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Judgment
Ravi V. Malimath, J.—The case of the plaintiffs is that suit property originally belong to the father of the first plaintiff. It was granted in his favour by the Government since he had rendered service as a Freedom fighter. After his death, the first plaintiff succeeded to the suit schedule property as the only legal heir; that the father of the first plaintiff had not mortgaged or alienated the suit schedule property in favour of anybody during his life time and after his death, all the records have been effected only in the name of the first plaintiff and as such, she is in possession and enjoyment of the suit schedule property as absolute owner; that she is getting the land cultivated under her personal supervision and direction; that she has not alienated the property to anybody; that the defendants having indulged in acts of illegality and fraudulently attempted to deprive her of the suit schedule property, they are attempting to dispossess her. During November 1991, the defendants interfered with the possession of the suit schedule property. She issued a legal notice to them. The suit property was agreed to be sold to the first defendant by her father and she has confirmed the agreement of sale. She has received the entire consideration; that the first defendant has assigned the agreement of sale in favour of the second defendant and that the first plaintiff had also given a declaration that she had relinquished all her rights over the suit schedule property in favour of the second defendant; that the plaintiff No. 1 had also executed general power of attorney, the same was denied by plaintiff No. 1; that she has not executed any document in favour of the defendants. Hence, the instant suit was filed seeking for a declaration that the plaintiff No. 1 is the absolute lawful owner and in possession and enjoyment of the suit schedule property and for an order of restraining the defendants. On suit summons being served, the defendants entered appearance. They denied the suit averments, that the suit property was sold to the first defendant by the father of the plaintiff No. 1 for net consideration of Rs. 6,000/- per acre. The boundaries were marked to an extent of 9 acres 22 guntas. He executed agreement dated 16.3.1981 agreeing to sell the said extent of land. Pursuant to the said agreement, the first defendant has made payment from time to time. The second defendant purchased the land around the said land measuring 9 acres 22 guntas, which has been wrongly described in the schedule property; that the first defendant assigned his right and interest by Deed of Assignment dated 24.10.1991; that the plaintiff No. 1 being the legal heir of M.K. Lakshman has confirmed the Sale agreement in favour of the 1st defendant. She has even stated that she has also received Rs. 8,000/-. She has also executed General Power of Attorney dated 23.05.1990 appointing the first defendant as General Power of Attorney to deal with the suit schedule property. She had also executed a declaration to the effect that she has received full consideration and that she nor any of her family members have no objection for acquiring the said land in favour of the second defendant; that she would not claim enhancement of compensation in the event of such acquisition; that possession of the land was delivered to the defendants ever since the date of agreement. Hence, it is pleaded that the suit be dismissed.
By the order dated 14.9.1992, the trial Court framed the following issues for consideration:-
Whether the plaintiff proves that she is the absolute owner in possession and enjoyment of the suit property?
Whether the plaintiff proves the interference of the defendants?
Whether the plaintiff is entitled for mandatory injunction as prayed for?
Whether the suit is barred by time?
To what relief the plaintiff is entitled to?"
Evidence was let in. The plaintiff No. 1 was examined as PW-1 and produced three documents. Issues Nos. 1, 2, 3 and 5 were held in the affirmative and issue No. 4 was held in the negative. The suit of the plaintiffs was decreed. The defendants were directed to demolish or remove any structures put up in the layout within two months. Aggrieved by the same, the defendants filed R.A. No. 54/2000. The appeal was allowed. The judgment and decree of the trial Court was set-aside. The matter was remanded to the trial Court for a fresh consideration by the order dated 31.1.2006. Subsequent to remand, an application was made seeking to implead plaintiff Nos. 2 to 4 to the suit. The same was allowed. They were impleaded as plaintiff Nos. 2 to 4 in terms of the order dated 6.11.2008. The plaint was not amended. Issues were not reframed. The trial proceeded on the issues framed earlier. On this occasion, the first plaintiff was examined as PW-1 and two other witnesses were examined and 14 documents were marked. The President of the defendant society was examined as DW-1 and 14 documents were marked. Issues Nos. 1, 2 and 3 were held in affirmative, issue No. 4 was held in the negative. The suit was decreed. The plaintiffs were held as owners in possession of the suit schedule property and a mandatory injunction was issued against the defendants. Aggrieved by the same, the defendants preferred an appeal before the first Appellate Court. The first Appellate Court allowed the appeal and set-aside the judgment and decree passed by the trial Court. Consequently, the suit of the plaintiffs was dismissed. Hence, the present appeal by plaintiff Nos. 2 to 4.
