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Judgment
N. Kumar, J.—This is a plaintiffs'' Regular First Appeal against the judgment and decree passed by the Trial Court dismissing the suit of the plaintiffs for declaration of title, for delivery of possession and for cancellation of several registered documents and for other consequential reliefs.
For the purpose of convenience, the parties are referred to as per their ranking before the Court below.
The first plaintiff is a Mutt based in Chitradurga owning properties in various places in the State of Karnataka. Their properties are vast, one amongst them is the schedule property. Since the administration of the plaintiff - Mutt changes from time to time, the previous management and administrators were not aware of the schedule properties belonging to the plaintiff. Plaintiff learnt through its then authorized disciple that plaintiff had executed a registered power of attorney dated 27.4.1890 registered as Document No. 567/1890 in the office of the Registrar, South Kanara in favour of one Sri Rudraya S/o. Guru Basayan authorizing him to do certain acts in relation to the management of property owned by the then Muruga mutt. The power of attorney did not authorize him to mortgage the properties. On the basis of power of attorney Sri Rudraya has brought about the document styled as a mortgage deed mortgaging 1.49 acres of land in favour Sri Chennabasappa disciple of Gurupura Jangam Mutt of South Kanara registered as document dated 20.1.1907 bearing document No. 116/1907 in the office of the Registrar of South Kanara. The said mortgage was a mortgage by conditional sale wherein the mortgage money was repayable within 62 years viz., between the 60th and 62nd year, that is between 1967 to 1969. Sri Rudraya was not authorized to mortgage the property. From the recitals of the mortgage deed it is clear the plaintiff had a full 62 years to repay the mortgage money and none had authority to transfer or alienate the said extent of land of 1.49 acres during the subsistence of mortgage deed. The sale of property under the mortgage deed became absolute only on default after 62 years. Until then the title to the property vested with the plaintiff. Sri Rudraya died prior to 1934. On his death, the power of attorney was automatically terminated by operation of law as per Section 201 of the Indian Contract Act. Smt. Puttamma the wife of deceased Rudraya brought about a document styled as a sale deed dated 30.11.1934 bearing No. 2934/1934 in the Office of the Registrar of South Kanara alleging that the properties in question belonged to Sri Rudraya and that she has inherited the properties under the mortgage deed by succession and has allegedly sold the schedule properties to Sri Chennabasappa Swami of Gurupura Mutt. In the first place the properties did not belong to Sri Rudraya nor he had the authority to mortgage the property. On his death, his wife did not have any right and could not inherit any of the schedule properties. Smt. Puttamma had no right to represent the plaintiff-Mutt or authorized to deal with the properties of the plaintiff - Mutt. In the sale deed of the year 1934 the schedule properties are shown as the personal properties of Rudraya which she has inherited. The sale deed of 1934 is manipulated and brought about with averments to suit the sale transaction. The sale deed refers to the alleged mortgage deed of 1907 executed by Rudraya. Without prejudice and without admitting the mortgage deed and that Puttamma had any right in the property, the period to redeem the mortgage had not lapsed and the mortgagee had not acquired title to the property. The title to the property mortgaged still remained with the plaintiff mortgagor. Sri Chennabasappa Swami had no right to claim title to the property prior to 20.1.1969. The mortgage deed of 1907 and the sale deed of 1934 are void documents and are non-est. Neither title nor possession is passed on to the transferee under the void documents. When Rudraya had no authority to mortgage and Puttama had no authority or title to the schedule property they could not convey a better title to the transferees. Under the sale deed an extent of 1.43 acres of land in Sy. No. 596 is alleged to have been transferred whereas what was sought to be mortgaged in 1907 was only 35 cents in Sy. No. 596. Sri Chennabasappa Swami by a document purporting to be a sale deed has sold the property to Sri Nagar Ramanath Shenoy as per deed No. 1038/1945 dated 29.4.1945 registered in the office of the Registrar of South