Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 528 (KAR)

Natalia Lobo v. Leo Lobo

2023-03-29

H.P.SANDESH

body2023
JUDGMENT 1. This matter is listed for admission. Heard the learned counsel appearing for the appellant. 2. This appeal is filed challenging the judgment and decree dtd. 30/8/2017 passed in R.A.No.27/2016 on the file of the III Additional Senior Civil Judge, Mangaluru, D.K. 3. The factual matrix of the case of the plaintiff before the Trial Court is that while seeking the relief of cancellation of sale deed dtd. 25/2/2002 and General Power of Attorney dtd. 11/11/1980 contended that the plaint 'A' schedule property originally obtained on geni by one Jacob Lobo, who is the father-in-law of the plaintiff. After came into force of the Karnataka land Reforms Act, Mr. Jacob Lobo filed an application in Form No.7, the same is numbered as L.R.T.No.216/79-80 before the Land Tribunal, Mangaluru. The Land Tribunal, Mangaluru granted occupancy rights with respect to the plaint 'A' schedule property as per order dtd. 6/10/1981 in favour of Mr. Jacob Lobo. Thereafter the occupancy certificate in Form No.10 was issued by the Special Tahasildar, Mangaluru in the name of Jacob Lobo. Ever since the grant of the property he was in possession and enjoyment of the schedule property. 4. It is also contended that Mr. Jacob Lobo was a bachelor and asked his brother's son namely Noel Lobo and his family to reside along with him so as to help him in his household work and in cultivation of the property granted to him. It is also contended that for all the work and service rendered by the plaintiff and her husband, out of love and affection Late Jacob Lobo had executed a registered Will dtd. 27/2/2002 and bequeathed the plaint schedule property in favour of plaintiff. Other than the said Will no other document has been executed nor schedule properties was given to the third parties. It was not the intention of Mr. Jacob Lobo to give the same to any other person other than the plaintiff. 5. It is also the case of the plaintiff that the said Jacob Lobo died on 9/8/2002 due to sudden ailment at Mudigere of Chickmagaluru District. After the death of Jacob Lobo the plaintiff continued in possession and cultivation of the schedule property along with her family and since she is in possession of the plaint schedule property, the plaintiff did not bother to change the R.T.C. or any other revenue records in her name till recently. After the death of Jacob Lobo the plaintiff continued in possession and cultivation of the schedule property along with her family and since she is in possession of the plaint schedule property, the plaintiff did not bother to change the R.T.C. or any other revenue records in her name till recently. She gave application to the Tahasildar, Mangaluru Taluk along with the copy of the Will and death certificate of Mr. Jacob Lobo to get her name entered in the RTC of suit schedule property. The plaintiff got surprise that her application was rejected on the ground that the RTC is standing in the name of 2nd defendant by virtue of sale deed executed by the deceased Jacob Lobo through his power of attorney the 1st defendant and the power of attorney dtd. 11/11/1980 and the sale deed was registered on 25/2/2002 for a sale consideration of Rs.3, 000.00. The plaintiff definitely known that the concocted document has been created alleged to be the power of attorney of Late Jacob Lobo that too of the year 1980 and a forged sale deed has been created on the basis of the alleged power of attorney. Mr. Jacob Lobo had no intention or made any document in favour of the first defendant and had powers to sell the plaint 'A' schedule property to any third party. The deceased Jacob Lobo never thought of selling the property to anyone and the concocted document created by the defendants are all forged documents. The date of alleged power of attorney is that of the date prior to the grant of the land by the Land Tribunal to the deceased Jacob Lobo. The land was granted to Jacob Lobo on 6/10/1981 under LRT No.216/79-80. The alleged power of attorney has been given on 11/11/1980 itself is very clearly shows that the document is forged document. Mr. Jacob Lobo himself attended the proceedings before the Land Tribunal. There were no power of attorney nor any intention to execute the power of attorney before granting the land to him. The plaintiff did not know about the alleged power of attorney and the sale deed till recently and on 28/2/2005 when the plaintiff applied for change of RTC, she came to know that all the forged documents have been created and on the basis of the same the RTC and other revenue records have been changed. The plaintiff did not know about the alleged power of attorney and the sale deed till recently and on 28/2/2005 when the plaintiff applied for change of RTC, she came to know that all the forged documents have been created and on the basis of the same the RTC and other revenue records have been changed. Hence, without any other alternative remedy, the plaintiff has filed the suit seeking the relief of cancellation of sale deed and also the general power of attorney. 