By the order dated 27.11.2012, the appeal was admitted to consider the following substantial question of law:-
a. Whether the Lower Appellate Court was right and justified in reversing the findings recorded by the Trial Court holding that the Agreement of Sale-Ex-P5 had not been proved, particularly in the wake of the fact that Chikkanna in whose favour the Agreement of Sale was allegedly executed did not contest the suit by filing any written statement and was not examined to prove the document?
b. Whether the Lower Appellate Court was right and justified in dismissing the suit filed by the plaintiffs claiming ownership over the property only the basis of the documents relied on by the defendants such as Agreement of Sale-Ex. P5, Deed of Assignment-Ex. D1 and certain receipts said to have been passed by plaintiff No. 1, in the absence of defendants taking any steps for enforcing their right under the said agreement/or deed of assignment by instituting any proceedings?
c. Whether the Lower Appellate Court was justified in placing reliance on the Deed of Assignment said to have been executed by Chikkanna in favour of 2nd defendant-Society assigning the rights under the Agreement of Sale, for the purpose of non-suiting the plaintiffs?
d. Whether the Lower Appellate Court committed any error in construing the tenor and the terms of the documents particularly, the Deed of Assignment-Ex. D1 and the Agreement of Sale-Ex. P5?
Both the learned counsels submit that the substantial questions of law requires to be reframed.
I have heard learned counsels on the same. Consequently, the substantial question of law is reframed as follows:-
''Whether the first plaintiff proves that she is the absolute owner and in possession and enjoyment of the suit property?
Accordingly, the learned counsels have addressed arguments and I have heard both the learned counsels on the reframed substantial question of law.
Ex-D1 dated 15.6.1988, wherein it is stated that in consideration of the sums received under the said agreement, all the rights and interest in the land bearing Sy. No. 125 and the possession of the schedule land with relevant documents, such as General power of attorney, Agreement, Declaration and other writings and evidences have been delivered to the Karnataka Government Class ''D'' Employees'' House Building Co-op Society Ltd., for forming of the sites; that the society is hereby authorized to act according to the General power of attorney dated 23.5.1990 and that all terms and conditions of the Agreement dated 15.6.1988 would be honoured. Ex-D5 is the Agreement to sell executed by the father of the first plaintiff in favour of the first defendant dated 16.3.1981, with various terms and conditions are mentioned therein and the amount received. It is this agreement that was assigned in terms of Ex-D1. Ex-D6 is a letter written by the father of the first plaintiff for having received the amounts and also stating that it has been mutually decided to get the lands acquired by the Government under the provisions of the Karnataka Land Acquisition Act in favour of the very same society; that consent is given for acquiring the lands and that the balance payable is Rs. 41,400/-. The said document has been signed by the father of the first plaintiff as well as by the first plaintiff herself. Ex-D7 is the General Power of Attorney executed by the first plaintiff. She appoints the first defendant to act on her behalf to negotiate, sell and get acquired the schedule land and generally to do all acts or duties for the said purpose. Therein, she narrates that the said land has been sold by her father under the Agreement to sell, which is also confirmed by her and after his death, she has relinquished all her rights for acquiring the said land in favour of the said society and that consideration has been received and various other clauses mentioned therein. Ex-D8 dated 23.5.1990 is a declaration made by her stating that she is the owner of the schedule property; that an Agreement to sell/transfer/relinquishment was executed in favour of the respondent society through the first defendant and she has no objection to get the same acquired in favour of the society; that full consideration has been received for transferring the said land and neither she nor any of her family members have any claim over the same. She has also reiterated that she has executed a General Power of Attorney in favour of the first defendant which has been narrated hereinabove as Ex-D7.
