and Exhibit P3 (affidavit executed by the original owners) to claim either ownership or protection of possession under Section 53A of the TP Act, notwithstanding the admitted fact that the defendants are armed with the prior registered sale deed dated 16.10.1989 (Exhibit D2).

12. The contention urged on behalf of the appellant is that the GPA and affidavit, having been executed in the year 1982, are the documents of a period prior to the registration of the (Amendment) Act 2001 of the - 16 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR Registration Act, and hence are not hit by Section 17(1) (a) of the Registration Act, 1908, which mandates compulsory registration of agreements relating possession for invoking the benefit of Section 53A of the TP Act. It is further urged that in light of para 55 of the decision of the Apex Court in the case of Ananthamurthy (supra) possession under such pre-2001 document continues to enjoy statutory protection. The Apex Court in the case of Ananthamurthy at para No. 55, observed as under: “55. The High Court rightly held that even though the GPA and the agreement to sell were contemporaneous documents executed by the original owner in favour of the holder, this alone cannot be a factor to reach the conclusion that she had an interest in the POA. Thus, even though the GPA agreement sell were contemporaneous documents executed by the original owner in favour of the same beneficiary, this cannot be the sole factor to conclude that she had an interest in the subject-matter. Even if such an argument were to persuade this Court, the document must have been registered as per - 17 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR Section 17(1)(b) of the Registration Act. In the absence of such registration, it would not be open for the holder of the POA to content that she had a valid right, title and interest in the immovable property to execute the registered sale deed in favour of appellant no. 2.”

13. A careful reading of the above paragraph reveals that the Apex Court drew a distinction between (i) agreements of sale executed prior to 2001, where Section 17 (1(a) is unapplicable and protection under Section 53A may still be available, and (2) mere GPA or affidavits, which by their very nature do not constitute agreements of sale and therefore cannot attract Section 53A. In the present case, Exhibit P2 is only a general power of attorney conferring authority to act, and Exhibit P3 is not a supporting affidavit, neither document answers description of an “agreement to sell” capable of being specifically enforced. Even assuming, that Exhibit P3 is treated as an “agreement of sale”, the inevitable consequence as per Ananthamurthy's judgment stated supra is that the plaintiff ought to have sought specific - 18 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR performance of such agreement. Having limited his relief to bare injunction and declaration, without seeking either a specific performance or declaration of title, the plaintiff cannot be permitted to stretch these documents into ownership or possession rights.

14. The law in this regard stands firmly settled by Suraj Lamp (supra) wherein the Apex Court in ara No. 26 emphatically declared that the transactions through a SA/GPA/Will are not valid conveyances of title. They may at best have authority to act, but they cannot transfer ownership or confer legal title to immovable property.

15. Further the clarity is found out in the recent pronouncement of the Apex Court in the case of Ramesh Chand (D) THR. LRs vs Suresh Chand and Another11 (Ramesh Chand). The Apex Court held that an agreement to sale does not convey ownership and cannot by itself cloth the purchaser with title, at best, it furnishes a right 11 CA No. 6377/2012 decided on 01.09.2025 - 19 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR to seek specific performance. Importantly it was reiterated that even long possession under such an agreement does not into ownership absent registered deed of conveyance.

16. On the test of the binding precedents, the appellant’s reliance on Exhibits P2 and P3 is wholly misplaced. These documents, even if genuine, do not vest ownership, nor do they afford statutory protection under Section 53A of the TP Act as they are neither registered conveyances or enforceable agreements of sale. In contrast, the defendants have established their title through Ex.D2. This Court in the case of Channegowda (supra) held that when a general power of attorney GPA is, “coupled with interest”, meaning it transfers rights that are beyond the agency and effectively resembles a sale. It constitutes an interest in immovable property. Such a document must be registered under Section 17 (1(b) of the Registration Act, otherwise it is invalid. The Court rejected the arguments that a GPA need not be registered - 20 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR simply because is not among expressly listed instruments. The Delhi High Court in the case of Rajan Singh and Bishan Chand stated supra observed that an agreement of sale does not create any right in the property to which it pertains and merely gives a right to the agreement purchaser to seek specific performance thereof. No rights in immovable property are created, even on passing of a decree for specific performance until execution of a sale deed. The Court emphasized that the unregistered instruments like the GPA or agreement to sale, even if coupled with subsequent affidavits, are insufficient for granting title or possession when filed alone. The Apex Court in Shakeel Ahmed (supra) held that the reliance on unregistered documents such as GPA, agreement to sale, affidavit is insufficient to confer title or possessory rights immovable property. These instruments do not substitute for a registered sale deed, even if the Courts below pass decree based on a registered sale deed. The Apex Court in the recent - 21 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR decision of Ramesh Chand (supra) held that an agreement to sale is not a registered conveyance under Section 54 of the TP Act and therefore does not confer title, at best entitling specific performance. A GPA grants management powers to act on behalf of the owner, but does not itself create title. The reliance is placed by the learned counsel for the appellant in the case of Hussain Ahmed (supra), wherein the Apex Court clarified that non-executants cannot be forced to seek cancellation of a deed they were never part of, a declaration that the deed is not binding on them is suffice. In the present case the appellant has not sought for declaration under Section 34 of the Specific Relief Act, 1963, especially when there was a cloud over the title of the plaintiff. The decision of Mohammed @ Podiya and Meenaxi Madhukar Naik placed reliance by the appellant are distinguishable and not applicable to the present facts. The Apex Court in the case of Anathula Sudhakar (supra) has summarized at para No. 17 as under: - 22 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR “17. There is some confusion as to in what circumstances the question of title will be directly substantially issue, in what circumstances the question of title will be collaterally and incidentally in issue, in a suit for injunction simpliciter. In Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple vs. Rajanga Asari AIR 1965 Mad. 355, the Madras High Court considered an appeal arising from a suit for possession and injunction. The defendant contended that the plaintiff had filed an earlier suit for injunction which was dismissed, and therefore the plaintiff was precluded from agitating the issue of title in the subsequent suit, being barred by the principle of res judicata. It was held that the earlier suit was only for an injunction (to protect the standing crop on the land) and the averments in the plaint did not give rise to any question necessitating denial of plaintiff's title by the defendant; and as the earlier suit was concerned only with a possessory right and not title, the subsequent suit was not barred. There are several decisions taking a similar view that in a suit for injunction, the question of title does not arise or would arise only incidentally or collaterally, and therefore a subsequent suit for declaration of title would not be barred.” - 23 - NC: 2025:KHC:36284 RFA No. 173 of 2022 HC-KAR

17. For the foregoing reasons, this Court holds that the plaintiff-appellant has failed to establish any valid title, right or lawful possession over the suit schedule property on basis of the GPA and affidavit. The reasoning of the trial Court that the plaintiff's title is under cloud and that his remedy lay in seeking declaration and possession rather than bare injunction does not suffer from any perversity or illegality and the same does not call for any interference and this Court pass the following : ORDER (i) The Regular First Appeal is hereby dismissed. (ii) The judgment and decree dated 08.12.2021 passed in O.S. NO. No. 8388/2016 on the file of the XIX Additional City Civil and Sessions Judge, Bengaluru, stands confirmed. Sd/- ____________________ JUSTICE K.S. HEMALEKHA CKL List No.: 1 Sl No.: 29