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Identification of Property, Nagendra Babu vs Manohar Rao Pawar, ILR 2005 Kar 884

Identification of Property, Nagendra Babu vs Manohar Rao Pawar, ILR 2005 Kar 884

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Equivalent citations: ILR 2005 KAR 884Bench: R GururajanT.L. Nagendra Babu vs Manohar Rao Pawar on 16/12/2004ORDER 6 RULE 15 - Verification of pleadings under - HELD - Pleadings should be verified by the party who is acquainted with the facts of thecase - A party must also specify the number of paragraphs and his knowledge, information and belief withregard to the paragraphs - Verification must be signed by the concerned party by mentioning the date andplace.(B) EVIDENCE ACT, 1872 - SECTION 85 - PRESUMPTION AS TO POWERS OF ATTORNEY UNDER- HELD - Presumption operates in favour of the party relying on a document, provided he must prove that thedocument is duly executed and authenticated.(C) SUIT FOR DECLARATION AND INJUNCTION - REQUIREMENT OF EVIDENCE - DUTY OF THECOURT - HELD - Unless the Court is satisfied with regard to material details in the light of the materialevidence with regard to the identification of the property, no declaration and injunction can be granted.Held:In the light of these Judgments, what is clear to this Court is that to have a presumption under Section 85 of the Evidence Act, the document in question namely the power of attorney has to be to the satisfaction of the.Court in the matter of maintainability. The Court has already referred to the various infirmities in terms of theoriginal power of attorney itself. Evidence is also sketchy from the plaintiff side. Though the defendant hasargued at great length by pointing out the various infirmities, the learned Judge unfortunately has not chosento give a proper finding and instead has chosen to reject the same on the ground of no issue. The learnedJudge again in pars 15 notices the plea of maintainability and after noticing the same, he has brushed aside thecrucial issue raised by the appellant. In the given circumstances and on the basis of the material placed onrecord, I am satisfied that the requirement of the pleadings and the signature in terms of Order 6 Rules 14 and15 is not made out by the plaintiff.When the plaintiff" approached a Court of law with serious allegations, he must give some details whichcompelled him to file the suit in question.The learned Judge has not taken the case seriously and has chosen to give several findings contrary to theevidence on record. Learned Judge himself notices that there is no evidence but despite the same he answersthe same in favour of the plaintiff. The entire approach of the learned Judge to say the least is totallyunwarranted on the facts and circumstances of this case. There is no proper evidence with regard tomaintainability of the suit; there is no proper evidence with regard to court fee; there is no proper evidencewith regard to cause of action; there is no evidence with regard to possession, but despite the same, thelearned Judge has chosen to grant an injunction relief in the case on hand. Grant of injunction is serious innature. It affects the rights of the parties. The Court must be very careful in evaluating the pleadings andevidence in the matter of injunction. Unfortunately, this basic principle has not been properly noticed/ appreciated by the learned Judge in the case on hand.R.S.A. 386/02 allowed and R.F.A. 495/02 dismissed.JUDGMENT
T.L. Nagendra Babu vs Manohar Rao Pawar on 16 December, 2004Indian Kanoon - http://indiankanoon.org/doc/1279324/ 1
R. Gururajan, J.1. These three appeals are disposed of by this common order. All these three appeals arise out of an orderpassed in O.S.No.3421/ 2000 dated 8.2.2002 by the learned Addl. City Civil Judge, Bangalore.2. R.F.A. No. 386/2002 is filed by Nagendra Babu. Facts" in brief are as under:One Mr. Manohar Rao Pawar, the plaintiff-respondent filed a plaint in O.S.No, 3421/2000. According to thepetition averments, he is the absolute owner and possession of the suit schedule site. It is a portion of thelarger area bearing Corporation No. 10. Properties stood in the name of late Shivaramanand Bharathi. Theplaintiff purchased the same for valuable consideration by a registered sale deed dated 8.7.1987. Thedefendant is a stranger to the suit property. He has no manner of right, title or interest. He started a schoolcalled Kids Convent located at the North-East corner of No. 10 of the Corporation. The suit scheduleproperty/ site and location of the school in No. 10 are shown in the sketch annexed to the plaint. The plaintiff is temporarily outside the country. His G.P.A. holder looks after the property. G.P.A, holder receivedinformation that some one is digging the storm water drainage on the northern side of the suit scheduleproperty. The G.P.A. holder of the plaintiff and the younger brother of the plaintiff traced the defendant andenquired him thereafter. With these facts the plaintiff sought for a declaration and a consequential injunctionin terms of the plaint averments.3. Suit was contested. The defendant states that the property described in the alleged sale deed by the plaintiff is different from the suit schedule property. In the year 1887, late Sri Shivaramanand Bharathi was not inpossession of any immovable -property in his personal capacity. Property stood in his name and it was in thecapacity as a Matadhipathi of Sri Gosai Mutt, Gavipuram, Bangalore. The Government took over themanagement, with all its properties. This was challenged in O.S.NO.338/1973 by late Sri ShivaramanandBharathi. Suit was finally disposed of on 11.8.1987. Late Sri Shivaramanand Bharathi filed execution petitionfor possession of the immovable property, as per Judgment and Decree. Execution petition was closed fordefault on 4.10.1991. Thereafter, Execution Petition No. 786/1996 was filed and the same is pending. Thedefendant is in possession of the property in his own right. He purchased the property under the registered saledeed dated 5.3.1990. Sri Gosai Mutt filed the suit in O.S.No.2372/ 1999 against the defendant. A counter suitwas filed by the defendant-appellant in O.S.No.2400/I999. Both the suits were compromised on 7.2.2000.Defendant is in possession of the property. Learned Trial Judge framed 13 issues.4. Three witnesses were examined on behalf of the plaintiffs. One witness was examined on behalf of thedefendant. 