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Sri R Venkataswamy Reddy Vs. Smt Shantha Abraham - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberRFA 1135/2013
Judge
AppellantSri R Venkataswamy Reddy
RespondentSmt Shantha Abraham
Excerpt:
1 in the high court of karnataka at bengaluru dated this the27h day of january, 2020 r before the honble mr. justice h.p.sandesh r.f.a.no.1135/2013 c/w r.f.a.no.116/2013 in r.f.a.no.1135/2013 s/o late b.v. ramaswamy reddy, aged about63years.between :1. sri r. venkataswamy reddy, 2. sri. r. babu reddy, s/o. late b.v. ramaswamy reddy, aged about55years. both are r/at no.64/65, 3rd cross, doddabanaswadi, bengaluru-560 043. s/o. late b.v. krishna reddy, aged about40years, r/at no.59, doddamane, near bus stand, doddabanaswadi, bengaluru-560 043.3. sri. k. sreenivasa murthy, (by sri. l.s. venkatakrishna, advocate for a-1 and a-2, smt. b. uma, advocate for sri. t.n. srinivasareddy, adv. for a-3) and: smt. shantha abraham, w/o. dr. k. abraham jacob,... appellants2aged about55years, no.956,.....
Judgment:

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE27H DAY OF JANUARY, 2020 R BEFORE THE HONBLE MR. JUSTICE H.P.SANDESH R.F.A.No.1135/2013 C/W R.F.A.No.116/2013 IN R.F.A.No.1135/2013 S/O LATE B.V. RAMASWAMY REDDY, AGED ABOUT63YEARS.

BETWEEN :

1. SRI R. VENKATASWAMY REDDY, 2. SRI. R. BABU REDDY, S/O. LATE B.V. RAMASWAMY REDDY, AGED ABOUT55YEARS. BOTH ARE R/AT No.64/65, 3RD CROSS, DODDABANASWADI, BENGALURU-560 043. S/O. LATE B.V. KRISHNA REDDY, AGED ABOUT40YEARS, R/AT NO.59, DODDAMANE, NEAR BUS STAND, DODDABANASWADI, BENGALURU-560 043.

3. SRI. K. SREENIVASA MURTHY, (BY SRI. L.S. VENKATAKRISHNA, ADVOCATE FOR A-1 AND A-2, SMT. B. UMA, ADVOCATE FOR SRI. T.N. SRINIVASAREDDY, ADV. FOR A-3)

AND:

SMT. SHANTHA ABRAHAM, W/O. DR. K. ABRAHAM JACOB,

... APPELLANT

S2AGED ABOUT55YEARS, NO.956, PUTTAPPA LAYOUT, NEW THIPPASANDRA, BENGALURU-18. (BY SRI. B.N. ANANTHA NARAYANA, ADVOCATE)


... RESPONDENT

THIS R.F.A. IS FILED UNDER SECTION96READ WITH ORDER41RULE1OF CPC AGAINST THE JUDGMENT AND DECREE DATED2409.2012 PASSED IN O.S.NO.7498/1992 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE, BANGALORE DECREEING THE SUIT FOR PERPETUAL INJUNCTION. IN R.F.A.No.116/2013 S/O. LATE B.V. RAMASWAMY REDDY, AGED ABOUT63YEARS.

BETWEEN :

1. SRI. R. VENKATASWAMY REDDY, 2. SRI. R. BABU REDDY, S/O. LATE B.V. RAMASWAMY REDDY, AGED ABOUT55YEARS. BOTH ARE R/AT No.64/65, 3RD CROSS, DODDABANASWADI, BENGALURU-560 043. S/O. LATE B.V. KRISHNA REDDY, AGED ABOUT40YEARS, R/AT No.59, DODDAMANE, NEAR BUS STAND, DODDABANASWADI, BENGALURU-560 043.

