The High Court
Case Details
- 1 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1038 OF 2016 (DEC/INJ) BETWEEN: 1. JANAB KHALEEMULLA AGED ABOUT 50 YEARS S/O LATE JANAB ABDUL RAZAK R/O NO.2374, ASHOKA WEST 22ND CROSS LASHKAR MOHALLA MYSURU-570 001. (BY SRI. VIVEK SUBBA REDDY, SENIOR ADVOCATE FOR SRI. R. VENKATESH, ADVOCATE) …APPELLANT Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA AND: 1. S. RAJENDRA AGED ABOUT 46 YEARS S/O LATE C. SUBBANNA R/O NO.4545, 2ND CROSS ST.MARRY’S ROAD, N.R MOHALLA MYSURU-570 001. 2. B. NARAYANA AGED ABOUT 75 YEARS S/O LATE BYRAPPA R/O NO.4389, 10TH CROSS ST.MARRY’S ROAD, N.R. MOHALLA MYSURU-570 001. (BY SRI. V.B. SHIVAKUMAR, ADVOCATE FOR R1; …RESPONDENTS - 2 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 R2 IS SERVED) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.02.2016 PASSED IN RA NO.165/2013 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.03.2013 PASSED IN OS NO.1453/2006 ON THE FILE OF THE IV ADDL. SENIOR CIVIL JUDGE, MYSORE. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 16.02.2016 passed in R.A.No.165/2013 on the file of learned V Additional District and Sessions Judge, Mysore, confirming the judgment and decree dated 04.03.2013 passed in O.S.No.1453/2006 by the learned IV Additional Senior Civil Judge, Mysore. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was defendant No.1; respondent No.1 was the plaintiff and respondent No.2 was defendant No.2. - 3 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for a declaration to declare that the plaintiff is absolute owner in possession of the suit property that the registered sale deed dated 26.05.2006, executed in favour of defendant No.1, by defendant No.2 regarding the suit schedule property is not binding on the plaintiff and for the consequential relief of permanent injunction. 3.1. It is the case of the plaintiff that one late Chikkegowda resident of Narasimharaja Mohalla, Mysore, had five sons, namely Byrappa, Siddappa, Shivanna, Subbanna and Mahadevaiah. Late Chikkegowda had many properties, including houses, sites, and agricultural lands. After his demise, his five children succeeded to the said properties, and they divided the properties under the registered partition deed dated 26.04.1946. Sy.No.119 of Belavatha village, Kasaba hobli, Mysore Taluk, was one of the properties of the joint family. The said land was dry - 4 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 earlier, and subsequently, it became a wetland measuring 1 acre 33 guntas, and the same fell to the shares of 4th and 5th sons of late Chikkegowda, namely C.Subbanna and Mahadevaiah. Mahadevaiah and Subbanna divided 1 acre of 30 guntas of the land equally half their share, i.e., 0.35 guntas each. They also obtained the said extent under the aforesaid partition deed along with the other properties. They obtained a survey sketch of an equal extent of 35 guntas out of 1 acre 33 guntas each. The southern half portion shown in the sketch fell to the share of C.Subbanna, and the northern half share fell to the share of Mahadavaiah. The Portion of 35 guntas fell to the share of C. Subbanna was renumbered as Sy.No.119/1A, and 35 guntas of Mahadevaiah’s Portion was renumbered as Sy.No.119/1. Since the date of acquisition, C.Subbanna was in possession and enjoyment of the property along with his children. C. Subbanna died on 06.09.1999,
Legal Reasoning
leaving behind his wife Smt. S. Jayamma, his daughters S. Kannikakumari, and S. Uma Maheshwari, his sons, namely S. Somashekar and S. Rajendra, and the plaintiff as his - 5 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 only legal heir. After the demise of C. Subbanna, his legal heirs are in possession and enjoyment of the suit schedule property. They also divided the family properties under a registered partition deed dated 23.03.2006. In the said partition, the plaintiff got the suit schedule property and the other properties. From the date of acquisition of the suit schedule property under the said partition, the plaintiff is in possession and enjoyment of the suit schedule property, by paying kandayam to the authority. C.Subbanna has never executed any power of attorney in favour of any person. It is contended that recently, the plaintiff felt a doubt that some persons have been dealing with the suit schedule property without any authority; as such, he obtained an encumbrance certificate of the suit schedule property, and learnt about the execution of the registered sale deed dated 26.05.2006 