Kanara. The said Chennabasappa Swami had no title to the property to convey the same and title vested with the plaintiff. He died on 24.8.1978. A Will of Sri Chennabasappa Swami is also brought about in respect of the schedule property, which is direct conflict with the documents stated above. The Will is a tampered document virtually brought about. Sri Nagar Ramanath Shenoy has executed a document purporting to be a Will bearing No. 51/1946 dated 13.7.1946 creating a life estate to his wife Nagar Seetha Bai. No Will could be executed in respect of the schedule properties as the same did not belong to him but belonged to the plaintiff which was mortgaged to be redeemed in 1969. A document styled as a Will was brought about which is dated 31.8.1979 subsequently depicted and copy in the books of the Registrar on 5.1.1982 after the death of Seetha Bai who died on 27.10.1981 and registered as document No. 54 of 1981-82. From the recitals of the document it is clear that Smt. Seetha Bai has created a trust in the name of Nagar Ramanath Shenoy and Nagar Seetha Bai Memorial Trust. The schedule property did not belong either to Sri Ramanath Nagar Shenory or Nagar Seetha Bai and they had no power to bequeath or create a trust. As per the document styled as a Will Sri Nagar Ramachandra Rao and Sri Nagar Narayana Shenoy were two of the trustees. Under the alleged Will Sri Nagar Ramchandra Rao, Sri M.V. Bhandarkar and Sri Sundar Kini as Executors with any two to act jointly. By a document dated 20.8.2002 bearing document No. 1988/2001-02 Sri Nagar Ramachandra Rao and Sri Nagar Narayan Shenoy in their personal capacity as shown in the document have transferred an undivided interest of 5% in the property to the defendant for pittance consideration of Rs. 25,000/- on the basis that the property was acquired as per the Will of Nagar Seetha Shenoy. Since the persons claiming to be the predecessor in title to the schedule property had no right, title or interest in the schedule property, no transfer could have been executed by Sri N.R. Shenoy and Sri N.N. Shenoy. The schedule property is situated in a prime locality. In order to evade stamp duty the mortgage value of the property is shown as Rs. 25,000/- which was deliberately under valued. In the said sale deed it is also deliberately shown that item No. 2 property is tenanted. In reality item No. 1 property is tenanted and item No. 2 property is vacant. The deed further alleges that as per the Will of Nagar Seetha Bai a direction was given to sell the property. Whereas the alleged Will does not give any direction to sell the property but only stated to create a trust.
Without prejudice and admitting any of the documents in the alleged Will, it is submitted that Trust Property cannot be transferred or alienated. The document is not executed by the alleged Trust but is executed in its personal capacity. The Shenoy family had no individual right in the property. The alleged Will does not confer any right to alienate the property and the Shenoy Family had no title to the property and could not have executed any documents by way of sale or otherwise. In order to avoid stamp duty a document purporting to be a release deed dated 25.9.2001 is brought about in favour of defendant allegedly releasing the remaining undivided right, thereby the actual consideration that has transpired between the defendant is kept a secret, the value of the property which is shown in schedule ''B'' is suppressed and stamp duty is avoided. The document was brought within a month from the alleged sale deed in favour of defendant. All the documents referred above are void, non-est factum and are unenforceable in law and do not bind the plaintiff or create title to the transferees. Though the plaintiff could ignore the documents, they are still seeking appropriate relief.
It is specifically contended that plaintiff is the absolute owner of the schedule property. The building in Item No. 1 property is in the hands of tenants and separate proceedings for eviction will be filed. It is further averred that the Deputy Commissioner passed order in LAWCR 10/2004-05 on the application filed by one Vinod Gavasakar and Bhaskar and the plaintiff came to know the status of the plaintiffs properties at Mangalore and thereafter obtained copies of documents after securing the various numbers of the documents and tracking down the documents and applying for the same. The plaintiff obtained certified copies of the documents in June 2005 and unearthed the sole ploy entitling the plaintiff to file the suit.