12 documents were marked for plaintiff and 26 documents were marked for defendants. LearnedTrial Judge heard the matter and thereafter, he by the impugned order dismissed the suit filed by the plaintiff.He granted injunction against the defendant. Aggrieved by the said order, the defendant is before this Court inR.F.A.No.386/2002.5. R.F.A.No.664/2002 is filed by this very appellant-defendant seeking for lodging a complaint for fabricationand forgery of Ex.P2 and for sending the same to the jurisdictional Metropolitan Magistrate at Bangalore Cityfor action in accordance with law.6. R.F.A.No.495/2002 is filed by the plaintiff challenging the findings regarding the title of the plaintiff in thecase on hand.7. Heard Sri S.P.Dondale, learned Counsel at great length. He took me through the pleadings and evidence onrecord to contend that the suit itself is not maintainable in the light of the suit having been filed by a personnot having an acceptable power of attorney. He relies on the evidence and also the Judgment of the Court insupport of his submissions. He further argues that there, is no cause of action at all in the case on hand interms of the pleadings. Learned Counsel also says that the plaintiff is out of possession and that therefore,there cannot be any injunction. Even otherwise, he says that there is a dispute with regard to identity of the
T.L. Nagendra Babu vs Manohar Rao Pawar on 16 December, 2004Indian Kanoon - http://indiankanoon.org/doc/1279324/ 2
property and in such circumstances, the learned Judge could not have granted injunction in the case on hand.He refers to various pleadings and the evidence on record to contend that the impugned order requires myinterference. He has referred to me the provisions of C.P.C. and other relevant laws in support of hissubmissions. He relies on various Judgments to which I would be adverting to at the relevant point of time. Healso says that the Court fee is not properly paid and the Court has failed to notice this aspect of the matter.Ultimately, he wants the appeals to be allowed. In so far as the other appeal is concerned, learned Counselsays that he wants action to be taken in the given circumstances.8. Per contra, Sri Bhat, learned Counsel says that G.P.A has been properly executed and the evidence onrecord is in support of his submissions. Learned Counsel also says that the plaintiff has a better title as rightlyheld by the learned Judge. In so far as possession is concerned, he says that the learned Judge is right in hisfinding in this regard. Learned Counsel also says that in terms of the written statement, the argument of causeof action has to be rejected. In so far as identity is concerned, learned Counsel refers to the material evidenceand the material pleadings in support of his submissions. He wants his appeal to be allowed and the counterappeal filed by the defendant to be dismissed.9. After hearing, I have carefully perused the material on record.10. At the outset, it is to be noticed of an essential argument advanced by the appellant. Material on recordwould reveal that the plaintiff-respondent filed a suit for declaration and permanent injunction through thepower of attorney holder Eshwar Sindhe. The same was seriously contested by the appellant-defendant. 13issues have been framed by the learned Judge. Three witnesses have been examined in addition to productionof 12 documents. The appellant examined one witness and produced 26 documents. Learned Trial Judge haspassed a detailed order in terms of his findings.11. I will be dealing the case in terms of the findings given by the learned Judge and in terms of the relevantissues/arguments advanced before me by the parties.1. Power of Attorney/Verification of pleadings:12. Though there was no issue as such has been framed with regard to general power of attorney, the samewas pressed into service at the time of arguments. Learned Counsel pointed out various infirmities with regardto the right of Mr.Manohar Rao Pawar in filing the present suit as a power of attorney holder.Ex.Pl is the xerox copy of the G.P.A.Ex.P2 is the original of the G.P.A.13. It is seen from the material on record that the plaintiff admits that G.P.A. is dated 15.2.1998 and that hewas present when Ex.P2 was executed. It was done before the Notary. He expressed his ignorance with regardto the name of the Notary and that with regard to identification while executing G.P.A. P.W.2, youngerbrother of the plaintiff has denied the suggestion that his brother did not execute G.P.A in the case on hand.DW1 has stated that about 4 months prior to 12.10.2001, he enquired the Notary Sri Sangameshwar, who said,such name and signature was not there, thereby referring to the plaintiff. He has also stated that SriSangameshwar has not given him anything in writing with regard to G.P.A.14. Learned Judge, after noticing these materials has chosen to reject the same only on the ground that there isno specific issue on this aspect of the matter. While attacking these findings, learned Counsel invites myattention to various provisions of C.P.C. He also showed me from the records that the power of attorneycannot be relied upon in the case on hand.
T.L. Nagendra Babu vs Manohar Rao Pawar on 16 December, 2004Indian Kanoon - http://indiankanoon.org/doc/1279324/ 3

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