regarding the suit schedule property. He immediately obtained the certified copy of the registered sale deed and learnt that defendant No.2 executed a registered sale deed in favour of defendant No.1 for a sum of Rs.5,25,000/- as a total sale - 6 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 consideration amount. It is also contended that, defendant No.2 has mentioned that he is the GPA holder of C.Subbanna, and the GPA was executed on 28.10.1996. The sale deed executed by defendant No.2 in favour of defendant No.1 is not binding on the plaintiff, and it is contended that C.Subbanna died on 06.09.1999; as such, the registered sale deed dated 26.05.2006 executed in favour of defendant No.1 by defendant No.2 as a GPA, is completely concocted, and fraudulent. Hence, prays to decree the suit. 3.2. The defendant No.1 filed a written statement stating that the suit is not maintainable either in law or on facts, and that the suit is liable to be dismissed. Defendant No.1 denied the averments made in the plaint and contended that no cause of action arose for the plaintiff to file the suit. It is contended that the late ChikkeGowda had five sons, as mentioned in the plaint. He also admitted the division between five sons of the late Chikkegowda under the registered partition deed dated - 7 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 26.04.1946. Defendant No.1 further took the contention that he is the bonafide purchaser of the suit schedule property for a value without notice and is in possession and enjoyment of the suit schedule property; as such, the suit is not maintainable. It is contended that, he also invested a huge amount to develop the land. It is contended that, the plaintiff knew the transaction and had raised his objections while changing khatha. Hence, on these grounds, prays to dismiss the suit against defendant No.1. 3.3. The plaintiff filed his rejoinder and denied the averments made in the amended written statement filed by defendant No.1. 3.4. Defendant No.2 filed a written statement reiterating the written statement averments filed by defendant No.1, and accordingly, prays to dismiss the suit. 3.5. The trial court, based on the pleadings of the parties, framed the following issues and additional issues. - 8 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 1) Whether the plaintiff proves that he is the absolute owner of suit property by virtue of partition deed dated 23.02.2006 as pleaded? 2) Whether defendant No.1 proves that he is bonafide purchaser of suit property without notice and for legal consideration as such he should be protected under law as pleaded? 3) Whether the plaintiff proves that sale deed executed by defendant No.2 in favour of defendant No.1 dated 26.05.2006 is not binding on the plaintiff as pleaded? 4) Whether the plaintiff proves that he is in lawful possession and enjoyment of suit property as on the date of suit? 5) Whether the plaintiff proves that he is entitled for the relief as claimed? Additional Issues dated 27.11.2010: 1) Whether the 1st defendant proves that the plaintiff has having knowledge about the transaction between this defendant as well as 2nd defendant? 2) Whether the 1st defendant proves that he is the bonafide purchaser of the suit schedule properties? Additional issue dated 17.03.2012: - 9 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 1) Whether the defendant No.1 proves that Court fee paid by the plaintiff is not proper and sufficient? Additional Issue dated 30.06.2012: 1) Whether the 2nd defendant proves that the father of the plaintiff executed GPA and agreement of sale on 28.10.1996? 2) Whether the 2nd defendant proves that suit is barred by time? 3) What order or decree? 3.6. The plaintiff, to substantiate his case, examined himself as PW.1, and marked 26 documents as Exs.P1 to 26. On the other hand, defendant Nos.1 and 2 were examined as DW.1 and DW.2, and marked 10 documents as Exs.D1 to 10. The trial court, after recording the evidence, hearing both sides, and on assessing the verbal and documentary evidence, answered issues Nos.1, 3 to 5 in the affirmative, issue No.2 in the negative, additional issue Nos.1 and 2 dated 27.11.2010, additional issue No.1 dated 17.03.2012, and additional issue Nos.1 and 2 dated 30.06.2012 in the negative, and issue No.6 as per the final - 10 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 order. Consequently, the suit of the plaintiff was decreed vide judgment dated 04.03.2013. 