Exh-D9 and D10 are the receipts of the amounts having been acknowledged by the first plaintiff. Exh-D11 is yet another letter of consent with regard to receiving the amount for executing the Agreement to sell etc.,
On considering these documents, the trial Court was of the view that the defendants have not proved their case, that no suit has been filed by the defendants nor any action has been taken by them against the plaintiff No. 1 or her father in order to execute the registered sale deed. On the contrary, the documents relied upon by the plaintiffs in terms of Exhs-P1 and P2 - RTC extracts were accepted by the trial Court. The tax paid receipts were taken into account to record a finding that the plaintiff No. 1 is in possession of the suit schedule property; that the sale deed executed by plaintiff No. 1 to plaintiff Nos. 2 to 4 marked as Exs-P8 and P9 were considered by the trial Court as documents of title of the first plaintiff. Therefore, in view of in-action on the part of the defendants, they have impliedly admitted the title in possession of the plaintiff No. 1. The trial Court further held that in terms of evidence of PW-2 to 4 after purchase of the property, their names have been entered in the relevant records to show that plaintiffs are in possession of the suit schedule property. On considering Ex-D1 Assignment Deed, the trial Court was of the view that since no person can pass a better title what he had'', no title could pass to the second defendant based on Exh-D1. So far as, Ex-D5 is concerned viz., Agreement to Sell executed by the father of plaintiff No. 1, the trial Court was of the view that due to non-examination of any witness to speak about the said document would run fatal to the case of the defendants. Therefore, the genuineness of Ex-D6 consent letter as well as consolidated receipt in terms of Exhs-D9 and D10, were accepted; that Ex-D7 viz., General Power of Attorney would not have any evidentiary value since the same has not been registered as per Section 49 of the Registration Act. Therefore, none of the exhibits of the defendants were accepted by the trial Court. The suit was consequently decreed.
Thereafter the Appellate court considered the evidence and material and re-appreciated the same. The First Appellate court was of the view that the trial Court has failed to consider the Agreement of Sale dated 16.3.1981 in terms of Ex-D5; in terms of where of, the possession has also been delivered to defendant No. 1. The plaintiff No. 1 also witnesses the receipt of money by her father. She has also executed consent letter dated 16.3.1981 alongwith her father and has also received sale consideration. It held that the Agreement of Sale is not a compulsorily registerable document and at the most penalty could be collected on the said document. Hence the trial Court has come to a wrong conclusion while declining Exs-D5 and D6. The Appellate Court held that Ex-D5 is sufficiently stamped and it requires to be received in evidence.
It held that the plaintiff No. 1 having also executed a General Power of Attorney dated 23.5.1990, after the death of her father has narrated all the facts with regard to the Agreement of sale of the property and subsequent events. Ex-D7 which is the General Power of Attorney executed by the first plaintiff was not accepted by the trial Court. This is an error committed by the trial Court. On considering Ex-D7 viz., General Power of Attorney executed by the first plaintiff, first plaintiff herself has declared in terms of Exs-D8 and receipts in Exhs-D9 and D10. The reasoning assigned by the trial Court was reversed. Consequently, in view of the documentation signed by the first plaintiff herself, the Appellate Court felt that the judgment and decree of the trial Court is unsustainable. Consequently, the appeal was allowed and the suit was dismissed.
Heard learned counsels and examined the records.