3. SRI. K. SREENIVASA MURTHY, (BY SRI. L.S. VENKATAKRISHNA, ADVOCATE FOR A1 AND A2, SMT. B. UMA, ADVOCATE FOR SRI. T.N. SRINIVASAREDDY, ADVOCATE FOR A3)

... APPELLANT

S3

AND:

1. SRI. PARABJOTH SINGH, 2. SMT. SHANTHA ABRAHAM, S/O. GIANI SURINDER SINGH, AGED ABOUT60YEARS, No.18, 9TH A CROSS, PARK AREAD, WILSON GARDEN, BENGALURU-27. W/O. DR. K. ABRAHAM JACOB, AGED ABOUT55YEARS, NO.956, PUTTAPPA LAYOUT, NEW THIPPASANDRA, BENGALURU-18. S/O. DR. K. ABRAHAM JACOB, AGED26YEARS, R/AT NO.956, PUTTAPPA LAYOUT, NEW THIPPASANDRA, BENGALURU-18.

3. SRI. SURAJ ABRAHAM, (BY SRI. B.N. ANANTHA NARAYANA, ADVOCATE)


... RESPONDENT

S THIS R.F.A. IS FILED UNDER SECTION96OF CPC AGAINST THE JUDGMENT AND DECREE DATED2409.2012 PASSED IN O.S.NO.1611/1994 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE, BANGALORE DISMISSING THE SUIT FILED FOR DECLARATION AND PERMANENT INJUNCTION. THESE R.F.As. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON2711.2019, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

JUDGMENT

R.F.A.No.1135/2013 and R.F.A.No.116/2013 are filed challenging the common judgment and decree dated 24.9.2012 passed in O.S.No.7498/1992 and O.S.No.1611/1994 4 respectively, on the file of the XIV Additional City Civil Judge, Bangalore (CCH-28).

2. The plaintiffs in O.S.No.1611/1994 had filed the suit seeking the relief of declaration that the registered sale deed dated 18.1.1989 executed in favour of defendant No.8 Sri Parabjoth Singh and the registered sale deed dated 14.6.1988 executed in favour of defendant No.11 Smt. Shantha Abraham by late Sri B. V. Ramaswamy Reddy through his Power of Attorney Sri A. Jayarama Reddy in respect of portions of plaint schedule A property are not binding on them. Further to grant permanent injunction in respect of plaint C schedule property in portion of site Nos.1 and 2 described in the plaint B schedule property against defendant No.8.

3. The factual matrix of the case of the plaintiffs in O.S.No.1611/1994 are that one Sri Venkataswamy Reddy had two sons, namely Sri B. V. Ramaswamy Reddy and Sri B. V. Krishna Reddy. Plaintiff Nos.1 and 2 are the sons of Sri B. V. Ramaswamy Reddy and plaintiff No.3 is the son of Sri B. V. Krishna Reddy. Sri Venkataswamy Reddy passed away prior to 1956. After his death, his two sons and the plaintiffs constituted 5 an undivided Hindu Joint family. Sri B. V. Ramaswamy Reddy was the kartha of the undivided Hindu Family. The said family was having considerable landed property. The kartha of the family Sri B. V. Ramaswamy Reddy had no other income except the joint family landed property. The joint family was owning a land bearing Survey No.119 of Horamavu Village, which is morefully described in Schedule A to the plaint. Till today the same is in joint possession of the plaintiffs.