3.7. Defendant No.1, aggrieved by the judgment and decree passed in O.S.No.1453/2006, preferred an appeal in R.A.No.165/2013 on the file of V Additional District and Sessions Judge, Mysuru. The plaintiff filed an application in I.A.No.II for an amendment to the plaint seeking the relief of possession. 3.8. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration. 1) Whether the appellant proves that the trial Court erred in declaring that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property, as contended in the grounds of appeal? 2) Whether the appellant proves that the trial Court erred in declaring that the registered sale deed dated 26.05.2006 executed by 2nd respondent in favour of the appellant is not binding on the respondent No.1’s legal right - 11 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 over the suit schedule property, as contended in the grounds of appeal? 3) Whether the appellant proves that the trial Court erred in non-considering he is the bonafide purchaser of suit schedule property for value, as contended in the grounds of appeal? 4) Whether the appellant proves that the trial Court erred in non-considering the plaintiff not paid proper and sufficient Court fee, as contended in the grounds of appeal? 5) Whether the respondent No.1 proves that I.A.No.II filed under Order VI Rule 17 of CPC, is deserves to be allowed at this stage? 6) Whether the respondent No.1 proves that he is entitled to get relief of (b1) and (b2) in the prayer column of his plaint in the suit under appeal, as stated the grounds in the cross- objections? 7) Whether the impugned judgment and decree of the trial Court is opposed to law, facts and circumstances of the case and is liable to interfere by this Court? 8) What order? 3.9. The First Appellate Court, on re-assessing the verbal and documentary evidence, answered points Nos.1 to 5 and 7 in the negative, point No.6 in the affirmative - 12 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 and point No.8 as per the final order. The First Appellate Court has rejected the application for amendment to the plaint filed by the plaintiff, and appeal was dismissed, confirming the judgment and decree passed by the trial Court in O.S.No.1453/2006 and the First Appellate Court allowed the cross-objection filed by the plaintiff. Consequently, in addition to the judgment and decree passed by the Trial Court under appeal, it is also further declared and decreed that the registered sale deed dated 26.05.2006 executed by defendant No.2 in favour of defendant No.1 of the suit schedule property in the office of Mysuru North Sub-Registrar, Mysuru, as 1£Éà ¥ÀĸÀ ÛPÀzÀ zÀ¸ÁÛªÉÃdÄ £ÀA§gï MYN-1-06464-2006-07 DV ¹.r. £ÀA: MYND 94£Éà zÀ ÝgÀ°è ¢£ÁAPÀ 30.05.2006 is stand cancelled, and the office is directed to send a copy of the decree to the office of Mysuru North Sub-Registrar, Mysuru, with a direction to the Sub-Registrar to note on the copy of the above-stated instrument contained in his book, and also to mentioned the factum of its cancellation. - 13 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 3.10. Defendant No.1, aggrieved by the impugned judgments passed by the Courts below, filed this Regular Second Appeal. 4. Heard the arguments of Sri. Vivek Subba Reddy, learned Senior Counsel for defendant No.1, and Sri. V. B. Shivakumar, learned counsel for the plaintiff. 5. Learned Senior Counsel for defendant No.1 submits that C. Subbanna executed a power of attorney in favour of defendant No.2 coupled with the interest. Based on the GPA executed by C.Subbanna in favour of defendant No.2, he sold the suit schedule property as a GPA holder in favour of defendant No.1 by receiving the sale consideration amount, and he submits that defendant No.2 had delivered the possession of the suit schedule property to defendant No.1. He further submits that the suit for mere declaration without seeking consequential relief of a possession, is not maintainable as per the provisions of Section 34 of the Specific Relief Act, 1963. He submits that Courts below did not consider the said - 14 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 aspect. To buttress his argument, he has placed reliance on the order passed by the Coordinate Bench of this Court in the case of M/s Jade Garden Plot Owner's Association Vs. Smt. Bhagyalakshmi and Others, in Civil Revision Petition No.88/2024, disposed on 25.10.2024. Hence, on these grounds, he prays to allow the appeal. 