Subsequently LA. 14 was filed on 5.2.2010 to implead plaintiff No. 2, which was allowed, consequently plaint was also amended. In paragraph 2A it is stated plaintiff No. 2 is the branch of plaintiff No. 1 and it is under its control and administration. Plaintiff No. 4 goes under different names such as Murugha Rajendra Mutt, Murugha Swami Mutt, Murgi Mutt, Chennamaleshwara Virakta Mutt, Ramagiri Viraktha Mutt of Holalkere Taluq and owns Mutts and properties in Karnataka and Maharashtra. Viraktha Mutt is part and parcel of Murugha Mutt. The Addl. Sessions Judge Fast Track Court-II, Davanagere, in its judgment and decree in R.A. 20/2006 and 21/2006 has held that Virakta Mutt is directly subjected to Murugha Mutt at Chitradurga. Appellant/Plaintiff No. 2 Ramagiri Viraktha Mutt of Holalkere is a branch of Shakha Mutt of plaintiff No. 1 and is under the control and administration and subjected to the jurisdiction of plaintiff No. 1 - Murugha Mutt, Chitradurga. All the aforesaid Mutts are part and parcel of plaintiff No. 1 - Mutt and have merged and are part and parcel of plaintiff No. 1 - Mutt. The pontiff and Matadhipathi - Sri Shivamurthy Murugha Sharanaru (Swami) has the overall control and is the head of all Shaka Mutts and the Mutts that have merged with plaintiff No. 1. As per the Government Order No. RD 192 MET 91 dated 22.8.1991 issued from the Governors Office Sri Shivamurthy Murugha Sharanaru (Swami) was appointed as the successor of plaintiff No. 1 - Mutt after the previous Pontiff - Sri Mallikarjuna Murugha Rajendra Swamy demitted office due to old age.
At paragraph ''18A'' they have admitted to the effect that after the filing of the suit and immediately after the order of injunction was vacated by the High Court on 24.10.2008 the defendant has brought about a sale deed dated 31.10.2008 in favour of Laxmi Memorial Education Trust (R). The defendant had no title to the schedule property nor it could have conveyed any better title to the purchaser. The sale deed in favour of the present purchaser shows that the payments are made prior to the suit. The sale deed is void ab initio and it does not convey any title to the purchaser nor did the defendant have any right to alienate the schedule property. Therefore, the plaintiff sought for the relief of declaration that the plaintiff is the owner of the schedule ''A'' property and for a direction to the defendants to hand over possession of the plaint schedule property and for a declaration that the documents referred to supra are null and void, not enforceable in law, ultra virus, executed without authority, and do not bind the plaintiff and for a declaration that the Wills are also null and void, unenforceable in law. They do not convey any title. The other documents i.e., document dated 20.1.1907, sale deed dated 30.11.1934 and yet another sale deed dated 29.4.1945 were to be cancelled and documents which have come into existence are all void ab initio.
After service of notice, the defendants entered appearance and filed their written statement. The first defendant contends that, the plaintiff institution is based in Chitradurga District and one Sri Shivamurthi Murgha Sharanaru is claiming to be the Matadhipathi and Pontiff of the said Mutt. The said Mutt claims title to the ''A'' schedule property, without producing any documentary proof. The document produced as Annexure ''A'' along with the plaint appears to be the basis for the plaintiff to claim title to the ''A'' schedule property. Annexure ''A'' if read correctly and in its proper perspective the same will reveal that the plaintiff Mutt was never the owner of the plaint schedule property and the belated claim sought to be made out in the plaint is a total falsehood put forward by the plaintiff just to make unlawful gain for plaintiff at the cost of this defendant if possible.
The first defendant denied that schedule ''A'' of the plaint belongs to the plaintiff. The first defendant acquired the ''A'' schedule property as per the terms of the registered sale deed dated 20-08-2001. From the date of the sale deed, he has been enjoying the same absolutely by getting the mutation entries relating to the said property changed in his name. The tax demand register pertaining to several tenements situated in the ''A'' schedule property also were got changed to the name of this defendant by making necessary application in that regard. The first defendant is paying the corporation tax in respect of the several tenements situated in the schedule property. Some of the tenements which have become old and dilapidated are duly demolished after getting the vacant possession, all round developmental activities are undertaken by the defendant as this defendant is contemplating to renovate the ancient Mutt that existed in the ''A'' schedule property which is popularly called as Murgi Mutt. The construction work of the said Mutt, Temple, Theertabhavi, Nagasanidhya and Daivastana is already undertaken by the defendant at an estimated cost of Rs. 25,00,000/-. The defendant after making due provision for rehabilitating some of the occupants of the ''A'' schedule property had to undertake the aforementioned construction activities for which purpose also, this defendant had to spend considerable money. When negotiation for taking possession of the remaining tenements from some of the illegal occupants was going on, few of the illegal occupants have resorted to initiate litigation to prolong the negotiation by setting up title to the schedule property with third parties. The present suit is instigated by such persons. The very fact that the plaintiffs have averred that all these years they were not aware that the suit schedule property belongs to them indicates that the ''A'' schedule property never belonged to them at any time.
