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2014 DIGILAW 252 (KAR)

Subrahmanya G. v. Lakshmamma

2014-02-26

H.BILLAPPA

body2014
ORDER 1. In W.P. No. 47283 of 2013, the petitioner has called in question, the order dated 19.9.2013, passed by the Appellate Court in M.A. Nos. 39 and 40 of 2013 vide Annexure-H in so far it relates to setting aside the order of the Trial Court on IA No.1. 2. In W.P.No.58208/2013, the petitioner has called in question, the order dated 19.9.2013, passed by the appellate court in M.A.No.40/2013 confirming the order passed by the Trial Court in O.S.No.17/2013 on IA No.2 vide Annexure-G. 3. By the impugned order passed in M.A.Nos.39 and 40/2013, the Appellate Court has reversed the order passed by the Trial Court on IA No.1 in O.S.No.17/2013 by allowing M.A.No.39/2013 and M.A.No.40/2013 has been dismissed. 4. Aggrieved by that, these writ petitions have been filed. 5. For the sake of convenience, the parties will be referred to with reference to their rank in W.P.No.47283/2013. 6. Briefly stated the facts are: The petitioner in W.P.No.47283/2013 has filed suit in O.S.No.17/2013 for permanent injunction contending that the petitioner and his brothers Sri. G. Krishna Murthy and Sri. G. Jayateertha are in joint possession and enjoyment of the suit schedule property measuring 20 guntas in Sy.No.38 and 20 guntas in Sy.No.39 of Gajanur Agrahara village, Shimoga Taluk. 7. The respondent who is petitioner in W.P.No.58208/2013 has filed his written statement contending that the suit schedule property was mortgaged in his favour by G. Venkatesh Rao and his sons in the year 1984. Thereafter, the sale agreement dated 15.6.1989 has been executed by the petitioner’s father, petitioner and his brother G. Krishna Murthy. It is stated, possession was delivered and the respondent continued in possession. Thereafter, the petitioner and his brothers have executed a registered General Power of Attorney dated 17.9.1997 in favour of the respondent. On the same day, a sum of Rs.1,00,000/has been paid by the respondent to the petitioner and his brothers and they have executed a receipt. The respondent is in possession and enjoyment of the suit schedule property. 8. The petitioner has filed I.A.No.1 for temporary injunction. The respondent has filed I.A.No.2 for temporary injunction. The Trial Court by its order dated 18.3.2013 has allowed IA No.1 and has granted temporary injunction in favour of the petitioner. The application filed by the respondent has been rejected. Aggrieved by that, the respondent has preferred appeals in M.A.Nos.39 and 40 of 2013. The respondent has filed I.A.No.2 for temporary injunction. The Trial Court by its order dated 18.3.2013 has allowed IA No.1 and has granted temporary injunction in favour of the petitioner. The application filed by the respondent has been rejected. Aggrieved by that, the respondent has preferred appeals in M.A.Nos.39 and 40 of 2013. The Appellate Court by its order dated 19.9.2013 has allowed M.A.No.39/2013 and has reversed the order passed by the Trial Court on IA No.1. M.A.No.40/2013 has been dismissed. Therefore, these writ petitions. 9. The learned counsel for the petitioner in W.P.47283/2013 contended that the impugned order in so far it relates to setting aside the order of the Trial Court on IA No.1 is concerned, it cannot be sustained in law. He also submitted that the Trial Court on proper consideration of the material on record had rightly granted injunction. The Appellate Court without any valid reason has reversed the order passed by the Trial Court. Therefore, the impugned order cannot be sustained in law. He also submitted that the suit schedule property has fallen to the share of the petitioner and his brother in the partition and they are in possession and enjoyment of the suit schedule property. Inviting my attention to RTC entries the learned counsel for the petitioner submitted that right from the year 2001 to 2013 the entries stand in the name of the petitioner. Further he submitted that the tax paid receipts also stand in the name of the petitioner. The documents produced by the petitioner prima-facie show that he is in possession and enjoyment of the suit schedule property. Therefore, Appellate Court was not justified in reversing the order passed by Trial Court on IA No.1. The Appellate Court have erred while interfering with the order passed by the Trial Court. The documents produced by the respondent cannot be relied upon. The mortgage deed and the sale agreement are insufficiently stamped and unregistered documents. The General Power of Attorney is only an agency and cannot confer any right, title or interest in the property and the receipt is denied. Therefore, the impugned order in so far as it relates to reversing the order passed by the Trial Court on IA No.1 is concerned, it cannot be sustained in law. The General Power of Attorney is only an agency and cannot confer any right, title or interest in the property and the receipt is denied. Therefore, the impugned order in so far as it relates to reversing the order passed by the Trial Court on IA No.1 is concerned, it cannot be sustained in law. He placed reliance on the following decisions: (1) AIR 2010 SC page 3221 (2) 2011 (3) KCCR page 1772 (3) 2008 (3) KCCR page 1537 (4) AIR 2002 SC page 504. 