The plea of the plaintiffs is that a decree for declaration and permanent injunction was filed in the year 1992. The suit was decreed at the first instance and thereafter was set-aside by the first Appellate Court and remanded for a fresh consideration. Later on, Exhs-P4, P8 and P9 viz., sale deeds were executed by the first plaintiff in favour of plaintiff Nos. 2 and 4 on 6.9.2006. It is only thereafter, an application was made seeking to implead the purchasers. By the order dated 6.11.2008, plaintiff Nos. 2 to 4 were added on to the suit. What is sought to be contended is absolute ignorance of the documents exhibited by the defendants. The case is one of denial by the plaintiffs. Plaintiff No. 1 exercised her rights in terms of RTC, tax-paid receipts, survey sketch etc., Further documentation produced viz., the original sale deed executed by the father of the first plaintiff would clearly show that the property was sought to be sold in favour of the first defendant. The first defendant by Ex-D1 assigned the document in favour of the second defendant. Ex-D5 would clearly narrate that the father of plaintiff No. 1 having received the initial amount, the first defendant was put in possession of the suit schedule property. This is a document executed by the father of the first plaintiff. It documents handing over possession to the first defendant. Therefore, it cannot be said that the plaintiff or her father was in possession of the suit schedule property from the date of execution of Ex-D5. Ex-D6 is dated 4.8.1988, which is executed by the father of the first plaintiff and the first plaintiff, wherein, they confirm that all litigations in respect of the said land have been solved by the first defendant; that the sale could not be finalized due to difficulties arising out of the Karnataka Town & Country Planning Act; that they would wait till circumstances permitted them to complete the sale transaction; that it is mutually decided to acquire the land under the provisions of Karnataka Land Acquisition Act in favour of the society; that she herself accords consent for the said acquisition and that the balance payable will be Rs. 41,400/-. This is signed not only by the father of the first plaintiff but by the first plaintiff also. Yet again Ex-D7 is executed on 23.5.1990 executed by the first plaintiff. She narrates the Agreement of sale executed by her father in favour of the first defendant and relinquishing all her rights for acquisition in favour of the second defendant; for having received full consideration for the acquired schedule property by various receipts and therefore to appoint an attorney viz., the first defendant to do all such acts that are necessary for negotiations, sale of the said property etc., These documents are signed by the first plaintiff herself. There is yet another document dated 23.5.1990 styled as declaration, wherein the very same issues have been narrated therein viz., with regard to Agreement of sale executed by her father in favour of the second defendant, receipt of sale consideration etc., This also has been signed by the first plaintiff. Ex-D9 is the receipt of money towards sale of the suit schedule property. Ex-D10 is yet another receipt for having received additional amount of Rs. 8,000/-. A letter of consent in terms of Ex-D11 dated 23.5.1990 is signed by the first plaintiff. She narrates, alongwith her father, she has received Rs. 35,000/- and the balance Rs. 41,400/- which has been received on that day; that consent is given for acquisition of the land in favour of the second defendant etc., All these documents will unhesitantly show that the first plaintiff was not only a signatory to the said documentation, but she was fully aware of the Agreement of sale executed by her father, Assignment Deed Ex-D1, receipt of all monies as a consequence to Ex-D5 etc. Not only is she consenting party, but she has also executed separate agreements, declarations, consent letters etc., To ratify such a position, she has reiterated that the property has been agreed to be sold by her father, monies have been received, due to difficulties in acquisition, she and her father have consented for the acquisition and matters of identical nature. Therefore, for the plaintiff No. 1 to state that she is not a signatory to any one of the documents therefore cannot be accepted. The documents, as shown by the defendants would clearly narrate not only the involvement, but even the consent of the first plaintiff for the alienation of the property in favour of the first defendant.
Further more is the very conduct of the plaintiff No. 1 that would disentitle her for any relief. Initially she was the only plaintiff who sought for a declaration and injunction. Subsequently on remand, when the matter was set down for framing of issues, she has chosen to sell the property in dispute to plaintiff Nos. 2 to 4. The suit was filed in the year 1992. Sale took place in the year 2006. There were no amendments to the plaint. Issues were not reframed. Trial proceeded based on the pleadings and issues prior to the sales being effected or the plaintiff Nos. 2 to 4 being impleaded in the suit. Under such circumstances, the pleading of the plaintiff No. 1 continued as it existed earlier. Therefore, the Appellate Court was fully justified in holding that the plaintiff has failed to establish her case with regard to her ownership as well as her possession of the suit schedule property. Consequently, the substantial question of law is answered by holding that the first plaintiff has failed to prove that she is the absolute owner in possession and enjoyment of the suit schedule property. On answering the substantial question of law, the appeal is dismissed.