6. In pursuance of the suit summons, the defendants are appeared through their Counsel and filed the written statement interalia admitted that the suit schedule property was obtained on geni by Jacob Lobo. After advent of Karnataka Land Reforms Act, Jacob Lobo has filed an application before the Land Tribunal in LRT No.216/79-80, the same was granted as per order dtd. 6/10/1981 in favour of Jacob Lobo. Further admitted that the occupancy certificate in Form No.10 was issued by the Special Tahasildar in favour of Jacob Lobo, ever since Mr. Jacob Lobo was in possession and enjoyment of the suit schedule property. But denied the other averments with regard to Jacob Lobo asked his brother's son by name Noel Lobo, to take care of the property and execution of the Will. It is contended that based on the power of attorney defendant No.2 has sold the property to defendant No.1 as per the registered Sale Deed dtd. 25/2/2002. Defendant No.2 had lived in the said house for about 5 years till he married defendant No.1. Thereafter he started living in Kompadavu at parent's house of defendant No.1 along with her. But he used to visit the plaint schedule properties daily to look after and manage the affairs of the same. The husband of the plaintiff namely Mr. Noel Lobo was working in Mumbai and he came down to his native and married the plaintiff. The husband of the plaintiff and the plaintiff and another brother of 2nd defendant namely Pius Lobo had no homestead of their own and therefore, the husband of the plaintiff requested defendant No.2 to accommodate them on permissive occupation in the house bearing Door No.3-25 (Old Door No.3-18/2) and 3-24 (Old Door No.3-18/1). Since then both the plaintiff and her husband were in permissive occupation. The brother of defendant No.2 Mr.Pius Lobo was residing in the house bearing No.3-24 of defendants as licensee. Since then both the plaintiff and her husband were in permissive occupation. The brother of defendant No.2 Mr.Pius Lobo was residing in the house bearing No.3-24 of defendants as licensee. The first defendant has revoked both license of plaintiff and her husband and the said Pius Lobo. The defendants have filed a suit in O.S.No.500/2005 on the file of I Additional Civil Judge (Jr.Dn.) for mandatory injunction and permanent prohibitory injunction against the plaintiff and her husband and Mr. Pius Lobo. 7. The defendants have denied that Mr. Jacob Lobo had executed a registered Will dtd. 27/2/2002, wherein, the Court has given the finding that the Will has not been proved and no appeal is filed before the Deputy Tahasildar in view of making an entry in respect of the suit schedule property. Totally they have denied any intention of Jacob Lobo in executing the Will. The defendants also contended that the plaintiff is not having any manner of right in respect of the suit schedule property. 8. The Trial Court based on the pleadings of the plaintiff and the defendants framed ten issues and allowed the parties to lead evidence. The plaintiff in order to prove her case, she herself examined as P.W.1 and got marked two documents as Exs.P1 and P10. On the other hand, the defendants have not examined and not produced any documents. 9. The Trial Court after considering both oral and documentary evidence available on record answered issue Nos.1, 3, 4, 5 and 9 as negative, issue Nos.2 and 6 are deleted, which are not require to be considered and issue Nos.7 and 8 are affirmative that whether the defendants prove that the suit of the plaintiff is barred by limitation. Hence, they are not entitled for any relief. Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed before the First Appellate Court, which is numbered as RA No.27/2016. 10. In the said appeal, the plaintiff has contended that the Trial Court has committed an error in not considering the material available on record and also committed an error that no issues are framed with regard to the Will is concerned and the very judgment of the Trial Court is perverse, the same is one sided and without appreciating the pleadings of both oral and documentary evidence, passed the judgment. Based on the grounds urged before the First Appellate Court, the First Appellate Court also framed the points for consideration that whether the plaintiff has proved her title and ownership over the suit 'A' schedule properties, as per the Will dtd. 27/2/2002 executed by Jacob Lobo in her favour and alleged sale deed and General Power of Attorney is concocted by defendants and whether the judgment and decree of the Trial Court requires an interference. 11. The First Appellate Court on re-appreciation of both oral and documentary evidence available on record answered point Nos.1 and 2 as negative and came to the conclusion that there was a sale deed executed by Jacob Lobo. In pursuance of the said General Power of Attorney, the sale deed was executed by defendant No.1 in favour of defendant No.2, which is based on the power of attorney executed by Mr. Jacob Lobo. Being aggrieved by the judgment and decree of the Trial Court as well as the First Appellate Court, the present second appeal is filed before this Court. 