6. Per contra, learned counsel Sri. V. B. Shivakumar, for the plaintiff, submits that the Chikkegowda had five sons, and after the demise of Chikkegowda, the joint family property was divided under a registered partition deed dated 26.04.1946. In the said partition, Sy.No.119 measuring 1 acre 33 guntas fell to the share of C.Subbanna and Mahadevaiah and partition was effected between C.Subbanna and Mahadevaiah. C.Subbanna got 35 guntas and Mahadevaiah got 35 guntas in the said partition. He submits that C.Subbanna was in possession and enjoyment of the suit schedule property, and after his death, the plaintiff succeeded to - 15 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 the suit schedule property. He further submits that C.Subbanna never executed a power of attorney dated 28.10.1996 in favour of defendant No.2. He submits that admittedly, Subbanna died on 06.09.1999, and the registered sale deed was executed by defendant No.2 in favour of defendant No.1 on 26.05.2006. However, the plaintiff has denied the execution of a General Power of Attorney dated 28.10.1996. He submits that even assuming for the sake of argument, but not admitting that C.Subbanna executed a General Power of Attorney dated 28.10.1996 in favour of defendant No.2. The said power of attorney ceases, on the date of death of C.Subbanna as per Section 209 of the Indian Contract Act. Defendant No.2 had no right to execute a registered sale deed on 26.05.2006, after the demise of C.Subbanna. He also submits that the plaintiff has filed a suit for declaration of title, and sought a consequential relief of permanent injunction. - 16 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 7. He submits that during the pendency of the appeal, defendant No.1 dispossessed the plaintiff from the suit schedule property. He further submits that the plaintiff has filed an application for an amendment to the plaint seeking relief of possession. The First Appellate Court rejected the said application. To buttress his arguments, he relies on the judgment of the Hon'ble Apex Court in the case of Akkamma and Others Vs. Vemavathi And Others in Civil Appeal No.5884/2009 disposed on 25.11.2021. Further, he also placed reliance on the judgment of Hon'ble Apex Court in the case of M. S. Ananthamurthy and Another Vs. J Manjula Etc in a Civil Appeal Nos.3266-3267/2025 disposed on 27.02.2025 and he also submits that pursuant to the order dated 10.11.2017 passed by this court, the liberty may be reserved in favour of plaintiff to file an application under Sections 144 r/w 151 of CPC for the restoration of possession. Hence, on these grounds, he prays to dismiss the appeal, and further submit that the plaintiff will not press his cross-objections, - 17 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 reserving a liberty to file an application under Section 144 of CPC. His submission is placed on record. 8. This Court admitted the appeal to consider the following substantial questions of law: "i. Whether the plaintiff is a bonafide purchaser of the suit property for value, without notice of the death of father of the plaintiff whether the death of father of plaintiff terminates the GPA that he had executed in favour of defendant No.2 and invalidly the sale made by defendant No.2 in favour of defendant No.1, in respect of the suit schedule property on the basis of said GPA as held by the Courts Below?” Note: Due to inadvertence, instead of typing as defendant No.1, it has been typed as plaintiff. It is to be read as defendant No.1. ii. Whether the judgments and decrees passed by the Courts below contrary to Section 208 of the Contract Act are sustainable in law? " Note:- Due to inadvertence, instead of typing Section 209, it is wrongly typed as 208, it should be read as 209. iii. The first Appellate Court having held that defendant No.1 (the appellant) in peaceful possession and enjoyment of the suit property by virtue of the sale deed is - 18 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 executed by defendant No.2 in his favour whether the judgment and decree passed by the courts below are sustainable in law? 9. Reg. substantial question No.1: The plaintiff to substantiate his case, examined himself as PW.1. He has deposed in his examination-in chief that one Chikkegowda was the original propositor. He had five sons Byrappa, Siddappa, Shivanna, Subbanna and Mahadevaiah. Late Chikkegowda had house properties, sites and agricultural lands. After the demise of Chikkegowda, the sons of Chikkegowda divided the property under a registered partition deed, dated 26.04.1946. In