Annexure ''A'' is styled as "Sarva Swatantra Mokthariname" thereby indicating that the registered document is an irrevocable Power of Attorney. The executant of the document is stated to be Guru Shantha Sanyasi of Rama Giri Virakta Mutt of Holalkere Taluk of Chitradurga District of then Mysore State. The executant is shown as "Syshya" of Rajyoti Sanyasi and he was shown to be the resident of Virakta Mutt of Rama Giri Village of Holalkere Taluk. The plaintiff Mutt is admittedly styled as Shree Murugha Mutt of Chitradurga District. Sri Shivamurthi Murgha Sharanaru is claiming to be the present Matadhipathi of said Sri Murgha Mutt. Sri Shivamurthi Murgha Sharanaru appears to be 20th Peetadhipathi of Sri Murgha Mutt situated at Chitradurga City. There was no Sanyasi or Peetadhipathi by name Rajyoti Sanyasi or Guru Shantha Sanyasi who held the office of Matadhipathi of plaintiff Mutt through whom the present Matadhipathi of plaintiff could claim as successor so as to trace title to the plaint schedule property. Sri Murgha Mutt is a distinct and separate entity from Rama Giri Virakta Mutt situated at a separate and distinct place in Chitradurga District. To the best of knowledge of this defendant even today there exists Rama Giri Virakta Mutt in Chitradurga District and managed by a committee of Devotees of the said Mutt. Annexure ''A'' further reveals that Guru Shantha Sanyasi of Rama Giri Virakta Mutt had given the irrevocable General Power of Attorney during the year 1890 in favour of one Sri Rudrayya, who was a resident of Bappanadu Maaganne of Mangalore Taluk for his management after receiving a consideration of Rs. 1,600/- though by styling the same as donation. Annexure ''A'' further directed Sri Rudrayya to pay yearly donation of Rs. 5/- to Rama Giri Virakta Mutt. Sri Rudrayya was fully authorized to have the Khata of the ''A'' schedule property transferred to his name. He was even enabled to sell, transfer or to hold the said properties "Santhana Paramparya Icchanusara". The said document also directed Mr. Rudrayya to manage the Murgi Mutt situated in the ''A'' schedule property by getting the various Poojas and performances conducted therein. The document recites that the executant had divested all its right, file and interest over the ''A'' schedule property and or the income that might be derived there from. The present Matadhipathi of plaintiff Mutt is the follower of "Basava Dharma", which is quite distinct and separate from "Virakta Sampradaya" followed by Veerashaivaits. Sri Ramagiri Virakta Mutt and Sri Jangam Mutt, Gurupura are followers of "Virakta Sampradaya" followed by Veerashaivaits. The Murgi Mutt that existed in the plaint schedule property was also a "Virakta Mutt". Hence, the claim now pressed into service by the plaintiffs to establish title to plaint ''A'' schedule property by placing reliance on the document marked as Annexure A'' is totally misconceived.
Sri Rudrayya, who executed the mortgage deed of the year 1907 did not execute the same in his capacity as Power of Attorney holder of plaintiff Mutt at all. He executed the mortgage deed in his individual capacity as he secured absolute right over the suit schedule property. Sri Rudrayya received consideration from Sri Chennabasappa Sanyasi who was the then Peetadhipathi of Gurupura Jangam Mutt. The said mortgage deed enabled the mortgagor to redeem the mortgage within a period of 62 years namely ending with 1967 to 1969. The authority conferred on Sri Rudrayya under the registered document styled as irrevocable Power of Attorney, being absolute and irrevocable one, he had the right to enjoy the properties covered by the said deed absolutely. Right to mortgage and or sale, being incidental to the right of absolute enjoyment of the suit schedule property. Mr. Rudrayya had full right to mortgage the same in favour of Chennabasappa Sanyasi. Even if the document is to be construed as Power of Attorney, it was given to him for consideration, as such interest was created in the subject matter of the said deed.
The agency created is irrevocable as the agency is coupled with interest. Therefore, the said Power of Attorney do not come to an end with the death of Rudrayya.
They admit that Smt. Putamma executed a sale deed dated 30-11-1934 in favour of Sri Chennabasappa Sanyasi of Gurupura Jagam Mutt. When Smt. Puttamma conveyed the property, she was the sole successor to the interest of Rudrayya which he got over the suit schedule property by virtue of the aforementioned registered deed. She was fully competent to transfer the right of redemption which she got by succession. The document dated 13-11-1934 is valid document and is for consideration.
Soon after the acquisition of the suit schedule property by Nagar Ramanath Shenoy, he had to file a Suit for declaration as certain clouds were cast to his title by instituting OS No. 275/1951 on the file of subordinate Judge of South Canara against Sri Channabasappa Swamiyar and one Veerayya Shetty who claimed to be the Manager of Gurupura Jangam Virakta Mutt appointed by Hindu Religious Endowments Board at Madras. The said suit ultimately ended in a decree as per the Judgment and decree dated 31-03-1952 wherein the right, title and interest of Nagar Ramanath Shenoy over the suit schedule property came to be declared by the competent Court and it has become final. Mr. Nagar Ramanth Shenoy enjoyed the plaint ''A'' schedule property as his absolute property during his life time. He in turn had executed a registered Will dated 13-07-1946 in favour of his wife Smt. Nagar Seetha Bai alias Shenoy, where under he had bequeathed amongst others, the suit ''A'' schedule property to her. Mr. Nagar Ramanath Shenoy died on 20-07-1969 and on his death the Will dated 13-07-1946 came into effect and as such Smt. Nagar Seetha Bai became the absolute owner of the suit ''A'' schedule property. She also executed a Will dated 31-08-1979, where under she appointed Nagar Ramachandra Rao, and 2 others as executors of her Will and directed to liquidate the suit schedule property (Murgi Mutt property) and realize the cash value of the same and thereafter gave further direction to utilize the balance funds for charitable purposes by forming a Charitable Trust. Sri Nagar Ramanath Shenoy died on 20-07-1969 and Smt. Seetha Bai died on 27-10-1981. Mr. M.V. Bhandarkar died on 26-11-1989, U. Sundar Kini died on 15-05-1982. The other named trustee namely Dr. Radha also died. Nagar Seetha Bai alias Shenoy, Nagar Ramachandra Rao and Nagar Narayan Shenoy alone survived to give effect to the Will of late Nagar Seetha Bai alias Shenoy. The remaining trustees conveyed the suit schedule property in favour of the first defendant. The sale deed is dated 28-12-1950. The executant of the said sale deed is shown to be the reversionary right holder of suit schedule property. He conveyed his reversionary right in favour of Sawkar Bantwal Narasimha Bhandary. Whatever right Mr. Sawkar Bantwal Narasimha Bhandary had over the suit ''A'' schedule property also became extinct by virtue of limitation on the expiry of the above stated period. Thus when the suit ''A'' schedule property came to be acquired by this defendant, it was the absolute property of Smt. Nagar Seetha Bai alias Shenoy and none else had any right, title and interest over the same.
They have denied all the allegations made in paras 10 to 19 of the plaint. The defendant submitted that the suit schedule property acquired by him is his private property. It is not a trust property. The suit is not properly valued. Court fee paid is insufficient. The relief of declaration and cancellation of various documents are clearly barred by limitation. Plaintiff is not in possession of the property and possession of the property is lost by the plaintiffs ever since the year 1907 as revealed in the plaint and, therefore, the plaintiffs are not entitled to the reliefs sought for.