4. Sri B. V. Ramaswamy Reddy had to borrow funds for the purpose of meeting of joint family necessities. Instead of executing mortgage deeds, the kartha of the family used to execute nominal sale deeds in favour of the creditors. These documents were also known as Nambike Kraya. Despite execution of such nominal sale deeds, the lands continued in possession of undivided joint Hindu family. The said land came to be transferred from person to person at the direction of kartha and ultimately at a particular point of time, the sale deed in respect of the said land stood in the name of one Sri V. C. Rajarathnam. In the year 1971, the joint family became affluent and it was in a position to repay the said loans that had to be paid to Sri V. C. Rajarathnam. Accordingly, the kartha had paid 6 the same amount of Sri V. C. Rajarathnam in respect of sale deed dated 15.9.1971. Hence, Sri V. C. Rajarathnam had reconveyed the land in favour of kartha. The joint family had also obtained loan from Primary Co-operative Land Development Bank Ltd., for the purpose of development of agricultural land under a mortgage deed dated 27.9.1976. The land was mortgaged by both brothers in favour of the Bank in respect of Survey No.119. Thus, schedule A property continued to be undivided family property. During the lifetime of Sri B. V. Ramaswamy Reddy, he purchased the schedule property on behalf of joint family and hence it is a joint family property. On 23.3.1978, once again both the brothers have mortgaged the said property in favour of P.C.L.D. Bank. On 15.12.1978, Sri B. V. Krishna Reddy died leaving behind plaintiff No.3 as his legal heir. On 6.9.1988, Sri B. V. Ramaswamy Reddy died leaving behind plaintiff Nos.1 and 2 as his legal heirs. After the death of Sri B. V. Ramaswamy Reddy and Sri B. V. Krishna Reddy, the plaintiffs are the sole surviving co-parceners of undivided Hindu joint family.

5. It is contended that during the lifetime of Sri B. V. Ramaswamy Reddy, he had formed revenue layouts with the 7 consent of other members in suit schedule A property. There was an agreement regarding future partition of the sites in between the co-parceners. The co-parceners had agreed for partition after conversion of the land into non-agriculture purpose. When such being the facts, suddenly the plaintiffs have received summons in O.S.No.7498/1992 filed by defendant No.11 (in O.S.No.1611/1994) against them. Then the plaintiffs came to know about the execution of certain sale deeds in respect of certain sites in Survey No.119. On enquiry, the plaintiffs came to know that defendant Nos.1 to 5 have purchased certain sites from Sri B. V. Ramaswamy Reddy and defendant Nos.6 to 11 have purchased certain sites from the Power of Attorney Holder of Sri B. V. Ramaswamy Reddy. As there is no partition in between the co-parceners and there was no family necessity for the joint family to sell the properties, the present suit is filed contending that the sale deeds are not binding on the plaintiffs.

6. It is also contended that even after the death of Sri B. V. Ramaswamy Reddy, the sale deeds have been executed by Power of Attorney Holders. Therefore, the defendants cannot 8 derive any right over the sites purchased in Survey No.119 of Horamavu Village. It is also contended that defendant Nos.8, 12, 3 and 7 had constructed buildings on the sites purchased by them. The said portions are shown under schedule B to the plaint. During the pendency of the suit, the plaintiffs have amended the plaint seeking the relief only against defendant Nos.8 and 11 and deleted the other defendants. As on the date of the sale deeds executed in favour of defendant Nos.8 and 11, the plaintiffs had attained majority and without their consent the sites could not be alienated. The sale deeds were neither for the legal necessities nor for family benefits of Sri B. V. Ramaswamy Reddy and Sri B. V. Krishna Reddy. Hence, the sale deeds are not binding on them. As the defendants were interfering with the joint possession of the plaintiffs over the suit schedule property, they were constrained to file the suit.

7. On service of suit summons, defendant Nos.2 and 3 filed their separate and detailed written statement. Since the suit against defendant Nos.2 and 3 came to be dismissed as deleted, there is no necessity to narrate the contents of their written statement. 9 8. Defendant No.8 filed the written statement denying the averments made in the plaint and specifically denied the averments made with regard to schedule A property is a joint family property. It is contended that the same is self-acquired property of Sri B. V. Ramaswamy Reddy. The very contention of the plaintiffs that there was no family necessity for selling the suit land by Sri B. V. Ramaswamy Reddy was denied. It is contended that the portion of Survey No.119 was converted into non-agricultural purpose by Sri B. V. Ramaswamy Reddy under conversion order dated 28.9.1972. The suit property was ceased to be an agricultural land in the year 1972 itself. The valuation of the suit property shown by the plaintiffs is not correct. Sri B. V. Ramaswamy Reddy had purchased the suit schedule property under a registered sale deed from one Sri Rajarathnam. Therefore, it is his self-acquired property. He got it converted into non-agricultural land, formed the sites and sold the sites in favour of defendant No.8 for valuable consideration. Defendant No.8 after purchasing the property, got transferred the documents in his favour and also put up construction in the year 1991 itself. He has put up 38 square R.C.C. building with compound wall. Defendant No.8 is in possession of suit schedule 10 item-A of B schedule property from 1989 itself. On 14.11.1991 itself, the plaintiffs have declared that the suit schedule property is the exclusive property of Sri B. V. Ramaswamy Reddy and accordingly they have executed General Power of Attorney in favour of Sri A. Jayarama Reddy. The plaintiffs have also confirmed in the said declaration that they have no objection to execute the sale deed in favour of defendant No.8. It is also contended that plaintiff Nos.1 and 2 have acted as a witness to the sale deed of defendant No.8. The suit is barred by limitation. Defendant No.8 has specifically contended that he has invested huge amount of more than Rs.8 lakhs for the construction of house. On these grounds, defendant No.8 prayed for dismissal of suit.

9. Another contesting defendant is defendant No.11. She filed the written statement denying the plaint averments and contended that the suit is barred by limitation. The valuation of the suit and the court fee paid by the plaintiffs is not correct. The suit is bad for mis-joinder of cause of action. Defendant No.11 also denied the very contention of the plaintiffs that there was existence of joint family and Sri B. V. Ramaswamy Reddy was acting as the kartha of the joint family. She also denied the 11 execution of nominal sale deed. She has denied the joint possession of the plaintiffs. She contended that on 14.6.1988, she purchased site No.12 from Sri B. V. Ramaswamy Reddy, who acquired the said property under a sale deed dated 15.9.1971 through a registered sale deed. The suit property never belonged to the joint family and it is a self-acquired property of Sri B. V. Ramaswamy Reddy. Therefore, defendant No.11 is the absolute owner and in possession of the said property. She denied that Sri B. V. Ramaswamy Reddy had purchased the said property by way of reconveyance on behalf of joint family. In fact, Sri B. V. Ramaswamy Reddy was a tenant under Sri Rajarathnam and he had purchased the suit schedule property from Sri Rajarathnam for a sale consideration of Rs.5,500/-. During his lifetime, Sri B. V. Ramaswamy Reddy got the land converted into non- agricultural land. Plaintiff No.1 has attested the sale deed dated 16.2.1989 as witness. On 14.11.1991, the plaintiffs had executed an agreement along with an affidavit in favour of defendant No.8 by confirming the sale deed executed by General Power of Attorney Holder Sri A. Jayarama Reddy in respect of site Nos.1 and 2 in Survey No.119 of Horamavu Village. After the death of Sri B. V. Ramaswamy Reddy, the plaintiffs have 12 confirmed the sale deed. She contends that the plaintiffs were fully aware of the sale deeds in question. In order to extract more money from the defendants, the present suit is filed.

10. Both defendant Nos.8 and 11 filed their additional written statement subsequent to amendment of paras 15-A and 15-B of the plaint, reiterating the contentions taken in the earlier written statement. It is also the case of defendant No.11 that out of 43 sites, the General Power of Attorney Holder Sri A. Jayarama Reddy had sold 17 sites by way of irrevocable General Power of Attorney executed in his favour. The plaintiffs being the parties as witness to the subsequent sale deeds are estopped from pleading ignorance regarding sale deeds. The plaintiffs have caused damages to the property of defendant No.11 and they are disturbing the possession. Hence, defendant No.11 filed O.S.No.7498/1992. Urging these grounds, defendant No.11 prayed for the dismissal of the suit.

11. Based on the pleadings, the Court below framed the following issues and additional issues:

1. Whether the plaintiffs prove that the A suit property belonged to the joint family of late B. V. Ramaswamy 13 Reddy and B.V. Krishna Reddy and presently belonged to them (plaintiffs)?.

2. Whether the defendants prove that the A suit property was a self acquired of late Ramaswamy Reddy?.

3. Whether the plaintiffs prove that the sales of portion of A suit property to defendants 1 to 3 by late Ramaswamy Reddy and his power of attorney holders are not binding on them?.