the said partition, Sy.No.119 was jointly allotted to the share of Mahadevaiah and C.Subbanna. Later on, Mahadevaiah and Subbanna got partitioned in Sy.No.119, and divided the said property equally and the Subbanna was allotted 33 guntas and Mahadaiah was allotted 33 guntas. Based on the said partition, the names of Subbanna and Mahadevaiah were entered the names in - 19 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 the revenue records and the Survey Authorities prepared the sketch. The plaintiff came to know that defendant No.1 claimed to be the absolute owner of the suit schedule property based on the registered sale deed executed by defendant No.2 in favour of defendant No.1. On enquiry, the plaintiff came to know that defendant No.2 created the general power of attorney alleged to have been executed by Subbanna in favour of defendant No.2. Subbanna passed away on 06.09.1999 and the sale deed was executed on 26.05.2006. He deposed that as on the date of execution of the registered sale deed, defendant No.2 had no authority to execute a registered sale deed. The alleged general power of attorney terminates on the death of Subbanna. 10. Further, to prove that the plaintiff is the absolute owner of the suit schedule property, he produced the documents. Ex.P.1 is the certified copy of the registered partition deed, which discloses that a partition was effected between Subbanna and his siblings. In the - 20 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 said partition, Sy.No.119 fell to the share of C.Mahadevaiah and C.Subbanna measuring 1 acre 33 guntas. Ex.P.2 is the survey sketch prepared by the Survey Authority, Exs.P3 and P.4 are the Record of Rights, Ex.P.5 is the Krushi Pass book, Ex.P.6 is the RTC, Exs.P7 and P8 are the Tax Paid Receipts, Ex.P.9 is the Death Certificate of C.Subbanna, who passed away on 06.09.1999. Ex.P.10 is the Family Survival Certificate, it discloses the names of surviving members of deceased Subbanna. Ex.P.11 is the Partition Deed effected between the plaintiff, and his father and in the said partition, the suit schedule property fell to the share of the plaintiff. Ex.P.12 is the certified copy of the Registered Sale Deed, which discloses that defendant No.2 executed a registered sale deed in favour of defendant No.1 regarding the suit schedule property. Exs.P13 to P15 are the Encumbrance Certificates, Ex.P.16 is the RTC, Ex.P.17 is the Tax Paid Receipt, Exs.P.18 and P19 are the certified copy of the judgment and decree passed in O.S.No.291/1998. Ex.P.20 is the agreement of sale and Ex.P.21 is the certified copy - 21 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 of the affidavit filed by defendant No.8 before the Appellate Authority. Ex.P.22 is the certified copy of the order passed by the Tahsildar, Mysuru. Ex.P.23 is the certified copy of the objection, Ex.P.24 is the certified copy of the Affidavit and Consent Letter of C.Subbanna, Ex.P.25 is the MR extract, and Ex.P.26 is the Pension Payment Order Book in the name of C.Subbanna. 11. During the cross-examination, it was suggested to PW.1 that Subbanna had executed a General Power of Attorney in favour of defendant No.2 on 28.10.1996, coupled with the interest and based on the GPA executed by Subbanna, defendant No.2 executed a registered sale deed in favour of defendant No.1 on 26.05.2006. Defendant No.2 delivered the possession of the suit schedule property in favour of defendant No.1, and defendant No.1 paid the entire sale consideration amount to defendant No.2. The said suggestion was denied by P.W.1. On the other hand, defendant No.1 was examined as DW.1, he has deposed that defendant No.2 as a - 22 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 General Power of Attorney holder of C.Subbanna executed a registered sale deed on 26.05.2006 by receiving the sale consideration amount of Rs.5,25,000/- and delivered the possession of suit schedule property. He is a bonafide purchaser for value without notice. 