12. The learned counsel appearing for the appellant would vehemently contend that both the Courts have committed an error and failed to take note of the pleadings of the plaintiff and failed to appreciate the entire defense of the defendants was false and without there being a legal foundation. Late Jacob Lobo executing a General Power of Attorney on 11/11/1980 is against the provisions of law and the sale deed based on such alleged general power of attorney is void ab initio and thus the suit of the plaintiff ought to have been decreed. The learned counsel also would vehemently contend that the Trial Court has wrongly framed the issues for its consideration. It was the specific contention of the plaintiffs that the General Power of Attorney executed by Jacob Lobo was concocted and since he was very much available at Mangaluru he could have executed the Sale Deed by himself and no circumstance has made him to execute the general power of attorney in favour defendant No.1 and the very execution of Sale Deed by defendant No.1 in favour of defendant No.2 is nothing but only to knock off the property of Mr. Jacob Lobo. Jacob Lobo. Hence, the learned counsel for the appellant would vehemently contend that this Court has to frame the substantial question of law and the judgment and decree against the provisions of Ss. 44 and 61 of the Karnataka Land Reforms Act, 1961. Both the Courts were unjustified in holding that the plaintiff had failed to prove that the Sale Deed and General Power of Attorney was concocted if the answer to issue No.1 is in the affirmative? Hence, this Court has to admit the appeal and frame the substantial question of law. 13. Having heard the learned counsel appearing for the appellant and on perusal of the material available on record, it is not in dispute that the property is a geni property and the geni right is given to Mr. Jacob Lobo. The main contention of the learned counsel appearing for the appellant is that the grant was made in the year 1981 and the sale agreement was of the year 1980. He was having no right to execute any such sale agreement. The learned counsel also would submit that the Will was executed and the same is a registered Will dtd. 27/2/2002 and the sale deed was executed on 25/2/2002 by the Power of Attorney holder of Mr. Jacob Lobo i.e., defendant No.1 in favour of defendant No.2 and the same does not confer any right. Admittedly, it is not in dispute that earlier the suit was filed by the defendants for the relief of bare injunction, wherein, the legality of the document of the Will was considered by the Court, wherein, a definite finding was given that the Will has not been proved. In the case on hand, when the plaintiff sought for the relief of declaration seeking cancellation of sale deed as well as the Power of Attorney, in order to prove that the said two documents are obtained by playing fraud, the plaintiff has to place the material before the Court. In order to substantiate that those documents are created and concocted except examined the plaintiff herself not placed any material before the Court and also not examined any witnesses, only relies upon documents - Exs.P1 to P10. In order to substantiate that those documents are created and concocted except examined the plaintiff herself not placed any material before the Court and also not examined any witnesses, only relies upon documents - Exs.P1 to P10. When the specific relief is sought for cancellation of the sale deed and also the power of attorney, the plaintiff has to establish that the sale deed is executed in favour of defendant No.2 based on the power of attorney executed in favour of defendant No.1 by Jacob Lobo, to prove the fact that the very power of attorney is concocted and no material had been placed before the Court. Hence, both the Courts came to the conclusion that the plaintiff has not proved the same to grant the relief of declaration. 14. It is also the contention of the learned counsel for the appellant that the sale agreement is prior to granting of right in favour of Jacob Lobo. The said contention cannot be accepted for the reason that under Sec. 43 of the Transfer of Property Act, 1882, even if the defective title and if subsequently title is confirmed in favour of the executant, cannot take the contention that no right was given as on the date of execution of the document and the parties estopped from taking such a defense. No doubt, the contention of the learned counsel for the appellant that the sale agreement was prior to 1980 and grant was made in the year 1981, cannot be accepted in view of invoking Sec. 43 of the Transfer of Property Act. Hence, I do not find any error committed by the Trial Court as well as the First Appellate Court in appreciating the material available on record. No sufficient material is produced before the Court to grant the relief of declaration for cancellation of the sale deed as well as the power of attorney and the grounds which have been urged by the plaintiff before the Trial Court has not been established by placing any cogent evidence before the Court. Hence, I do not find any ground to admit the appeal and to frame the substantial question of law. 15. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed.