Mothisingh, S/o. B. Hapu Singh v. Kalaiah, S/o. Late Kalaiah
2025-07-07
RAMACHANDRA D.HUDDAR
body2025
DigiLaw.ai
JUDGMENT : (RAMACHANDRA D. HUDDAR, J.) This appeal is filed under Order XLIII Rule 1 (r) of the Code of Civil Procedure (for short, "CPC"), 1908, arising out of the order dated 02.05.2025 passed by the VII Additional Senior Civil Judge and J.M.F.C., Mysuru in O.S.No.427/2025, whereby, I.A.Nos. 2 and 3 filed by the plaintiff under Order XXXIX Rule 1 and 2 of read with Section 151 of CPC were dismissed. The appellant herein is a plaintiff before the Trial Court has preferred the present appeal being aggrieved by the rejection of his application seeking temporary injunction restraining 26 th defendant from interfering with his lawful possession and from alienating the suit schedule property pending disposal of the suit. 2. The facts in brief, which have given rise to present appeal are as under : The appellant/plaintiff instituted a suit in O.S.No.427/2025 seeking relief of declaration and consequential reliefs claiming that, he has acquired irrevocable rights and possession over the suit schedule properties by virtue of 2 registered General Power of Attorneys executed in his favour on 05.05.2018 by defendant Nos.1 to 19. These GPA documents are undisputedly registered and they contain categorical recitals to the effect that, the entire consideration had been paid by the plaintiff to the respective executants at the time of execution of the instruments. It is further recorded in the said GPA that, possession of the property was simultaneously handed over to the plaintiff, who has since then been in uninterrupted and settled possession. The plaintiff asserts that, the GPA's are not mere instruments of agency simpliciter, but constitute authority coupled with interest, and are therefore irrevocable in law. 3. It is the assertion of the plaintiff in the plaint that, the defendants Nos. 1 to 25, in purported violation of the earlier transaction with the plaintiff, executed another GPA dated 17.05.2023 in favour of defendant No. 26, pursuant to which the said defendant No. 26, in a self- serving act, executed a registered Sale Deed on 26.11.2024 in his own favour. The plaintiff upon learning of these developments in the month of February, 2025, obtained Encumbrance Certificate and revenue records which revealed that, defendant No.26 had also got the revenue entries mutated in his name.
The plaintiff upon learning of these developments in the month of February, 2025, obtained Encumbrance Certificate and revenue records which revealed that, defendant No.26 had also got the revenue entries mutated in his name. The plaintiff alleges that, the GPA dated 17.05.2023 was fraudulently and collusively executed in complete suppression of the subsisting GPA of 2018 and that the Sale Deed dated 26.11.2024 executed by defendant No. 26 in his own favour is void and non-est in law, being based on an invalid and unauthorized foundation. 4. Under these circumstances, plaintiff filed the present suit in O.S.No.427/2025 on the file of the VII Additional Senior Civil Judge and JMFC at Mysuru, seeking relief of declaration that, he has irrevocable interest in the suit schedule property under the GPA dated 05.05.2018 and that the subsequent GPA and Sale Deed executed in favour of and by defendant No. 26 are not binding upon him. Along with the plaint, the plaintiff has also filed two interlocutory applications in the shape of IA.Nos.2 and 3 seeking ad-interim relief in the nature of temporary injunction to protect his possession and restrain defendant No.26 from alienating or altering the nature of the property pending disposal of the suit. 5. Before the Trial Court, the defendants appeared and opposed the application so filed by the plaintiff. 6. The, learned Trial Court on hearing the arguments of both the sides on I.A.Nos.2 and 3, proceeded to dismiss the applications of the plaintiff vide order dated 02.05.2025, holding that, the GPA's executed in favour of the plaintiff, even if registered, do not create or confer any title and that defendant No. 26 having a registered Sale Deed, has acquired superior legal rights. The Trial Court further observed, that there are discrepancies in the manner of recording of a sale consideration in the GPA's and that the plaintiff had not taken adequate steps to convert the GPA into a Sale Deed in all these years. Holding that, no prima facie case was made out, and that balance of convenience did not tilt in favour of the plaintiff, the applications for temporary injunctions were rejected. This is how now the plaintiff/appellant is before this Court challenging the impugned order. 7.
Holding that, no prima facie case was made out, and that balance of convenience did not tilt in favour of the plaintiff, the applications for temporary injunctions were rejected. This is how now the plaintiff/appellant is before this Court challenging the impugned order. 7. Having heard the learned counsel for the appellant and the learned counsel for the respondents and on a thorough perusal of the records, this Court finds, that the order of Trial Court suffers from legal infirmities and misapplication of well settled principles governing injunctions, irrevocable agency and possession. At the very outset, it must be emphasized that, the law recognizes a distinction between a simple power of attorney and a power of attorney which is coupled with the interest. 8. Section 202 of the Indian Contract Act, 1872, 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 for the prejudice of such interest. This doctrine is intended to protect transactions where the agent having paid consideration or acquired a stake in the subject matter, is placed in a position that he must not be divested of his authority arbitrarily. 9. In the instant case, the registered GPA dated 05.05.2018 clearly record the payment of a full consideration, and explicitly recite the delivery of possession of the schedule properties to the plaintiff. These documents are not mere authorizations to act but confer a tangible and enforceable interest upon the plaintiff. Further, there is no rebuttal of these documents by defendant Nos. 1 to 19, who have remained ex-parte before the Trial Court and even before this Court and they have not denied their execution. It is settled law that, when a registered document carries a presumption of genuineness under the Registration Act, the burden to displace such a presumption lies heavily upon the person challenging it. In the absence of any such challenge, and in view of the fact that, the GPA's confer an interested possession, the plaintiff clearly makes out a prima facie case for interim protection. 10. The learned Trial Court has erroneously relied upon the judgment of the Hon'ble Apex Court in SURAJ LAMP & INDUSTRIES (P) LTD.
In the absence of any such challenge, and in view of the fact that, the GPA's confer an interested possession, the plaintiff clearly makes out a prima facie case for interim protection. 10. The learned Trial Court has erroneously relied upon the judgment of the Hon'ble Apex Court in SURAJ LAMP & INDUSTRIES (P) LTD. (2) V. STATE OF HARYANA , reported in (2012) 1 SCC 656 , without appreciating that, the said Judgment does not apply to transactions of the present nature. The Hon'ble Apex Court in that very Judgment carved out exceptions to the general prohibition on GPA sales by expressly holding that, transactions where the GPA is coupled with consideration and possession will not be affected by the decision. The object of the judgment was to prevent evasion of Stamp Duty and Benami transactions, not to invalidate genuine and lawful agency transactions supported by consideration and possession. The plaintiff's transaction falls fairly within the protective exceptions to Suraj Lamp case and was wrongly assessed by the Trial Court as a GPA sale simpliciter. Equally displaced is the Trial Court's finding that the plaintiff's failure to obtain a Sale Deed over several years indicates that the GPAs are ineffective. It is not uncommon in land transactions, especially where title documents or revenue maps are pending, for parties to execute GPAs with a view to formalize the sale subsequently. More importantly, when the GPA is irrevocable by reason of consideration and possession, the lapse of time does not extinguish the underlying rights. Furthermore, the Court ought to have recognized that the plaintiff is in settled possession, which itself entitled same to interim protection under law. 11. The Hon'ble Apex Court in catena of Judgments has consistently held that, a person in peaceful possession of an immovable property, even without title, is entitled to protection against unlawful dispossession. The 26 th defendant, who entered into the picture only in the year 2023-24, claims to have executed a Sale Deed in his own favour on the basis of a subsequent GPA, which on the basis of it, is in violation of the earlier irrevocable GPAs. The Trial Court rejected the injunction application on the ground that the 26 th defendant holds a registered Sale Deed, without adjudicating the validity of the underlying GPA dated 17.05.2023, amounts to putting the cart before the horse.
The Trial Court rejected the injunction application on the ground that the 26 th defendant holds a registered Sale Deed, without adjudicating the validity of the underlying GPA dated 17.05.2023, amounts to putting the cart before the horse. Whether or not the subsequent GPA is valid in law is itself a subject matter of the main suit. Permitting the 26 th defendant to alter the character of the property or to dispossess the plaintiff, before the Trial is concluded, could amount to prejudging the suit and rendering the adjudicatory process negatory. The Court must in such cases lean in favour of preserving status quo to ensure that the lis is adjudicated on its merits. 12. Lastly, the Trial Court's observation on the handwritten entries of a sale consideration in the GPAs are premature and misplaced. The documents are registered and the recitals are presumed to be correct, unless rebutted. Any doubt as to the authenticity of such entries must be tested in trial with evidence. Such speculative reasoning cannot be a valid ground to reject interim relief, particularly where the balance of convenience and prima facie case are otherwise established by the plaintiff. 13. In view of the above discussion, this Court is of the considered opinion that the plaintiff has made out a prima facie case. The balance of convenience tilts in his favour. If the temporary injunction is not granted as prayed, it is plaintiff who would be put to greater hardship in view of his continuous possession of the property right from the date of execution of the GPA. He is in possession, has paid full consideration, holds registered document and faces a threat of illegal alienation and dispossession. The injury is not merely apprehended but imminent and irreparable. On the other hand, the 26 th defendant suffers no prejudice if status quo is preserved. Therefore, the appeal deserves to be allowed. 14. Resultantly, I pass the following: ORDER (i) The Miscellaneous First Appeal is allowed. (ii) The common order dated 02.05.2025 passed by the VII Additional Senior Civil Judge and J.M.F.C. Mysuru, in O.S.No.427/2025 on I.A.Nos. 2 and 3 is hereby set aside. The said applications are allowed.
Therefore, the appeal deserves to be allowed. 14. Resultantly, I pass the following: ORDER (i) The Miscellaneous First Appeal is allowed. (ii) The common order dated 02.05.2025 passed by the VII Additional Senior Civil Judge and J.M.F.C. Mysuru, in O.S.No.427/2025 on I.A.Nos. 2 and 3 is hereby set aside. The said applications are allowed. (iii) The 26 th defendant is hereby restrained by an order of temporary injunction from interfering with the peaceful possession of the plaintiff over the suit schedule property and also restrained from alienating or creating any third party interest therein, pending disposal of the suit. (iv) It is made clear that all the observations made supra are for the limited purpose of disposal of this present appeal and shall not influence the Trial Court while deciding the suit on merits. (v) Costs made easy.