12. The defendants to substantiate their defense, produce the documents. Ex.D.1 is the general power of attorney dated 28.10.1996, which discloses that C.Subbanna executed a general power of attorney in favour of defendant No.2, the said document is an unregistered document, Ex.D.2 is the original registered Sale Deed, which discloses that defendant No.2 as the GPA holder sold the suit schedule property in favour of defendant No.1 on 26.05.2006, and the defendant No.2 received the consideration amount of Rs.5,25,000/- from defendant No.1, and delivered the possession of the suit schedule property. Ex.D.3 is the Survey Sketch, Ex.D.4 is the Encumbrance Certificate, and Exs.D.5 to D.10 are the photographs, and the negatives. - 23 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 13. During the cross-examination, it was suggested the defendant No.1 denied the execution of general power of attorney by the C.Subbanna in favour of defendant No.2. DW.1 admitted that Subbanna died on 06.09.1999. The sale deed came to be executed on 26.05.2006 by defendant No.2 in favour of defendant No.1 and further stated that defendant No.1 is in possession of the suit schedule property. It is suggested that the plaintiff is in possession of the suit schedule property, the said suggestion was denied by D.W.1. 14. From the perusal of the entire evidence on record, it is clear that the suit schedule property, and the other properties were owned and possessed by the original propositor i.e., Chikkegowda. Chekkegowda had five sons namely Byrappa, Siddappa, Shivanna, Subbanna and Mahadevaiah. After the demise of Chikkegowda, the sons of Chikkegowda divided the properties left by the deceased-Chikkegowda under the registered partition deed dated 26.04.1946. In the said partition, Sy.No.119 - 24 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 measuring 1 acre 33 guntas, was jointly allotted to the share of C.Subbanna and Mahadevaiah. Subsequently, Subbanna and Mahadevaiah got divided Sy.No.119. Each of them have got 35 guntas of land in Sy.No.119. The property that fell to Subbanna’s share is renumbered as 119/1A and the property that fell to the share of Mahadevaiah is renumbered as 119/1. Since, the date of partition regarding 35 guntas of land, C.Subbanna was in possession and enjoyment of the suit schedule property, till his death. However, the defendants have taken a contention that C.Subbanna executed a general power of attorney on 28.10.1996 authorizing defendant No.2 to sell the suit schedule property. Admittedly, the said general power of attorney is unregistered and further, the said general power of attorney is not coupled with the interest. Ex.D.1 discloses that the stamp paper was not purchased by defendant No.2, in the name of Subbanna. The said stamp paper was purchased on 28.10.1996, in the name of Nanjayya, not in the name of Subbanna or the name of defendant No.2. The execution of the said document i.e., - 25 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 Ex.D.1 is doubtful, and further, I have perused the recitals of Ex.D.1, there is no recital that, the said document is coupled with the interest. The general power of attorney is not coupled with interest, and the said general power of attorney was not registered. The Hon’ble Apex Court, in the case of M. S. Ananthmurthy (Supra), it is held that: “Even from the combined reading of the POA and the agreement to sell, the submission of the appellants fails as combined reading of the two documents would mean that by executing the POA along with agreement to sell, the holder had an interest in the immovable property. If interest had been transferred by way of a written document, it had to be compulsorily registered as per Section 17(1)(b) of the Registration Act. The law recognizes two modes of transfer by sale, first, through a registered instrument, and second, by delivery of property if its value is less than Rs. 100/-." 15. Admittedly, the general power of attorney alleged to have been executed by Subbanna in favour of defendant No.2 is not coupled with the interest, and is not registered. - 26 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 16. Further, as rightly pointed out by the learned counsel for the plaintiff that, even assuming for the sake of argument but not admitting if Subbanna had executed a general power of attorney on 28.10.1996 in favour of defendant No.2. The said power of attorney terminates by the death of the principal, as per Section 209 of the Indian Contract Act, which reads as under: "209. Agent's duty on termination of agency by principal's death or insanity:- When an agency is terminated by the principal dying or becoming of unsound mind, the agent is bound to take, on behalf of the representatives of his late principal, all reasonable steps for the protection and preservation of the interests entrusted to him." 17. From the bare reading of Section 209, it becomes clear that when the agency is terminated by the principal, dying or becoming of unsound mind etc., the agent has