After the impleadment of the second defendant, he has filed a separate written statement adopting the written statement filed by the first defendant and reiterating the same. It was contended that, defendant No. 2 is a bona fide purchaser of the suit schedule property for valuable consideration from defendant No. 1 who has got marketable title in respect of the suit schedule property and accordingly defendant No. 2 purchased from defendant No. 1 and by virtue of the registered sale deed dated 31.10.2008 defendant No. 2 has become the absolute owner of portion of the suit schedule property. The sale deeds are binding and the question of cancellation would not arise. He also filed an additional written statement reiterating the earlier stand.
The first defendant also filed an additional written statement contending that the second defendant is not a necessary party, the suit is bad for misjoinder of parties. One more additional written statement was filed on 16.10.2009 contending that the sale deed executed by them is valid and legal and not void as contended by them. Plaintiff also filed a rejoinder.
On the aforesaid pleadings, the trial Court has framed the following issues:-
(1) (i) Whether the defendants proves that Nagara Ramanath Shenoy has executed a Will dated 13-07-1946 and Seetha Bai has executed a Will dated 31-08-1978?
(ii) Whether the plaintiff proves that the Wills executed by Ramanath Shenoy and Seetha Bai do not convey right and the same are null and void, not enforceable and not binding on the plaintiff?
(Issue No. 1 Recasted)
(2) Whether the defendants proves that Shenoy family had title to the schedule property? (Recasted)
(3) Whether the plaintiff Mutt proves that it is the owner of the "A" schedule property?
(4) Whether the plaintiff further proves that the Power of Attorney dated 27-04-1890 executed in favour of Rudrayya, son of Gurubasavayya did not authorize him to mortgage the "A" schedule property as alleged?
(5) Whether the plaintiff proves that the title to the schedule property remained with the plaintiff in spite of the alleged mortgage deed as alleged in the plaint? (Recasted)
(6) Whether the plaintiff proves the sale deed, release deed, mortgage deed and all other subsequent documents are null and void and not binding on the plaintiff? (recasted)
(7) Whether the plaintiff proves that the sale deed dated 31-10-08 executed by 1st defendant in favour of defendant No. 2 does not convey any title to defendant No. 2 and as such the same is void as alleged in plaint para No. 8(a)?
(8) Whether the defendant No. 2 Trust proves that it is the bona fide purchaser of the suit schedule property for valuable consideration from the defendant No. 1 who has got a marketable title in respect of the suit schedule property and as such defendant No. 2 became the absolute owner of portion of the suit property as contended in para No. 13(a) of the written statement?
(9) Whether the defendant No. 1 proves that the authority conferred on Sri Rudrayya under Regd. Irrevocable Power of Attorney and he had the right to enjoy and right to mortgage or sale incidental to the right of absolute enjoyment of the suit schedule property as contended in para No. 7 of the written statement?
(10) Whether the suit of the plaintiff is barred by limitation?
(11) Whether the suit of the plaintiff is hit by the principles of res judicata in view of the judgment passed by this Court in OS No. 275/1951?
(12) Whether the suit of the plaintiff is valued properly and C.F. paid is sufficient?
(13) Whether there was no cause of action for the institution of this suit as pleaded?
(14) Whether the plaintiff is entitled to the relief of declaration that it is the owner of the suit schedule property and consequential relief of symbolic possession of the building in Item No. 1 of the property as sought for?
(15) Whether the plaintiff is entitled to the relief of declaration that the documents as averred in the plaint are null and void and not binding on the plaintiff Mutt and the same are liable to be cancelled as sought for?
(16) To what order or decree?
Additional Issues were framed subsequently which reads as under:-
(1) Whether the plaintiff proves that the mortgage deed, power of attorney and all other subsequent deeds are void and hit by Section 29 of the Hindu Religious and Charitable Endowment Act?
(2) Whether the suit of the plaintiff is bad for misjoinder of parties as contended in the Additional W.S. of D. 1?
On behalf of the plaintiffs one Ronald Gilbert was examined as PW. 1. They also produced 36 documents which are marked as Exs. P1 to P36. On behalf of the defendants one B. Manikyaraja was examined as DW. 1, K. Durgaprasad Shetty was examined as DW. 2 and Nagesh Nayak was examined as DW. 3 and they have produced in all 36 documents which are marked as Exs. D1 to D36.