4. Whether the valuation of the suit property and the court fee paid are not sufficient?.

5. Whether the plaintiffs are entitled to vacant possession of the plaint B schedule comprised of site No.1, 2, 6, 13, 14, 15 and 17 formed in Sy.No.119 of Horamavu Village?.

6. Whether the suit as filed against all the defendants legally cannot sustain being bad for mis joinder of cause of action and separate suit ought to have been filed against each defendant?.

7. What order or decree?. Additional issues:

1. Whether this suit is bad for non joinder of necessary parties?. 14 2. Whether the suit is filed in time?.

12. The plaintiff in O.S.No.7498/1992 filed the suit seeking the relief of perpetual injunction in respect of site No.12, which is morefully described in the plaint. The plaintiff contended that she had purchased the suit property on 15.6.1988 through sale deed executed by the General Power of Attorney of Sri B. V. Ramaswamy Reddy. It is contended that Sri B. V. Ramaswamy Reddy got the land converted into non-agricultural purpose in the year 1972. Sri B. V. Ramaswamy Reddy was a tenant under one Sri P.C. Rajarathnam and he has filed a petition before the Land Tribunal in L.R.C.No.1046/67. During the pendency of the said case, the sale deed was executed by the said Sri P.C. Rajarathnam in favour of Sri B. V. Ramaswamy Reddy on 15.9.1971 and the same is self-acquired property of Sri B. V. Ramaswamy Reddy. Therefore, the defendants have no manner of right, title and interest over the suit schedule property. It is also contended that the plaintiff has invested huge amount for the construction of building over the suit schedule property. But the defendants have damaged the suit schedule property. Hence, the plaintiff has lodged a complaint to the police. Though the plaintiff had filed a complaint to the police, the police did not 15 take any action. Hence, the plaintiff filed the suit without any alternative.

13. On service of suit summons, the defendants (plaintiffs in O.S.No.1611/1994) filed separate written statement and additional written statement denying the plaint averments. Defendant No.3 contended that he had put up the compound wall to the suit schedule property and has reiterated the averments made in O.S.No.1611/1994 claiming that the family consisted of joint family and there was no partition among the co-parceners and the said Sri B. V. Ramaswamy Reddy was the kartha of the family and he was not the absolute owner. After the death of Sri B. V. Ramaswamy Reddy and Sri B. V. Krishna Reddy, the defendants have succeeded to the property of their respective father. It was also contended that in the revenue records the names of the defendants are appearing till today. The defendants are in possession of the suit schedule property. Based on the pleadings of the plaintiff and the defendants, the Court below framed the following issues: Whether the plaintiff proves that Syed Abdul Sattar, Abdul Khudus and A. Jayarama Reddy were the GPA Holders of B.V. Ramaswamy Reddy?.

1. 16 Whether the plaintiff purchased the suit schedule property from the said B.V. Ramaswamy Reddy and it was his self acquired property?. Whether the plaintiff was in possession and enjoyment of the suit property on the date of the suit?. Whether no house is built on the suit schedule property as contended by the defendants?. Whether Sy.No.119 was the joint family property of B.V. Ramaswamy Reddy and B.V. Krishna Reddy?. Whether the plaintiff is entitled to permanent injunction?. What order?. 2.

3.

4.

5.

6.

7.

