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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 20TH DAY OF NOVEMBER, 2014

BEFORE

THE HON'BLE MR. JUSTICE C.R. KUMARASWAMY

REGULAR FIRST APPEAL No.413 OF 2011

BETWEEN:

SRI.H.K.NANJAPPA SINCE DECEASED BY HIS LRs

1(a) SMT.PRAMILA @ PRAMILAMMA W/O LATE H.K.NANJAPPA

AGED ABOUT 55 YEARS,

1(b) SRI.N.NAVEEN KUMAR LATE H.K.NANJAPPA AGED ABOUT 30 YEARS,

APPELLANTS 1 AND 2 ARE

RESIDING AT NO.92 5TH MAIN, BHUVANESHWARI NAGAR HESSARAGHATTA MAIN ROAD

T.DASARAHALLI BANGALORE-560 057. …APPELLANTS

(BY SRI: PADMANABHA V. MAHALE, SENIOR COUNSEL FOR SRI H.H.KALADAGI, ADVOCATE)

AND:

1. SMT.RAMAMMA W/O M.BASAVARAJU

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AGED ABOUT 63 YEARS RESIDING AT NO.80/139

1ST MAIN, 8TH CROSS ROAD MYSORE ROAD

CHAMARAJPET BANGALORE-560 018.

2. SMT.MARIYAMMA W/O LATE THIMMAIAH

AGED ABOUT 71 YEARS RESIDING AT NO.64/1 PIPELINE WEST

MYSORE ROAD, KASTURBA ROAD BANGALORE-560 026.

3. BANGALORE CITY CORPORATION REPRESENTED BY ITS COMMISSIONER

BANGALORE.

4. SUB-REGISTRAR (SENIOR) BANGALORE NORTH TALUK

BANGALORE. 5. STATE OF KARNATAKA

REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE

M.S.BUILDING BANGALORE-560 001. …RESPONDENTS

(BY SRI N.J.RAMESH, ADVOCATE FOR RESPONDENT NO.1, RESPONDENT NO.2 SERVED,

SRI N.R.JAGADEESHWARA, ADVOCATE FOR RESPONDENT NO.3, SRI.E.S.INDIRESH, HCGP FOR RESPONDENT

NOS.4 AND 5)

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 20.01.2011 PASSED IN

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O.S.NO.1655/2005 ON THE FILE OF THE XL ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR

DECLARATION AND INJUNCTION.

THIS REGULAR FIRST APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

This Regular First Appeal is filed under section 96 of

Code of Civil Procedure against the judgment and decree

dated 20.01.2011 passed in O.S.No.1655/2005 on the file

of the XL Additional City Civil Judge, Bangalore, dismissing

the suit for declaration and injunction.

2. The Parties will be referred with reference to

the status in the Trial Court.

3. The case of the plaintiffs in the Trial Court is as

under:

The plaintiffs are the owners in possession and

enjoyment of property bearing Site No.29, Assessment

No.50 and khatha No.107/50 measuring East to West: 60

feet, North to South: 40 feet having a square house

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situated at Malagalu village, Yeshwanthpur Hobli,

Bangalore North Taluk described as suit schedule property.

The original plaintiff had purchased the schedule

property through sale deed dated 27.12.2002 registered in

the office of the fourth defendant. Vendor of the plaintiff –

Smt.Pramilamma had entered into an agreement with

second defendant – Mariyamma on 11.12.1989. The

second defendant has received the entire consideration

amount and executed General Power of Attorney in

addition to the sale agreement and put Pramilamma in

possession of the schedule property. She authorised her

to deal with the schedule property according to her desire.

The second defendant has sworn to an affidavit confirming

handing over of possession of the schedule property on

11.12.1989. As per the General Power of Attorney

executed by the second defendant, Pramilamma, who is

the wife of the plaintiff, executed a sale deed in favour of

the plaintiff. The second defendant has handed over all

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original documents of the schedule property in favour of

the plaintiff.

The second defendant is the owner of the schedule

property having purchased the same through registered

sale deed dated 21.05.1980 from her Vendor –

Muddalingappa. The second defendant being the owner of

the schedule property, has executed General Power of

Attorney and agreement in favour of Pramilamma, who in

turn executed the sale deed in favour of the plaintiff. The

suit schedule property all along is in possession of the

plaintiff and his family since 1.12.1989 till today.

Plaintiff and his family members are the absolute

owners in possession of the schedule property. Whereas

the second defendant Mariyamma is trying to extract

money from the plaintiff and his family members. She

started disturbing the possession of the plaintiff and with

that intention, the second defendant has executed a

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registered sale deed dated 13.08.2003 in favour of the first

defendant in respect of schedule property which is already

given to the plaintiff and his family and put them in

possession of the schedule property.

The first defendant in view of the concocted sale

deed executed by the second defendant dated 13.08.2003,

managed to get khatha in her name from the Office of

third defendant and thereafter, first and the second

defendants started to interfere with the possession and

enjoyment of plaintiff’s possession over the schedule

property on 11.02.2005. The first defendant further tried

to dispossess the plaintiffs from the schedule property.

Defendant Nos.1 and 2 colluded with each other and

created sale deed dated 13.08.2003 and claiming

ownership over the suit schedule property, tried to

dispossess the plaintiffs with the help of henchmen.

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Defendant Nos.1 and 2 have created bogus sale deeds just

to knock off the valuable schedule property.

The original plaintiff has filed suit for the relief of

permanent injunction against defendant No.1 in

O.S.No.1274/2005 wherein the first defendant has refused

to receive the suit summons. Further, the third

defendant-Corporation effected khatha of the schedule

property in favour of the first defendant.

The sale deed dated 13.08.2003 executed by

defendant No.2 in favour of defendant No.1 in the Office of

the Sub-Registrar, Bangalore North Taluk, is illegal and

void. It is not binding on the plaintiffs in view of the sale

deed dated 27.12.2002 as the plaintiff and his family

members are in possession and enjoyment of the suit

schedule property. Therefore, the plaintiffs are seeking for

cancellation of sale deed dated 13.08.2003 executed in

favour of the first defendant.

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The cause of action arose on 11.02.2005 and

subsequent dates within the jurisdiction of this Court as

the first defendant is trying to interfere with the peaceful

possession of the plaintiffs on the concocted sale deed

dated 13.08.2003. Therefore, the plaintiff prays to pass a

judgment and decree for cancellation of the sale deed

dated 13.08.2003 executed by the second defendant in

favour of the first defendant in respect of suit schedule

property and to declare that the plaintiff is the owner of

the schedule property based on the sale deed dated

27.12.2002 and to direct the Bangalore City Corporation to

effect khatha of the schedule property in favour of the

plaintiffs.

4. The case of defendant No.1 in the Trial Court is

as under:

The plaintiff already filed a suit for permanent

injunction and the present suit is hit by res judicata.