10. As against this, the learned counsel for the respondent submitted that the impugned order passed in M.A.No.39/2013 does not call for interference. He also submitted that the Trial Court as well as the Appellate Court have erred while rejecting IA No.2 filed by the respondent for grant of injunction. Further he submitted that the petitioner’s father G. Venkatesh Rao and his sons had mortgaged the property in favour of the respondent on 10.7.1987 for a sum of Rs.20,000/and possession was delivered. Thereafter, the petitioner’s father and his elder brother have executed a document dated 15.6.1989 agreeing to executed the sale-deed and delivering possession. Thereafter, the petitioner and his brothers have executed a registered General power of attorney dated 17.9.1997. On the same day, the respondent and his brothers have received a sum of Rs.1,00,000/from the respondent and executed a receipt for having received the amount. The GPA and the receipt relate to the suit schedule property. The petitioner is in possession and enjoyment of the suit schedule property. Therefore, the Trial Court as well as the Appellate Court were not justified in rejecting IA No.2. Therefore, the impugned order passed in M.A.No.40/2013 confirming the order passed on IA No.2 cannot be sustained in law. 11. I have carefully considered the submissions made by the learned counsel for the parties. 12. The point that arises for my consideration is: Whether the impugned order calls for interference? 13. It is relevant to note, the suit in O.S.No.17/2013 has been filed by the petitioner for permanent injunction. The petitioner contends that himself and his brothers are in joint possession and enjoyment of the suit schedule property. According to the petitioner, the suit schedule property was jointly allotted to him and his brothers in the partition dated 19.3.1997. 13. It is relevant to note, the suit in O.S.No.17/2013 has been filed by the petitioner for permanent injunction. The petitioner contends that himself and his brothers are in joint possession and enjoyment of the suit schedule property. According to the petitioner, the suit schedule property was jointly allotted to him and his brothers in the partition dated 19.3.1997. The respondent contends that the suit schedule property was mortgaged in his favour by the father of the petitioner Sri. G. Venkatesh Rao and his sons on 10.7.1987 and possession was delivered. Thereafter, the document dated 15.6.1989 was executed by the petitioner’s father and his elder brother agreeing to executed the sale deed and possession was delivered. Subsequently, the petitioner and his brothers have executed a registered General Power of Attorney dated 17.9.1997. On the same day, the petitioner and his brothers have received a sum of Rs.1,00,000/from the respondent and a receipt has been executed. No doubt, as contended by the learned counsel for the petitioner, a presumption needs to be raised in respect of the revenue entries in the RTC. But, it is rebuttable. The fact that the property belongs to the petitioner’s family is not in dispute. It is also not in dispute that the petitioner and his brothers have executed a registered GPA. But, it is contended that the documents produced by the respondent are not reliable. The mortgage deed and sale agreement are unregistered and insufficiently stamped. The mortgage deed shows that the suit schedule was mortgaged in favour of the respondent on 10.7.1987 and possession was delivered. The document dated 15.6.1989 has been executed by the petitioner’s father and his elder brother agreeing to execute the sale deed and possession has been delivered. The mortgage deed and the document dated 15.6.1989 are not registered documents. It is contended that they are insufficiently stamped. However, the petitioner and his brother have executed registered GPA dated 17.9.1997 in favour of the respondent. The recitals of GPA show that the respondent is authorised to manage the property, borrow money, enter into sale agreement, sell the property etc. On the same day, the petitioner and his brothers have received a sum of Rs.1,00,000/from the respondent and executed a receipt. The registered GPA and the receipt clearly show that the GPA is coupled with interest. The recitals of GPA show that the respondent is authorised to manage the property, borrow money, enter into sale agreement, sell the property etc. On the same day, the petitioner and his brothers have received a sum of Rs.1,00,000/from the respondent and executed a receipt. The registered GPA and the receipt clearly show that the GPA is coupled with interest. The sequence of events and the contents of registered GPA and the receipt clearly show that the respondent was put in possession of the suit schedule property. Therefore, in my considered view, in the circumstances of the case, there is no merit in the contention that the petitioner is in possession and enjoyment of the suit schedule property. The material on record prima-facie shows the respondent is in possession. Therefore, the Appellate Court was not justified in dismissing M.A.No.40/2013 confirming the order of the Trial Court on IA No.2 and has rightly reversed the order passed on IA No.1. Therefore, the impugned order passed by the Appellate Court needs to be modified. Accordingly, the writ petition in W.P.No.58208/2013 is allowed and the order passed by the Appellate Court in M.A.No.40/2013 is hereby set aside. I.A.No.2 filed by the respondent in O.S.No.17/2013 is allowed granting injunction in favour of the respondent and restraining the petitioner from interfering with the possession and enjoyment of the suit schedule property by the respondent. The writ petition filed by the petitioner in W.P. No. 47283 of 2013 is hereby dismissed.