14. Both the matters were clubbed and common evidence was recorded. The plaintiffs in O.S.No.1611/1994 examined P.Ws.1 and 2 and relied upon the documents at Exs.P.1 to 58. The defendants in O.S.No.1611/1994 examined the evidence of D.Ws.1 to 6 and relied upon the documents at Exs.D.1 to 147. Apart from that, Court Commissioner has been examined as C.W.1 and 8 documents have been marked as per Exs.C.1 to 8 through the Commissioner. 17 15. The Court below, after recording the evidence of respective parties and considering the documentary evidence, answered issue No.1 in O.S.No.1611/1994 in the negative coming to the conclusion that the plaintiffs have failed to prove that A suit schedule property belonged to the joint family of Sri B. V. Ramaswamy Reddy and Sri B. V. Krishna Reddy and presently the land belongs to the plaintiffs. The Court below answered issue No.2 in the affirmative coming to the conclusion that A suit schedule property was self-acquired property of Sri B. V. Ramaswamy Reddy. The Court below answered issued No.3 in the negative coming to the conclusion that the plaintiffs have not proved that the sale deed executed by Sri B. V. Ramaswamy Reddy and his Power of Attorney Holder are not binding on them. The Court below answered issue No.4 as affirmative that proper court fee has been paid. The Court below answered issue No.5 in the negative that the plaintiffs are not entitled for possession of B schedule property i.e., site Nos.1 and 2 which belongs to defendant No.8. The Court below answered issue No.6 in the negative that the suit is not bad for min-joinder of cause of action. The Court below answered additional issue No.1 as affirmative that suit is bad for non-joinder of necessary 18 parties. The Court below answered additional issue No.2 as negative that suit is not filed in time.

16. In O.S.No.7498/1992, the Court below answered issue Nos.1 to 3 as affirmative coming to the conclusion that the plaintiff has proved the Power of Attorney was executed and plaintiff has purchased the suit schedule property from Sri B. V. Ramaswamy Reddy and it was his self-acquired property. It also came to the conclusion that the plaintiff was in possession and enjoyment of the suit schedule property on the date of the suit. The Court below answered issue No.4 in the negative that no house is built on the suit schedule property as contended by the defendants. The Court below answered issue No.5 in the negative that Survey No.119 was not the joint family property of Sri B. V. Ramaswamy Reddy and Sri B. V. Krishna Reddy. The Court below answered issue No.6 as affirmative in coming to the conclusion that the plaintiff is entitled for permanent injunction.

17. The Court below having considered the material on record, dismissed the suit in O.S.No.1611/1994 and decreed the suit in O.S.No.7498/1992. Hence, the two appeals are filed before this Court. 19 18. The learned counsel for the appellants in R.F.A.No.116/2013, which is against the dismissal of suit in O.S.No.1611/1994, in the appeal memorandum contends that the Court below has committed an error in not properly considering both oral and documentary evidence. It is contended that the Court below has grossly erred in not noticing the fact that the plaint schedule properties which are formed in Survey No.119 of Horamavu Village, by a process of successive alienation has reverted back to the joint family which the plaintiffs had been able to establish by producing a number of documents such as Ex.P.2 - registered partition deed dated 31.8.1931, which shows that the properties amongst others including Survey No.119 of Horamavu Village was the joint family property of late Venkataswamappa (Venkataswamy Reddy) who is the grandfather of the plaintiffs. Ex.P.3 is a registered sale deed dated 4.5.1943 executed by Sri B. V. Ramaswamy Reddy S/o late Venkataswamy Reddy in favour of Hanumappa Reddy. Ex.P.4 is a registered sale deed dated 27.10.1948 executed by D. Venkatapareddy in favour of Devidappa. Ex.P.5 is a registered sale deed dated 11.8.1955 executed by Devejappa in favour of Sri Rajarathnam. Ex.P.6 is a 20 registered sale deed dated 8.9.1971 executed by Sri B. V. Ramaswamy Reddy in favour of Muninanjamma to raise the necessary finances for purchasing the property measuring 2 acres 29 guntas in Survey No.119 of Horamavu Village. Ex.P.7 is a registered sale deed dated 15.9.1971 executed by Sri Rajarathnam in favour of Sri B. V. Ramaswamy Reddy father of the plaintiffs who is the eldest member of the joint family and stood as the kartha of the joint family.

19. It is contended that the learned Trial Judge has completely lost sight of the documents Exs.P.2 to 7, which clearly show that the property of the joint family by successive alienations has reverted back to the joint family and therefore the finding that the plaint schedule properties are the self- acquired properties of Sri B. V. Ramaswamy Reddy is absolutely fallacious and without the application of mind. The Court below has grossly erred in not taking into consideration in a realistic manner and in so doing has failed to note that under Ex.P.6 dated 8.9.1971 Sri B. V. Ramaswamy Reddy had sold 2 items of joint family properties namely Sy.Nos.26 and 27 measuring 2 acres 7 guntas to purchase the property bearing Sy.No.119, which is the plaint schedule property. Ex.P.6 clearly establishes 21 that late B. V. Ramaswamy Reddy had purchased the plaint schedule property in Sy.No.119 from out of the joint family nucleus and the sale deed Ex.P.6 clearly establishes that the sale proceeds from out of the said transaction were essentially required for the purchase of land in Sy.No.119.

20. The Court below has grossly erred that right from the year 1943 till 15.9.1971 i.e., Ex.P.7, the property used to be sold to different persons under nominal sale deeds which ultimately reverted back to the joint family and therefore the contention of the plaintiffs that the successive sale deeds are in the nature of nominal sale deeds had to be necessarily accepted by the learned Trial Judge, but failed to consider the same. The learned Trial Judge has failed to take into consideration, 9 RTC copies which are marked as Exs.P.9 to 17 and the endorsement issued by the Tahsildar dated 11.2.1994, which is marked as Ex.P.18 showing that the plaint schedule property is not a converted land. Similarly, Ex.P.19 dated 14.2.1994 issued by the Deputy Commissioner stating that there are absolutely no documents showing the conversion of the land in Sy.No.119. These two documents, namely Exs.P.19 and 20 carry a presumption under Section 114 of the Indian Evidence Act and 22 unless they are rebutted, the same will have to be accepted as true and genuine.

21. The Court below has doubted the transaction under Ex.P.20, namely mortgage deed executed by Sri B. V. Ramaswamy Reddy, Sri B. V. Krishna Reddy and Sri R. Venkataswamy Reddy, plaintiff No.1 herein in favour of the Primary Co-operative Land Development Bank for raising the necessary funds for the purposes of carrying agricultural purposes and hence the finding to that effect is absolutely erroneous. The Trial Judge has filed to take into consideration that Exs.P.21 to 24 which are the awards passed in LAC No.217/1986 which shows that the members of the joint family of late B. V. Ramaswamy Reddy were together pursuing the land acquisition proceedings as members of the joint family.

22. The Court below has not taken into consideration and has misread the other documents, namely Exs.P.25 and 26 showing the market value of the property. Ex.P.27 is the endorsement issued by the Tahsildar and Exs.P.28 to 31 are the tax paid receipts in respect of the plaint schedule properties which have not been taken into consideration. Likewise, Exs.P.32 to 36 referred to as the records of the joint family lands and 23 Exs.P.50 to 53 are the photographs which have not been taken into consideration by the learned Trial Judge.

23. The learned Trial Judge has failed to take into consideration the fact that the members of the joint family had total and effective control over the lands by exercising their rights such as mortgaging the property to the Primary Co- operative Land Development Bank. The Court below has failed to take into consideration the fact that Sri B. V. Ramaswamy Reddy was in the nature of a trustee holding the properties for the benefit of the members of the HUF and Ex.P.7 dated 15.9.1971 marks an important period and development showing the joint family property reverting back to the joint family.

24. The Court below has failed to take into consideration the fact that the lands in Survey No.119 which is a HUF property had not been converted for non-agricultural residential purposes. However, Sri B. V. Ramaswamy Reddy had formed the sites and distributed amongst the members of the joint family by bringing about equitable settlement or partition of the lands. However, there was absolutely no legal or family necessity for the purpose of selling the sites. The learned Trial Judge has not properly 24 appreciated the evidence let in by the plaintiffs both oral and documentary evidence and misread the evidence and did not apply its mind with regard to the admissions and the suggestions made during the course of trial. Defendant No.8 admits in the course of cross-examination that the plaint schedule properties are joint family properties while referring to Ex.P.7. During the course of cross-examination of the plaintiff it was suggested to the effect the plaint schedule property was purchased by late Venkataswamy Reddy, who is the grandfather of the plaintiffs.