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The case of the first defendant is that she is the

absolute owner of suit schedule property measuring 60 x

40 feet purchased under registered sale deed dated

13.08.2003 from Smt.Mariyamma. The property situated

in Gramatana Kaneshumari No.107/50/29 of Malagalu

village, Yeshwanthapura Hobli, Bangalore North Taluk.

After purchase of the said property she has put-up

construction. The first defendant also paid a sum of

Rs.20,803/- towards betterment charges. At the time of

purchase of the property, she has secured encumbrance

certificate from 1982 to till date of purchase of the

property i.e. 25.08.2003. The property stands in the name

of Smt.Mariyamma. After registration, she has placed

documents for change of khatha before Bangalore

Mahanagara Palike. Accordingly, property has been

assessed, tax has been paid and khatha has been effected

on 08.10.2003. While assessing, the Assistant Revenue

Officer measured the property and identified about

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physical possession of 55 + 55/2 x 30. The remaining

portion is taken for formation of road. Accordingly, the tax

has been assessed from 1996 to 2004 and a sum of

Rs.4,868/- remitted to the Corporation Authorities.

The plaintiff died during pendency of the suit and his

wife, Smt.Pramilamma and her son by name N. Naveen

Kumar filed revision petition before Deputy Commissioner,

South, Bangalore Mahanagara Palike, to cancel the khatha.

The said revision petition was allowed on 08.07.2005 and

the khatha standing in the name of defendant No.1 was

cancelled. The said order has been questioned before this

Court in W.P.No.20949/2005 and got interim order of stay.

The matter is still pending before this Court.

The vendor of the first defendant is the absolute

owner by virtue of registered sale deed dated 21.02.1980

but it is false that she was unable to look after the

property and she has executed a power of attorney in

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favour of Pramilamma. It is also false that she has

received consideration amount of Rs.70,000/- and

delivered possession of schedule property to Pramilamma.

The original plaintiff and Pramilamma created document

among themselves in respect of suit schedule property.

Both the plaintiff and Pramilamma are husband and wife

and this fact is not mentioned in the plaint. Hence,

plaintiff has not approached the Court with clean hands.

The defendant -Smt.Mariyamma was not aware about the

registered deed executed between the plaintiff and his

wife, which is a created document only with an intention to

deprive the rightful claim of this defendant. At no point of

time, the plaintiff or his legal heirs were in possession of

the schedule property.

It is denied that the original plaintiff purchased the

schedule property through registered sale deed dated

27.12.2002 and original registered sale deed is not placed

before the Court because the vendor of the plaintiff is none

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other than his wife, who executed the sale deed through

frivolous and false document. The relationship is not

explained while executing the document.

The vendor of the plaintiff, Smt.Pramilamma,

claimed that the second defendant executed an agreement

on 11.12.1989 in her favour and she was not conferred

with any right through the said agreement and the alleged

agreement is a created document. No General Power of

Attorney has been executed in favour of Pramilamma. It is

also false that she has sworn to an affidavit on

11.12.1989. The contention of the plaintiff is that since

there was a bar for registration of revenue sites, she could

not get the property transferred in her name through

registered sale deed.

The vendor of the plaintiff, Smt. Pramilamma has not

made any application before the Corporation authorities for

assessment of tax from 1992 to 2002 relying on the

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alleged sale deed i.e. the agreement of sale. The second

defendant lost the original documents in respect of

schedule property and she has lodged a complaint.

Defendant No.1 has purchased the property after verifying

the encumbrance certificate in respect of schedule

property and on payment of consideration amount, she has

purchased the property and she is in possession.

It is denied that the second defendant executed a

document in favour of Smt.Pramilamma and in pursuance

of the same, execution has been made without knowledge

of second defendant. There is no correspondence between

Pramilamma and the second defendant during that period.

It is false to state that sale deed dated 13.08.2003 is

a created document. Based on the sale deed, she got the

khatha changed from the Corporation Authorities. This

defendant interfering with the possession of the plaintiff

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does not arise. The first defendant is in possession and

enjoyment of the schedule property.

Suit in O.S.No.2388/2004 against one Subbamma

and temporary injunction is obtained is not within the

knowledge of the first defendant. The khatha has been

already effected in respect of schedule property. When the

plaintiff was unable to establish the ownership of the

schedule property, an endorsement was issued to that

effect. It shows that the plaintiff is not in possession of

the suit schedule property. When the second defendant

has not executed sale deed on 27.12.2002 in favour of

plaintiff, the question of plaintiff being in possession of the

suit schedule property does not arise. The cancellation of

sale deed does not arise at all.

When fourth and fifth defendants were made as

parties to the proceeding, no statutory notice is issued to

them before filing the suit. For both suits, there is no

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cause of action. The plaintiff has also not issued any

statutory notice to the third defendant – Corporation.

The valuation made by the plaintiff is not in

accordance with market value of the property as on the

date of filing of the suit. The sale deed dated 27.12.2002

is void.

The first prayer for cancellation of sale deed sought

by the plaintiff cannot be granted because it is a registered

document executed by the true owner in favour of the first

defendant. The second prayer for relief of declaration in

favour of the plaintiff cannot be granted. The relief relating

to permanent injunction and issuance of a direction to the

Corporation Authorities to change the khatha cannot be

granted.

The schedule property is situated at Malagala village

as claimed by the plaintiff. The property presently

measures 55 + 20/2 x 30 and new Municipal number 22/1

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has been allotted and the property situated at Ward No.37,

1st main road, Huchappa Extension, Govindarajnagar

Range, Bangalore Mahanagara Palike. The measurement

shown East to West 60 feet and North to South 40 feet is

not at all available. The schedule mentioned in the present

suit and in O.S.No.1274/2005 differ from each other. On

this ground also, the suit is liable to be dismissed.

The case of the second defendant is that the

defendant was the absolute owner of the property. There

is a monetary transaction between the plaintiff and this

defendant. For the purpose of security, some documents

were deposited with him. At that time, blank signatures

were obtained on blank papers. General Power of Attorney

was created in favour of wife of the plaintiff and

subsequently, it was cancelled. At no point of time, the

plaintiff was put in possession of the suit schedule property

by this defendant. It is false to state that no registration

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could be made in the year 1989. In her absence, all the

documents were created by the plaintiff.

The documents are created between the husband

and wife. Since she has not executed any document in

favour of plaintiff or his wife, she has sold the property in

favour of first defendant and put her in possession. There

is a dispute between the plaintiff and defendant No.1

relating to transfer of khatha, for which several

proceedings took place and this fact came to his

knowledge through the first defendant.

No direction is given to Pramilamma by her to

execute sale deed in favour of her husband - plaintiff.

The schedule shown in the sale deed dated

13.08.2003 executed in favour of first defendant is correct.