to take reasonable steps to protect and preserve the interests entrusted to him. Admittedly, Subbanna died on 06.09.1999 by operation of law. The alleged general power of attorney executed by Subbanna - 27 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 in favour of defendant No.2 is terminated as per Section 209. Defendant No.1 had not acquired any right, title or interest under a registered sale deed dated 26.05.2006 executed by defendant No.2. The sale deed executed by defendant No.2 is invalid. Further, defendant No.1, without confirmation of death of Subbanna, who passed away on 06.09.1999, had purchased the suit schedule property under Ex.D.2 i.e., registered sale deed dated 26.05.2006. In view of the above discussion, I answer the substantial question No.1 in the negative. 18. Reg. substantial quention No.2: Defendant No.1 contended that Subbanna executed a General Power of Attorney in favour of defendant No.2 on 28.10.1996, authorizing him to sell the suit schedule property. Admittedly, the Subbanna died on 06.09.1999. As observed above in substantial question No.1, the general power of attorney is not coupled with any interest. In the absence of any interest coupled with GPA as per Section 209, the power of attorney stands terminated by - 28 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 the death of the principal. Hence, defendant No.2 had no right to execute a registered sale deed in favour of defendant No.1 based on the alleged general power of attorney dated 28.10.1996. The judgment and decree passed by the Courts below are sustainable in law, as per Section 209 of the Indian Contract Act. In view of the above discussion, I answer substantial question No.2 in the negative. 19. Reg.substatial question No.3: Initially, the plaintiff filed the suit for declaration of title and permanent injunction, contending that the plaintiff is the owner and in possession of the suit schedule property. It is contended that defendant No.1 is not in possession and enjoyment over the suit schedule property, and sought for the relief of permanent injunction. The Trial Court decreed the suit of the plaintiff and declared that the plaintiff is the absolute owner and in possession of the suit schedule property, and declared that the alleged sale deed dated 26.05.2006 executed by defendant No.2 in favour of - 29 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 defendant No.1 is not binding on the plaintiff's legal right over the suit schedule property. It is further ordered that defendants are restrained from interfering with the plaintiff's peaceful possession over the suit schedule property by way of a permanent injunction. Defendant No.1, aggrieved by the judgment and decree passed by the Trial Court, preferred an appeal. During the pendency of the appeal, defendant No.1 disposessed the plaintiff from the suit schedule property. The plaintiff filed an application for an amendment to the plaint seeking the relief of possession, but the said application was rejected. 20. Sri. Vivek Subba Reddy, learned Senior counsel for defendant No.1 submits that a mere suit for declaration of title without the seeking relief of possession, is not maintainable. The bar is contained in the proviso to Section 34 of the Specific Relief Act, 1963. In my opinion, it could not be applied to the plaintiff’s case as a consequential relief for permanent injunction for interfering with the suit land was claimed. The prohibition - 30 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 contained in the proviso to Section 34 of the Specific Relief Act could operate only, if the sole relief is for declaration without any consequential relief. In the plaint, the plaintiff has sought the relief of declaration of title, and the consequential relief of permanent injunction. Such relief would protect the suit from being dismissed on the ground of maintainability. It is the fact that the plaintiff ought to have claimed the relief of possession, given the factual background of this case, but the plaintiff has filed an application for an amendment to the plaint, but the First Appellate Court rejected the said application. The Hon’ble Apex Court, in the case of Akkamma (supra) held that there is no bar in the specific relief Act, 1963 in granting standalone declarative decree. “The trial Court made a positive finding that, the plaintiff is the owner of the suit property. But, it was held that, in the absence of the relief of possession by the plaintiff, a declaration of