The trial Court on appreciation of the evidence on record held that, the plaintiff has failed to prove that it is the owner of the ''A'' schedule property. The plaintiff has failed to prove that the Power of Attorney executed in favour of Rudrayya did not authorize him to mortgage the ''A'' schedule property. Plaintiff failed to prove that the sale deed, release deed and mortgage deeds and all other subsequent documents are null and void. The plaintiff failed to prove that the sale deed dated 31.10.2008 executed by the first defendant in favour of defendant No. 2 does not convey any title to defendant No. 2 and it is void. Defendant No. 2 also failed to prove that it is a bona fide purchaser for valuable consideration. The plaintiff has failed to prove that Rudrayya had no title to convey the property mortgaged to him. The suit of the plaintiff is barred by limitation. The suit is not hit by the principles of res judicata. The suit of the plaintiff is not valued properly. The plaintiff has no cause of action for institution of the suit. Plaintiff is not entitled to the relief of declaration that the documents referred to in the plaint are null and void. The plaintiff has failed to prove that the mortgage deed, Power of Attorney and subsequent deeds are void. The suit of the plaintiff is not bad for misjoinder of the parties as contended in the additional written statement of defendant No. 1. Defendants have proved that Nagara Ramanath Shenoy has executed a Will dated 13.7.1946 and Seetha Bai has executed a Will dated 31.8.1978. The plaintiff has failed to prove that the aforesaid two Wills do not convey right, title and the same are null and void, not enforceable and not binding on the plaintiff. Accordingly, the suit of the plaintiff came to be dismissed.
The learned counsel for the appellants assailing the impugned judgment and decree contended that, the plaintiffs'' file to the suit schedule property is not in dispute. It is admitted in various documents referred to in the plaint. The Power of Attorney executed is not an irrevocable one and it did not convey any interest in the Power of Attorney Holder, it did not authorize him to mortgage the property and, therefore, the mortgage deed created is void. Even otherwise, on his death, his wife who acquired no right either under the mortgage deed or in respect of the ''A'' schedule property could not have sold the property under a registered sale deed in favour of the first defendant. Similarly, all the registered documents, Wills, which have come into existence subsequently in respect of ''A'' schedule property are all void documents and, therefore, he submits the trial Court without properly appreciating the undisputed facts committed a serious error in dismissing the suit of the plaintiffs.
Per contra, the learned counsel for the defendants supported the impugned judgment and decree.
In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are as under: -
Whether plaintiffs have established their title to the ''A'' schedule property?
Whether the documents which have come into existence in respect of ''A'' schedule property are null and void as contended by the plaintiffs?
Whether the suit of the plaintiffs is barred by the law of limitation?
POINT No. 1
Plaintiffs have preferred this suit for a declaration that they are the absolute owners of ''A'' schedule property and for a decree of possession against the defendants who are admittedly in possession of the ''A'' schedule property. The defendants in the written statement have specifically denied the plaintiffs title to the ''A'' schedule property. Therefore, the trial Court properly framed issues regarding title. In the evidence of PW. 1, Power of Attorney Holder who has no knowledge about the ''A'' schedule property he has categorically admitted that the plaintiff was not aware of the existence of the ''A'' schedule property from 1890 till 2006 till the Deputy Commissioner passed an order in respect of the said property. Therefore, all the transactions referred to in the plaint in respect of ''A'' schedule property which has commenced from 27.4.1890 till 2006 is not within his knowledge. He is a total stranger to the Mutt as well as to the property. The evidence on record shows he was working as a driver for nearly two years, thereafter he was working as a driver in the Middle East. In the Courts at Mangalore, several criminal cases have been filed against him for dishonour of cheques, in one case he has been convicted, in one other case he has obtained an order of stay. He is in the business of real estate, he is a partner in a partnership firm, that shows his interest in the ''A'' schedule property and in the suit. When the plaintiff asserted title to the schedule property and the defendants denied their title, the burden of proving title to the ''A'' schedule property squarely lies on the plaintiffs. To succeed they should have led evidence to show how the plaintiffs'' acquired title to the property by producing documents of title. No attempt is made either to trace the title or to produce any documents of title showing the plaintiffs'' title to the ''A'' schedule property. Though 36 documents have been produced in support of their case, they are in the nature of Power of Attorneys, mortgage deeds, Wills, release deed, copy of the order by the Deputy Commissioner, katha registers, photos, negative photos, certified copy of the judgments, RTC, copy of the sale deed, Advocate''s Notice, postal acknowledgment, paper publication, plaintiffs'' house list issued by Ramanagar Village, trade licence, receipt of payment, certificate issued by Labour Inspector, Form No. 19 issued by the Corporation. None of them pertain to the schedule property much less they are documents of title showing title of the plaintiffs to the ''A'' schedule property. On the contrary, the evidence on record discloses that defendants have improved the property by spending about Rs. 25 Lakhs, they got the tenants vacated, building was in a dilapidated condition, demolished, it was constructed. Katha was made out in their names, they are paying taxes and they are exercising their absolute ownership rights over the plaint schedule property. On taking into consideration this oral and documentary evidence on record, rightly the trial Court held that the plaintiff has not established his title over the suit property. We do not see any error committed by the trial Court in recording such finding. Therefore, we affirm the said finding.