If the agreement was executed on receipt of entire

consideration amount, the plaintiff would have brought a

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suit for specific performance for execution of the sale

deed. The suit is barred by limitation.

Once the sale deed was executed in respect of the

property, this defendant is not a necessary party to the

proceedings. On this ground also the suit is liable to be

dismissed. This defendant’s sale deed dated 21.05.1980

was lost by her, for which the complaint has been lodged.

For more than 10 years, Pramilamma has not made any

efforts to get khatha changed in her name from the name

of second defendant. But, the said document has been

used for the purpose of registration, which itself shows

that there is a dispute between this defendant and

Pramilamma. Immediately on purchase of the property,

the first defendant got the khatha effected by the first

defendant and she is in possession of the property.

The value of the property shown is lesser and no

cause of action arose against this defendant for the

plaintiff to file the suit.

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5. The Trial Court has framed the following

issues:

1. Whether the plaintiffs prove that they are the

absolute owners in possession of the suit

schedule property?

2. Whether the plaintiffs prove that Sale Deed dated

13.9.2003 executed by 2nd defendant in favour of

defendant No.1 is illegal and liable to be

cancelled?

3. Whether the plaintiffs prove the alleged

interference of defendants 1 and 2 in the suit

schedule property?

4. Whether the plaintiffs are entitled for relief of

permanent injunction against defendants 1 and

2?

5. Whether the plaintiffs are entitled to relief of

mandatory injunction against defendant No.3 as

prayed?

6. Whether defendant No.2 proves that she is not

necessary party to the suit?

7. What decree or order?

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6. The above issues were answered as under:

Issues 1 to 6 : In the negative,

Issue No.7 : In the affirmative,

Issue No.8 : As per final order.

7. The sum and substance of the finding of the

Trial Court is as under:

Mariyamma has entered into Ex.P2 - sale agreement

dated 11.12.1989 agreeing to sell the suit property in

favour of Pramilamma for a sum of Rs.70,000/-. Schedule

property was a revenue site. There was prohibition for

registration of sale deed. Therefore, the second defendant

Mariyamma executed Ex.P3 – General Power of Attorney

and Ex.P4 – Sworn statement on 09.03.1990. These two

documents are executed in favour of Pramilamma with an

intention to transfer the property in her favour.

Thereafter, on the basis of Ex.P3 – General Power of

Attorney and Ex.P4 – Affidavit, Pramilamma sold suit

schedule property in favour of her husband, H.K.Nanjappa

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– deceased plaintiff under Ex.P1 - registered sale deed

dated 27.12.2002 for valuable consideration. A rival claim

over the suit schedule property is set-up by the first

defendant – Ramamma, who is claiming her right, title or

interest and possession by virtue of Ex.D3 - registered sale

deed executed by the second defendant – Mariyamma on

13.08.2003 for a valuable consideration of Rs.2,40,000/-.

The plaintiff No.1(a) – Smt.Pramilamma as a

representative of the owner, Sri.Mariyamma – second

defendant herein filed O.S.3634/2000 against Subbamma

before the City Civil Court, Bangalore. Interim Order was

passed on I.A.1 and ultimately, the said suit came to be

dismissed. At that time, Subbamma has stopped illegal

attempt to encroach upon the suit schedule property.

Again when the said Subbamma started interfering, the

deceased plaintiff – H.K.Nanjappa filed a suit for bare

injunction against her before the City Civil Court in

O.S.2388/2004. During the pendency of the suit, the

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plaintiff has died. Pramilamma and her son, Naveen

Kumar were brought on record as legal representatives

and the said suit was decreed on 08.04.2009.

The Trial Court has observed in its judgment that in

the present suit, second defendant Mariyamma – the

previous owner of the schedule property has filed her

written statement independently. She never participated

in the proceedings. She has not lead any defence

evidence. The defence taken by the second defendant –

Mariyamma is that she never sold the schedule property

either in favour of Smt.Pramilamma, W/o.H.K.Nanjappa or

in favour of original plaintiff – H.K.Nanjappa by executing

any document. She had monetary transaction with the

plaintiff – H.K.Nanjappa and for the purpose of security,

she had given title deeds including original sale deed

executed by her vendor i.e. Ex.P.23 to H.K.Nanjappa.

Nanjappa has taken her signature on some papers and

thereafter, he has created General Power of Attorney and

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affidavit in the name of his wife – Pramilamma. Property in

question was illegally sold by Pramilamma in favour of her

husband, H.K.Nanjappa.

In support of the plaintiff’s case, Naveen Kumar, S/o

H.K.Nanjappa is examined as P.W.1. Gangadhar – son-in-

law of Late H.K.Nanjappa was examined as PW.2. The first

defendant – Ramamma lead her evidence as D.W.1. They

have examined a witness, Siddaiah, who speaks about

possession of the suit schedule property by the first

defendant – Ramamma. D.W.2 is none other than the

husband of Subbamma, against whom plaintiffs herein and

the original plaintiff Nanjappa had filed a suit for

permanent injunction. P.W.1 has admitted that the

plaintiff has not paid the consideration amount shown in

the sale deed – Ex.P30 to the second defendant –

Mariyamma, the owner of the property. Hence, it is very

clear that the consideration amount mentioned in the sale

deed – Ex.P30 is not paid to the owner of the property –

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Mariaymma, the second defendant. It is pertinent to note

that though after the death of original plaintiff,

H.K.Nanjappa, his wife Pramilamma was brought on record

as plaintiff No.1(a) and she has not stepped into the

witness box to speak about the transaction between

herself and the second defendant – Mariyamma, more

particularly about the Ex.P2-agreement of sale, General

Power of Attorney and affidavit. It is pertinent to note that

the first defendant Ramamma – D.W.1 has given her

evidence before the Court by producing documents i.e.

title deed executed by her vendor – Mariyamma. She has

also produced khatha certificate, receipt for having paid

betterment charges and tax paid receipts to the

Corporation authorities. It is pertinent to note that as

admitted by P.W.1 – Naveen Kumar, the possession of the

suit schedule property was not given to his mother –

Pramilamma by the second defendant – Mariyamma under

Ex.P2 – agreement. It is interesting to note that by virtue

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of General Power of Attorney and affidavit, Exs.P28 and

P29, plaintiffs are claiming possession over the suit

property. The first defendant – Ramamma has given

specific evidence before the Court that she purchased the

suit schedule property for valuable consideration from her

vendor – Mariyamma, second defendant under registered

sale deed i.e. Ex.D3. Earlier to that, there was an

agreement of sale i.e. Ex.D2 between them.

The Trial Court has also mentioned that plaintiff –

H.K.Nanjappa has filed a suit for permanent injunction

against the first defendant – Ramamma in O.S.1274/2005

before the City Civil Court, Bangalore. Thereafter, the

plaintiff has withdrawn the said suit by filing a memo on

20.06.2006.

The Trial Court has observed that plaintiffs herein

have utterly failed to prove their case in all aspects, more

particularly, the transaction pertaining to the suit schedule

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property between Pramilamma and Mariyamma and

thereafter between Pramilamma and Late.H.K.Nanjappa.

The Trial Court has observed that the first defendant

has successfully proved the defence taken in the written

statement by adducing oral and documentary evidence and

the fact that she is the purchaser of the property directly

from the second defendant – Mariyamma for valuable

consideration under the sale deed, who is admittedly the

owner of the property.

The plaintiffs have sought for the relief of declaration

to cancel the sale deed dated 13.08.2009 executed by the

second defendant – Mariyamma in favour of the first

defendant – Ramamma and to declare that they are the

owners of the schedule property by virtue of sale deed

dated 27.12.2002 and for mandatory injunction directing

the third defendant to effect khatha in the name of the

plaintiffs.

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The Trial Court has also observed that when the

plaintiffs have utterly failed to prove their case, the

question of effecting khatha in their names does not arise.

The plaintiffs have failed to prove their title and possession

over the schedule property. Therefore, they are not

entitled for relief of declaration and cancellation of sale

deed dated 13.08.2003.

The Trial Court has also observed that the second

defendant is not a necessary party. But it has held that the

suit filed by the plaintiffs is a comprehensive suit and in

order to adjudicate the same, the presence of second

defendant is essential. There is no substance in the

defence taken by her.

Therefore, the Trial Court has held that the suit filed

by the plaintiffs against the defendant was dismissed.

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8. Feeling aggrieved by the same, the plaintiffs

have preferred this Regular First Appeal.

9. Learned counsel for the appellants submits as

under:

Learned Senior Counsel, Sri.Padmanabha Mahale,

submitted that the Trial Court failed to notice the fact that

the appellant, H.K.Nanjappa was in possession of the suit

property by virtue of the registered sale deed dated

27.12.2002. The second respondent has transferred her

right in respect of the schedule property in favour of

Smt.Pramilamma vide General Power of Attorney dated

9.3.1990. In pursuance to the General Power of Attorney,

Pramilamma executed an absolute sale deed in favour of

the original plaintiff. When the property is already sold by

the second respondent in favour of Pramilamma, she could

not have executed another sale deed dated 13.8.2003 in

favour of the first respondent transferring the very same

property. The Trial Court erred in relying upon the

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statement made by the second respondent in her written

statement that she has not entered the witness box to

adduce evidence. The second respondent also failed to

produce any document to substantiate the fact that the

General Power of Attorney executed by her in favour of

Pramilamma was a sham document. The impugned

judgment and decree passed by the Court below is

erroneous. The Trial Court erred in dismissing the suit of

the plaintiffs without noticing the fact that the original

plaintiff H.K.Nanjappa was the absolute owner of the

schedule property having purchased the same vide

registered sale deed dated 27.12.2002. The Trial Court

ignored the fact that the entire sale consideration of

Rs.70,000/- has been paid to second respondent. It was

on this basis, she executed the General Power of Attorney

in favour of Pramilamma. The Trial Court erred in

observing that first respondent has acquired title over the

property vide registered sale deed dated 13.8.2003

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without noticing the fact that even prior to that, in the year

2002, the second respondent had already sold the property

in favour of the original plaintiff, H.K.Nanjappa and

subsequent sale deed of the first respondent was void in

the eye of law. The Trial Court erred in not noticing the

fact that O.S.2388/2004 was filed by Nanjappa against his

neighbour one Subbamma seeking permanent injunction

and the said suit has been decreed by the City Civil Court

vide judgment and decree dated 8.4.2009, thereby

confirming the fact that the plaintiffs were in possession of

the schedule property. The Trial Court erred in observing

that the earlier suit O.S.3634/2000 was filed by

Pramilamma W/o.H.K.Nanjappa on behalf of the second

defendant, Smt.Mariyamma and that the subsequent suit

O.S.2388/2004 was filed by Nanjappa in his personal

capacity and it was not filed on behalf of the second

defendant and the second defendant was never a party to

the suit. The Trial Court erred in not noticing the fact that,

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at the time of earlier suit in the year 2000, the sale deed

in favour of H.K.Nanjappa was not executed and that at

the time of subsequent suit in the year 2004, the sale deed

dated 27.12.2002 had already been executed in favour of

Nanjappa. The Trial Court erred in relying upon the

statement of the second respondent made in the written

statement that she never executed any document in favour

of Pramilamma and that the General Power of Attorney

and affidavit are not genuine. The Trial Court erred in

relying on this statement of the second respondent having

regard to the fact that the second respondent never

entered into witness box to adduce evidence and that

apart, she has not produced any document to substantiate

the said fact. The Trial Court erred in not noticing the fact

that the original title deeds in respect of the schedule

property, i.e. the sale deed dated 27.5.1980 executed by

the vendor of second respondent in her favour was in

possession of the plaintiffs and it was marked as Ex.P.5.

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The Trial Court erred in observing that under the General

Power of Attorney executed by the second respondent in

favour of Pramilamma, the consideration amount of

Rs.70,000/- has been passed on and that under the sale

deed dated 27.12.2002, the property could not have been

sold for a consideration of Rs.2,40,000/-. The Trial Court

erred in observing that in the sale deed at Ex.P.30, there is

no reference to the sale agreement or affidavit executed

by the second defendant. The Trial Court failed to notice

that the sale deed at Ex.P.30 was executed on 27.12.2002

whereas the sale agreement and affidavit are dated

11.12.1999 and 9.3.1990 respectively. The Trial Court

erred in observing that Pramilamma could not have

executed the sale deed dated Ex.P.30 for consideration of

Rs.2,40,000/- and Mariyamma has executed General

Power of Attorney in her favour for consideration of

Rs.70,000/-. The Trial Court erred in observing that the

consideration of Rs.2,40,000/- was never paid to the

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second respondent. The Trial Court erred in observing that

PW.1 has not admitted the fact that the possession of the

schedule property has been handed over by virtue of

General Power of Attorney and the affidavit produced at

Exs.P.28 and P.29 respectively. The Trial Court failed to

notice the case of the plaintiffs that possession of the

property was handed over on the basis of General Power of

Attorney and this fact has been admitted in the affidavit

executed by second respondent. Hence, PW.1 could not

have denied the said fact.

The observation of the Trial Court that Pramilamma

has not stepped into the witness box to speak about the

transaction and that the evidence of her son, PW.1 is not

on her behalf is not correct. The Trial Court erred in

observing that PW.1 in his cross-examination has admitted

that the possession of the property has not been handed

over to the plaintiffs when in fact there is no such

admission by PW.1. The Trial Court failed to consider the

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judgment passed by the City Civil Court in O.S.2388/2004

holding that the appellants are in possession of the

schedule property and they are entitled for injunction.

Learned Senior Counsel also invited the attention of

this Court to Section 53A of the Transfer of Property Act.

He submits that Ex.P.8 is a fraudulent document. Ex.P.30-

registered sale deed dated 27.12.2002 was executed by

the General Power of Attorney holder in favour of the

original plaintiff. In view of Section 53A of the Transfer of

Property Act, there was part performance. He also invited

the attention of this Court to the principles of equity.

An application is filed by the appellants for

production of additional documents and the learned Senior

Counsel seeks to allow the application.

Attention of this Court was invited to Section 31 of

the Specific Relief Act. It is the case of the appellants that

they are in possession of the suit schedule property. They

35

are bonafide purchasers. Respondent No.2-Mariyamma

did not have any authority to sell the property in favour of

defendant No.1 – Ramamma, since there was an earlier

sale deed executed by Pramilamma W/o.H.K.Nanjappa in

exercise of the General Power of Attorney executed by

Mariyamma in favour of H.K.Nanjappa.

10. Learned counsel for the appellants relied upon

the following judgments:

i) In the case of N.BASAVARAJ SINCE

DECEASED BY HIS LRs. vs B.SRIDHAR AND

ORS., reported in ILR 2009 KAR 1534;

wherein Head Note ‘B’ reads as under:

“B) TRANSFER OF PROPERTY ACT, 1882-

SECTION 53-A-Doctrine of part performance

embodied under-Object and intent of Section

53-A- HELD, The doctrine of part performance

embodied in Section 53-A of the Transfer of

property Act is an equitable doctrine. The

36

object of this section is to prevent a transferor

or his successor in interest from taking any

advantage on account of the non-registration

of the document, provided the transferee has

performed his part of the contract and in

pursuance thereof has taken possession of

some immovable property. The essentials of

Section 53-A are, (i) a contract to transfer

immovable property; (ii) the contract must be

for consideration; (iii) it must be in writing

signed by or on behalf of the transferor; (iv)

the terms can be ascertained from the writing;

(v) the transferee has taken possession or is

already in possession of the property; (vi) he

has done some act in furtherance of the

contract; and (vii) he has performed or is

willing to perform his part of the contract. ON

FACTS, HELD, In the present case, after

entering into contract as per EX.P.2, the

plaintiff was put in possession of the property.

He was required to pay a sum of Rs.40,000/-

within a period of three months from the date

of EX.P2. Accordingly, the plaintiff has paid a

sum of Rs.40,000/- as per Ex.P.3 within the

37

said period. Thus, he has done something in

furtherance of the contract and he was always

been ready and willing to perform the contract.

Plaintiff has established that the defendants

have agreed to sell the suit schedule property

to the plaintiff under the agreement at Ex.P.2

and that the plaintiff has been in possession

and enjoyment of the said property from the

date of the said document. The plaintiff is

therefore entitled to institute a suit for

injunction against the defendants basing his

suit under Section 53-A of the Transfer of

Property Act, even though the period of

limitation for bringing a suit for specific

performance has expired.”

ii) In the case of NARASIMHASETTY

vs. PADMASETTY reported in ILR 1998 KAR

3230; wherein Head Note reads as under:

“TRANSFER OF PROPERTY ACT 1882,

(CENTRAL ACT No.4 OF 1882) Section 53-A

Whether the defence available to the

transferee under Agreement to sell under

38

Doctrine of part performance” is lost in case

where the suit for specific performance of the

contract is barred by time? HELD-Transferee

under an Agreement to sell can resist a suit for

possession by the owner of the property even

though there is failure on his part to bring a

suit for specific performance within the period

of limitation because the extinction of the

statutory remedy by some reason or the other,

does not lead to the extinction of a right

created by a legislature by incorporating

Section 53-A in the Act.”

iii) In the case of SURAJ LAMP AND

INDUSTRIES PVT. LTD. vs. STATE OF

HARYANA AND ANOTHER reported in 2011

AIR SCW 6385; wherein the Head Note reads

as under:

“Transfer of property Act (4 of 1882), Ss.

5 54-Registration Act (16 of 1908)S.17-Powers

of Attorney Act (7 of 1882), S.2-Succession

Act (39 0f 1925), S.63-Immovable property-

39

Transfer-Can be validly made only be

registered sale deed- Not by sale agreement/

General Power of Attorney or Will.”

iv) In the case of SETH LOON KARAN

SETHIYA vs IVAN E.JOHN reported in 1968

Legal Eagle (SC) 125; wherein paragraph

No.5 reads as under:

“5. There is hardly any doubt that the

given by the appellant in favour of the Bank is

a power coupled with interest. That is clear

both from the tenor of the document as well as

from its terms. Section 202 of the Contract

Act provides that where the agent has himself

an interest in the property which forms the

subject-matter of the agency the agency

cannot, in the absence of an express contract,

be terminated to the prejudice of such interest.

It is settled law that where the agency is

created for valuable consideration and

authority is given to effectuate a security or to

secure interest of the agent, the authority

cannot be revoked. The document itself says

40

that the power given to the Bank is

irrevocable. It must be said in fairness to Shri

Chagla that he did not contest the finding of

the High Court that the power in question was

irrevocable.”

v) In the case of THE BIHAR EASTERN

GANGETIC FISHERMEN CO-OPERATIVE

SOCIETY LTD., vs SIPAHI SINGH AND

OTHERS reported in AIR 1977 SC 2149;

wherein Head Note ‘C’ reads as under:

“C. T.P. Act (1882) Ss.54 And 3-General

Clauses Act (1897) S.3 (26)-Transaction of

sale of right to catch and carry away fish-

Registered instrument necessary.

The right to catch and carry away the fish

being a “profit a prendre” i.e., a profit or

benefit arising out of the land, it has to be

regarded as immovable property within the

meaning of the Transfer of property Act read in

the light of S.3 (26) of the General Clauses

Act. If a ‘profit a prendre’ is tangible

41

immovable property, its sale has to be by

means of a registered instrument in case its

value exceeds Rs.100/- because of S.54 of the

Transfer of Property Act. If it is intangible, its

sale a required to be effected by a registered

instrument whatever its value. Therefore, in

either of two situations, the grant of the “profit

a prendre” has to be by means of a registered

instrument. Accordingly, the transaction of

sale of the right to catch and carry away the

fish if not effected by means of a registered

instrument, would pass no title or interest.”

vi) In the case of CORPORATION

BANK, BANGALORE vs. LALITHA H.HOLLA

AND OTHERS reported in AIR 1994

KARNATAKA 133; wherein Head Notes ‘C’

and ‘D’ read as under:

“C. Contract Act (9 of 1872) S.202-

Irrevocable Power of Attorney – Terms not

disclosing creation of agency coupled with

interest in favour of agent – Mere use of word

42

‘irrevocable’ does not make the power of

Attorney irrevocable.

Mere use of word ‘irrevocable’ in a Power of

Attorney will not make the Power of Attorney

‘irrevocable’ unless the terms there of, disclose

that it created or recognized an agency

coupled with interest in favour of the Agent. A

Power of Attorney simpliciter which merely

authorised an Agent to do certain acts in the

name of or on behalf of the executant can be

revoked or cancelled by the executant at any

time in spite of the instrument stating that the

Power of Attorney is irrevocable. On the other

hand, a Power of Attorney executed in favour

of an Agent, recording or recognising an

inertest of the Agent/Attorney in the property

which is the subject matter of the Agency,

cannot be revoked or terminated, even if the

instrument does not state specifically that it is

irrevocable, as then it would be a power

coupled with an interest.

D. Registration Act (16 of 1908), Ss.2(6)

17(1)(d) and (e)- Power of Attorney –Creating

43

equitable assignment of rents-Requires

registration-Unregistered document void and

unenforceable.”

vii) In the case of BINNY MILL

LABOUR WELFARE HOUSE BUILDING CO-

OPERATIVE SOCIETY LIMTED vs.

D.R.MRUTHYUNJAYA ARADHYA reported in

ILR 2008 KAR 2245, wherein Head Note ‘C’

reads as under:

“C. INDIAN REGSITRATION ACT, 1908-

PART X - Effect of registration and non-

registration of an instrument provisions of

Sections 47, 48 and 49 - Registration of an

instrument - Effect of non-registration -

Transfer of title Legality of transactions-HELD,

A combined reading of Sections 47, 48 and 49

makes it clear that an instrument which

purports to transfer title to the property

requires to be registered, the title does not

pass until registration has been affected. The

registration by itself does not create a new

44

title. It only affirms a title that has been

created by the deed. The title is complete and

the effect of registration is to make it

unquestionable and absolute. Section 47 of

the Act makes it clear that a registered

document shall operate from the time from

which it would have commenced to operate if

no registration thereof had been required or

made and not from the time of its registration-

FURTHER HELD, However, Section 47 of the

Registration Act makes it clear that, though a

document is registered on a particular date,

the effective date would be the date on which

the said document was executed and not from

the date of registration. If the document is not

registered but is compulsorily registerable,

though the document is duly executed, it has

no legal effect and it does not affect the

immovable property comprised in the said

document in view of Section 49 of the Act.

The registration of such a duly executed

document comes into operation, the moment it

is duly registered, not from the date of

45

registration but from the date of execution of

the said document.”

viii) In the case of A.N.NAGARAJAIAH

vs. B.ARVIND AND OTHERS reported in

2014(3) KCCR 1999, wherein Head Notes A

and B read as under:

“A. REGISTRATION ACT,1908-Sections

17(1A) and 49-Agreement of sale-possession

of immovable property was said to have been

delivered – Held, it is compulsorily registrable-

Otherwise by virtue of Section 49 of the Act, it

cannot affect the immovable property.

B. TRANSFER PROPERTY ACT,1882-

Sections 53A and 54-Benefit under Section

53A-Agreement of sale – possession of

immovable property said to have been given.”

ix) In the case of ATTAUR RAHEMAN

FATEH MOHMMAD vs. HARI PEERAJI

BURUD, DIED LR’S AND ORS., reported in

46

AIR 2008 (NOC) 1900 (BOM.); wherein

Head Note ‘B’ reads as under:

“(B) Transfer of property Act(4 of 1882),

S.7-Transfer of property-person not holding

transferable interest in property-Cannot

transfer the property-Transferee not bound by

agreement executed by such transferor.”

x) In the case of NITTALA ACHAYYA

AND OTHERS vs. NITTALA YELLAMMA AND

OTHERS reported in AIR 1923 MADRAS

109; wherein it is held that -

“In a suit for cancellation of a document

under S.39 of the Act the plaintiff must allege

that if the instrument challenged is left

outstanding it will cause him injury. To be able

to allege this he must have an interest in the

property dealt with by the document.”

xi) In the case of SURAJ LAMP AND

INDUSTRIES PRIVATE LIMITED vs. STATE

47

OF HARYANA AND ANOTHER reported in

2011 (6) KAR 69; wherein paragraph No.13

reads as under:

“13. A power of attorney is not an

instrument of transfer in regard to any right,

title or interest in an immovable property. The

power of attorney is creation of an agency

whereby the grantor authorises the grantee to

do the acts specified therein, on behalf of

grantor, which when executed Will be binding

on the grantor as if done by him (see Section

1-A and Section 2 of the powers of Attorney

Act,1882). It is revocable or terminable at any

time unless it is made irrevocable in a manner

known to law. Even an irrevocable attorney

does not have the effect of transferring title to

the grantee. In State of Rajasthan and Others

v. Basant Nahata, this court held:

“A grant of power of attorney is

essentially governed by Chapter X of the

Contract Act,1872. By reason of a deed

of power of attorney, an agent is formally

appointed to act for the principal in one

48

transaction or a series of transactions or

to manage the affairs of the principal

generally conferring necessary authority

upon another person. A deed of power of

attorney is executed by the principal in

favour of the agent. The agent derives a

right to use his name and all acts, deeds

and things done by him and subject to

the limitations contained in the said

deed, the same shall be read as if done

by the donor. A power of attorney is, as

is well-known, a document of

convenience.

Execution of a power of attorney in

terms of the provisions of the Contract

Act as also the Powers of Attorney Act

1882, is valid. A power of attorney, we

have noticed hereinbefore, is executed by

the donor so as to enable the donee to

act on his behalf except in cases where

power of attorney is coupled with interest

it is revocable. The donee in exercise of

his power under such power of attorney

only acts in place of the donor subject of

49

course to the powers granted to him by

reason thereof. He cannot use the power

of attorney for his own benefit. He acts

in a fiduciary capacity.

Any act of infidelity or breach of trust

is a matter between the donor and the

donee”.

An attorney holder may however execute a

deed of conveyance in exercise of the power

granted under the Power of Attorney and

convey title on behalf of the grantor.”

11. Learned counsel for respondent No.1 submits

as under:

The suit schedule property was not delivered to the

plaintiff or his wife. As per the sale agreement dated

11.12.1989, property was agreed to be sold and according

to the said agreement of sale, the purchaser has to get the

General Power of Attorney or register document within

three months. The vendor of the plaintiff obtained the

General Power of Attorney. The General Power of Attorney

50

does not create any right, title or interest in favour of the

holder of the General Power of Attorney. Such person

cannot transfer the immovable property in favour of third

party since she did not have right to transfer the property.