title cannot be granted. We have already expressed our disagreement with this line of reasoning. It seems to be a misconstruction of the provisions of Section 34 of the - 31 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 Specific Relief Act, 1963. The Trial Court and High Court have proceeded on the basis that the expression “further relief” employed in that provision must include all the reliefs that ought to have been claimed or have been granted. But in our view, that is not the requirement of the said proviso. This takes us to the corollary question, whether the 1987 suit would have been held to be barred under the principle contained in Order 2 Rule 2 of the Code of Civil Procedure, 1908. In our opinion, the said provisions of the code would not apply in the facts of this case, as the denial of legal rights in 1987, the suit is failed on two alleged incidents of 15th and 25th February 1987. This allegation can give rise to claims for declaration that obviously could not be made in the 1982 suit. The claim for declarative relief could be rejected on merit, but the suit in such cases could not be dismissed, invoking the principles incorporated in Order 2 Rule 2.” 21. Further, held that there is no bar in granting such a decree for declaration, and such declaration cannot - 32 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 be denied on the reasoning that no purpose would be served in giving such a declaration. May be such a declarative decree would be non-executable in the facts of the case, but for a reason alone, such a declaration cannot be denied to the plaintiff, and held that the plaintiffs are entitled to a declaration that they are the owners of the suit property. Further, the plaintiff has filed an application in I.A.No.1/2017 to vacate an interim order. This Court has passed the following order on 10.11.2017: "ORDER ON I.A.NO.1/2017 I.A.No.1/2017 is filed by the respondent No.1 seeking to vacate the interim order. Learned counsel for respondent No.1 submits that respondent No.1 was the plaintiff before the trial Court. The suit was decreed and challenging the decree of the trial Court, the defendant made an appeal before the district Court, Mysore. It is the case of the respondent No.1 that he was dispossessed from the suit property during the first appeal. This allegation of pendency of respondent No.1 is now disputed by the appellant. Since it is alleged that the respondent No.1 was dispossessed from the suit property during the pendency of first appeal, I am of the opinion that if really respondent No.1 was dispossessed from the suit property during pendency of the appeal, he will have to be restored with possession in case this appeal is dismissed on merits. So for this purpose, respondent No.1 can make an application under Section 151 of CPC seeking restoration of possession. If this application is filed, it will be considered along with merits of the appeal." - 33 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 22. From the perusal of the order dated 10.11.2017, this Court has opined that if respondent No.1- plaintiff was dispossessed from the suit property during the pendency of the appeal, he will have to be restored with possession in case, this appeal dismissed on merits. So, for this purpose, plaintiff-respondent No.1 can make an application under Section 151 of CPC seeking restoration of possession. Admittedly, this Court has already opined on 10.11.2017 that if the appeal is dismissed, the plaintiff is entitled to restoration of possession by filing a necessary application. Thus, the argument of learned Senior counsel for defendant No.1 does not hold good that, the suit for mere declaration without seeking a relief of possession is not maintainable. The issue has been already considered and answered by the Hon’ble Apex Court in Ananthmurthy (supra). In view of the above discussion, I have answered substantial question No.3 in the partly in the negative and partly in the affirmative. - 34 - NC: 2025:KHC:12615 RSA No. 1038 of 2016 23. In view of the above discussion, I proceed to pass the following:
Decision
ORDER i. The appeal is dismissed. ii. The judgments and decrees passed by the Courts below are hereby confirmed. Liberty is reserved for the plaintiff to file a necessary application as per the order dated 10.11.2017 passed by this Court. In view of the dismissal of the appeal, I.A.No.1/2016 does not survive for consideration, and is accordingly, disposed of. SKS, AKA Sd/- (ASHOK S.KINAGI) JUDGE