POINT No. 2:-
In so far as declaration that the documents which have come into existence as referred to in the plaint are void ab initio is concerned, in the first place the plaintiffs are not a party to any of such documents. Plaintiffs'' title to the property which is the subject matter of those documents is not established. They are all registered documents which have come into existence at an undisputed point of time. All those documents have been acted upon. On the basis of the documents, a suit came to be filed and after contest a judgment and decree was passed declaring that the second defendant is the absolute owner in possession of the property. The said judgment has attained finality. The trial Court on a careful examination of each and every document and also the oral evidence adduced in respect of the said document has categorically held that the plaintiffs have failed to prove that those documents are null and void. We do not see any grounds to interfere with the well considered order passed by the trial Court in this regard.
POINT No. 3:-
The suit is filed in the year 2006. The Power of Attorney was executed on 27.4.1890. The mortgage deed was executed on 20.1.1907. The executant of the document died in the year 1934. Sale deed was executed by Rudrayya''s wife in 1934. The purchaser executed a sale deed on 29.4.1945. The Will was executed on 13.7.1946. His wife executed a Will on 31.8.1979. After their death the Trust came into existence in terms of the Will. A release deed came to be executed on 25.9.2001. The evidence of PW. 1 shows that the plaintiff was not aware of this property at all till 2006. Therefore, when the property was in the hands of the defendants or the predecessor-in-title and they have been enjoying the property as absolute owners thereof initially by cultivating the land, paying taxes to the Government, thereafter improving the property, put up constructions, removing old construction and putting up new construction and improving the property the plaintiffs did not move their little finger to claim the property or prevent them from exercising the right of ownership. The defendants openly asserted their title adverse to the interest of the plaintiff. They have done it more than 100 years. A suit for declaration of title has to be filed within three years when the right to sue first accrues. Therefore, the Court below rightly held that the suit of the plaintiff is hopelessly barred by the law of limitation. The said finding is based on legal evidence and strictly in accordance with law. Therefore, no case for interference with the said finding is made out.
Learned counsel for the appellant relied on the judgment of this Court in the case of Kenchawwa Vs. Amagonda, where it has been held as under:-
"12. When the plaintiff makes out a case of fraud and misrepresentation then the document in question itself is void and assuming that defendant-1 was put in possession pursuant to that document, such possession does not confer on him any rights unless his possession is protected by any other law in force...."
This is not a case of fraud or misrepresentation and, therefore, the said judgment has no application.
He also relied on a judgment of the Apex Court in the case of Rameshwer Dubey and Others Vs. Masomat Asha Kaur and Others, to contend that Article 59 of the Limitation Act is attracted and not Article 58.
That was also a case where the executant of the sale deed challenged the execution on the ground of fraud. In the instant case we have already set out that the plaintiff is not a party to any of the documents. Plaintiff has not proved his title to the property which is the subject matter of these documents nor the plaintiff has proved title to the ''A'' schedule property and, therefore, the said judgment has no application. In that view of the matter, we pass the following order:-
Appeal is dismissed.
Parties to bear their own costs.