Pramilamma, wife of the original plaintiff did not have

right, title or transferable interest over the suit schedule

property and therefore, the plaintiffs will not get any right

over the suit schedule property.

Defendant No.1, i.e. the subsequent purchaser

purchased the property directly from the original owner,

i.e. defendant No.2 for a valuable consideration. When

there is no execution of the sale deed by Mariyamma in

favour of Pramilamma, the question of delivering

possession does not arise. He further submits that the

entire case of the plaintiff is that the wife of the original

plaintiff became the absolute owner of the suit schedule

property by virtue of the General Power of Attorney and

agreement of sale. Pramilamma, wife of the original

51

plaintiff has executed the sale deed in favour of her

husband as if she is the absolute owner of the property in

question. When power of attorney creates an interest in

respect of an immovable property, the instrument has to

be registered as per the provisions of Section 17(1)(b) of

the Indian Registration Act. Therefore, this document will

not come to the aid of the plaintiffs. Attention of this

Court was invited to Clause-8 of the General Power of

Attorney wherein it is stated that executor of the power of

attorney will relinquish her right over the schedule

property in favour of the General Power of Attorney holder.

Therefore, when this clause has been incorporated in

Ex.P.3-General Power of Attorney, it is mandatory to

register the document under Section 17(1)(b) of the

Indian Registration Act and in view of Section 49 of the

Indian Registration Act, such document cannot be received

in evidence unless it has been registered. During cross-

examination of PW.1, he has clearly admitted that no

52

consideration has been passed on between H.K.Nanjappa

in favour of Pramilamma. Even Pramilamma has not

handed over the amount of Rs.2,40,000/- to the second

defendant, who sold the property on behalf of second

defendant. He also submits that Pramilamma has not

acted as an agent in the sale of the suit property on behalf

of Mariyamma, but she has acted as if she is the absolute

owner of the property.

Learned counsel for respondent No.1 also submits

that there is no pleadings in the plaint regarding

ingredients or requirements of Section 31 of the Specific

Relief Act which are mandatory. The original plaintiff will

not get any right, title or interest over the suit schedule

property under the sale deed executed by his wife in his

favour. Therefore, he is not an affected person and he

cannot seek relief under Section 31 of the Specific Relief

Act.

53

12. Learned counsel for the respondents has relied

on the following rulings:

i) In the case of RAMACHANDRA

SAKHARAM MAHAJAN vs. DAMODAR

TRIMBAK TANKSALE (D) AND OTHERS

reported in 2008 (1) KCCR 385; wherein

Head Note ‘A’ reads as under:

“A. SPECIFIC RELIEF ACT,1963 - Section

6 - suit for possession based on title-Burden on

proof of title-On the plaintiff-Weakness or

fairness of defendant would it mean that the

plaintiff has discharged the burden-No.”

ii) In the case of Dr.S.M.SURESH vs

G.P.VAMANA RAO reported in ILR 2005

KAR 904; wherein it is held that -

“REGISTRATION ACT, 1908 – SECTION

17 - REGISTRATION OF A DOCUMENT –

EFFECT OF NON REGISTRATION-HELD- Any

document unless it is registered cannot create

any interest in the immovable property as per

54

the provisions of Section 17 - ON FACTS HELD

- The Transaction in question is a mortgage-

Unregistered agreement was entered into

between the parties- The possession of the

defendant should be construed only as

permissive possession - and a suit for

possession is maintainable - Since the

mortgage document was not registered. The

suit for redemption is not maintainable.”

He further submits that since the General Power of

Attorney and agreement of sale have not been registered,

no interest has been created in favour of the General

Power of Attorney holder i.e. wife of the plaintiff. The

General Power of Attorney cannot be given any weightage

since there is no transfer of interest. This is clear from the

tenure of the document. Section 202 of the Contract Act

provides that where the agent himself has an interest in

the property which forms the subject-matter of the

agency, the agency cannot, in the absence of an express

contract, be terminated to the prejudice of such interest.

55

13. In view of the above contentions raised by the

parties, the following points arise for consideration in this

appeal.

i) Whether I.A.1/2012 filed by the

appellants under Order XLI Rule 27 of the Code

of Civil Procedure deserves to be allowed?

ii) Whether the judgment and decree of

the Trial Court calls for interference by this

Court?

Point No.1: In support of the application, appellant

No.1(b) has sworn to an affidavit stating that the appellant

No.1(a) is his mother and the above appeal is filed

challenging the judgment and decree passed by the

learned City Civil Judge, Bangalore, in O.S.No.1655/2005.

The second respondent has executed a General Power of

Attorney on 9.3.1990 and agreement of sale dated

56

11.12.1989 in favour of his mother. Since then his mother

and her family members were in peaceful possession and

enjoyment of the suit schedule property.

14. The second defendant addressed a letter to the

Assistant Revenue Officer, Bangalore Mahanagara Palike,

on 6.10.2004. The second defendant has admitted

execution of Exs.P.2, P.3 and P.4. His mother had

purchased the suit schedule property and acting on the

said power of attorney, executed Ex.P.30-registered sale

deed dated 27.12.2002 in favour of his father. The

certified copy of the letter addressed by the second

defendant to the Bangalore Mahanagara Palike was

obtained by them on 6.12.2011, which clearly reflects the

fact that the plaintiffs are in possession of the schedule

property. During December 2011, when he went to the

Office of the Bangalore Mahanagara Palike, to obtain all

the documents submitted by the defendants, he came

across the said letter. Immediately, thereafter he obtained

57

the certified copy of the said letter. Hence, the application

for production of additional evidence.

15. Learned counsel for respondent No.1 has filed

the objection statement to the application stating that the

application is not maintainable. The Trial Court has

already discussed in this regard and held that the

appellants have failed to establish their case. Appellant

No.2 is neither a party nor having knowledge about

execution of the document. He is not author of any of the

document placed before the Trial Court. All the documents

were signed by the first appellant, but she is not examined

as a witness and confronted the document. The letter

addressed by the second respondent dated 16.12.2011

which is produced before the Court does not create any

right, title or interest in favour of the plaintiffs. The said

document will not create any new ground to set aside the

judgment and decree passed by detailed discussion. The

evidence lead by the appellants has been considered by

58

the Trial Court and the Trial Court dismissed the suit filed

by the plaintiffs. The appreciation of evidence by the Trial

Court is in accordance with law. The appellants have

suppressed the fact about legal heirs of Nanjappa and all

the parties are not brought before the Court. Therefore,

respondent No.1 prays to dismiss the application.

16. Order XLI Rule 27 of the Code of Civil

Procedure deals with production of additional evidence in

appellate stage. The true test to be applied in dealing with

application for additional evidence is whether the appellate

Court is able to pronounce the judgment on the material

placed before it, without taking into consideration the

additional evidence sought to be adduced. The appellate

Court may also allow the application for any other

substantial cause. It is well settled that when the evidence

before the Court is sufficient to pronounce the judgment in

a satisfactory manner, normally additional evidence will

not be allowed. In the instant case, the appellants intend

59

to produce a letter addressed to the Deputy Commissioner,

BBMP. The evidence placed before the Court is sufficient

to justify the decision of the Trial Court. Even if the

additional document is received in evidence, in my opinion,

the decision rendered by the Trial Court may not vary. In

that view of the matter, the application for additional

evidence is liable to be dismissed. Accordingly, I answer

point No.1 in the negative.

Point No.2: Section 31 of the Specific Relief Act

deals with cancellation of instruments. The relief given

under this Section is founded upon the administration of

protective justice for fear. The principle is that such

document though not necessary to be set aside may, if left

outstanding, be a source of potential mischief. In a suit

under Section 31 of the Specific Relief Act for cancellation

of an instrument, three points must be made good by the

plaintiff.

60

a) That the document is void or voidable.

b) That the plaintiff has a reasonable

apprehension that such instrument is left

outstanding may cause him serious injury.

c) That the Court ought, under the circumstances

of the case, in the exercise of its discretion

adjudge the instrument void or voidable.

This relief is based on discretion of the Trial Court

and on sound principles of law. The requisite conditions

mentioned hereinabove has to be narrated in the plaint.

But, in the instant case, the original plaintiff has omitted to

narrate these aspects. Though in the relief column, it is

prayed for cancellation of the sale deed dated 13.8.2003

executed by the second defendant in favour of the first

defendant in respect of the schedule property, there is no

satisfactory evidence adduced by the plaintiff in conformity

to the prayer sought. Therefore, the appellants are not

entitled for the relief of cancellation of the instrument, i.e.

sale deed dated 13.8.2003.

61

17. Learned Senior Counsel, Sri.Padmanabha

Mahale, has invited the attention of this Court to Section

53A of the Transfer of Property Act. He mainly relied on

this Section to contend that the wife of the plaintiff was

put in possession of the suit schedule property by the

second defendant. Therefore, he submits that possession

of the plaintiffs is protected. It is well settled that

agreement of sale does not create any interest in favour of

the purchaser. It creates an obligation which may be

enforced against the true owner. The agreement of sale

does not confer any interest over the property, where the

agreement holder is not in possession of the property in

terms of the agreement. The right given under Section

53A of the Transfer of Property Act cannot be invoked for

enforcement of an obligation. It is a defence weapon only.

Section 53A can be used as a shield to protect possession

and not as a sword. When possession was given in terms

of the power of attorney and not in terms of the

62

agreement of sale, protection under Section 53A of the

Transfer of Property Act could not be claimed. The legal

representatives of the plaintiff should have instituted a suit

for specific performance within the period of limitation, i.e.

three years. In the instant case, plaintiff 1(a) has not

instituted any suit for specific performance. From this, it

can be gathered that it is a time barred suit. Once the

remedy for acquiring the right is not availed, equitable

relief of protection of possession comes to an end. Such a

protection is co-terminus and does not survive beyond the

span of agreement. The General Power of Attorney holder

i.e. plaintiff 1(a) was silent for about 13 years. It is well

settled that benefit of Section 53A of the Transfer of

Property Act is not available to a transferee who remains

passive. To claim benefit under Section 53A of the

Transfer of Property Act, a party must have paid the

consideration at the time of agreement or must show

readiness and willingness to pay the consideration agreed

63

upon at a later stage or must show readiness and

willingness to pay the money at the current market price

by taking into consideration the escalated market price.

18. On the principles mentioned hereinabove, I

have carefully examined the judgment of the Trial Court

and also the documentary evidence. In this case, plaintiff

1(a) has not entered into witness box and has not deposed

before the Court. On the other hand, her son i.e. plaintiff

1(b) has deposed before the Court. He clearly admits in

his cross-examination has under:

“It is true that as per the agreement at

Ex.P.2, possession of the suit property was not

given”

From this, it is clear that based on the agreement of

sale, possession of suit property was not handed over to

plaintiff 1(a). If at all possession of the suit property is

handed over, it is only based on the General Power of

Attorney. The agreement of sale is dated 11.12.1989

64

whereas the General Power of Attorney is dated 9.3.1990.

There is a gap of three months.

19. In the instant case, at the first instance,

agreement of sale was executed since there was a bar for

registration of revenue sites. The sale deed could not be

executed. Therefore, in order to circumvent the law,

General Power of Attorney was executed by defendant

No.2 in favour of plaintiff 1(a), Smt.Pramilamma.

Normally, General Power of Attorney will be executed on

the basis of trust. No doubt, in the instant case, there is

evidence to the effect that Rs.70,000/- was parted. A sale

deed can be executed by registering the same in the Office

of the Sub-Registrar by observing the provisions of the

Indian Registration Act and Transfer of Property Act. Such

a step has not been taken in the instant case. On the

other hand, since it is a revenue site, an agreement of sale

and thereafter, as the time was the essence of the

contract, at the end of the period indicated in the

65

agreement of sale, General Power of Attorney was

executed. This clearly discloses that no interest or title

was transferred in favour of plaintiff 1(a). Plaintiff 1(a)

has transferred the property in question in favour of her

husband. There is no positive evidence to the effect that

consideration amount was passed on from original plaintiff

to the plaintiff 1(a) and that the amount of Rs.2,40,000/-

received by plaintiff 1(a) was handed over to the person

who executed the General Power of Attorney, i.e.

defendant No.2. In the instant case, plaintiff 1(a) has

acted as if she is the absolute owner of the property in

question. Such course is not permissible in law. The Trial

Court carefully appreciated the evidence and the material

placed on record and has come to the conclusion that the

suit is liable to be dismissed.

20. Learned Senior Counsel, Sri.Padmanabha

Mahale, invited the attention of this Court to the Doctrine

of Equity. In this case, Rs.70,000/- was parted by

66

Smt.Pramilamma under the agreement of sale. Learned

counsel for Respondent No.1 fairly submits that

respondent No.1 who is the subsequent purchaser intends

to return Rs.70,000/-. Therefore, first defendant / first

respondent is directed to return the amount of Rs.70,000/-

with interest at 8% per annum from the date of agreement

till the date of realisation to the appellants.

21. In view of the above discussion, I pass the

following:

O R D E R

i) This Regular First Appeal is allowed in part.

ii) The judgment and decree dated 20.1.2011

passed in O.S.No.1655/2005 on the file of the

XL Additional City Civil Judge, Bangalore, is

hereby confirmed.

iii) Defendant No.1/respondent No.1 is directed to

return the amount of Rs.70,000/- with interest

67

at 8% per annum from the date of agreement

till the date of realisation.

Sd/-

JUDGE JTR/KM