25. The Trial Judge has failed to take into consideration Exs.D.2 and 3 which the plaintiffs have denied having executed the documents. On this aspect of the matter, the Commissioner namely the handwriting expert has been examined as court witness C.W.1. The discrepancies in Exs.D.2 and 3 are so pronounced that the report of the Commissioner cannot be accepted to come to the conclusion that Exs.D.2 and 3 are genuine documents. The report of the Commissioner had to be rejected since the report is a split report and the Commissioner had not said anything about the signature of plaintiff No.3. Even otherwise, the report of the Commissioner is not conclusive and 25 the Court had to accept or reject the same on the basis of admitted and proved facts.

26. The Court below failed to note that plaintiffs have proved issue No.1 and erroneously answered the same in negative. The learned Trial Judge has failed to apply the plethora of decision cited before the Court and mainly gave the findings on the basis of Ex.D.19. On perusal of Ex.D.19, it becomes manifestly clear that the GPA holders had played a fraud on the family of Sri B. V. Ramaswamy Reddy. Ex.D.19, Power of Attorney is a fraudulent document dealing with the property in a most uncharitable manner without having any right. The said document is not a Power of Attorney coupled with interest and D.W.1 has not signed as a consenting witness to Ex.D.23 to show that there was ban on the registration of a revenue sites. The other contention regarding the sale deed in favour of defendant No.8 is that the said sale deed has come into existence after the demise of Sri B. V. Ramaswamy Reddy and hence the said document is an illegal document and defendant No.8 does not derive any title in respect of the sites 1 and 2. 26 27. The defendant No.11 has also filed a separate written statement claiming that there is no cause of action for the suit and suit is barred by limitation. Late B.V. Ramaswamy Reddy was not the kartha of the joint family as there was no joint family as such existing and that the defendant No.11 has purchased the site No.12 measuring 60 x 84 feet in Sy.No.119 under registered sale deed dated 14.06.1988.

28. The learned counsel for the appellants in R.F.A.No.116/2013 in the grounds of memorandum of appeal would contend that the Court below failed to appreciate both oral and documentary evidence available on record, insofar as the claim of defendant No.11. The trial Judge, in para No.33 of the judgment refers to the documents produced by the defendant No.11 and comes to a conclusion that all the documents are perfectly in order without giving any finding regarding the nature of the documents. The important question that has to be taken into consideration is whether Exs.D19 and D20 are legally enforceable documents and in the absence of which, the sale deeds in favour of defendant Nos.8 and 11 are all illegal. Though the learned trial Judge has rightly come to the conclusion that in Ex.D19, no witnesses have signed, Ex.D21 is 27 not a registered document and the receipt of Rs.2 Lakhs has not been recorded in Exs.D19, D20 and D21. With the said admissions, the learned Judge could not have accepted the contention of the defendant No.11 that she has become the absolute owner of the property. In view of the same, the findings of the learned Judge in para Nos.36 and 37 regarding the legality of Ex.D19 is absolutely illegal.

29. He further contends that the learned Judges application of the principle of Estoppel under Section 115 is absolutely incorrect and comes to a wrong conclusion that the plaintiffs have agreed and accepted the sale deeds in favour of other defendants and therefore, they are estopped from contending that the sale deeds in favour of defendant Nos.8 and 11 are not legal. The learned Trial Judges reasoning that during the pendency of the suit, a registered partition deed has taken place on 23.09.1999 and therefore, the plaintiffs cannot seek for declaration without seeking for partition is absolutely fallacious, as in the registered partition deed dated 23.09.1999, the plaint schedule property and two other properties namely, Sy.Nos.340 and 341 have not been included, as the suit for the relief of 28 declaration was pending and the learned Judge has not properly read the registered partition deed dated 23.09.1999.

30. It is his further contention that the learned Judge has also failed to take into consideration the fact that under Ex.P20, all the members of the joint family have mortgaged the property to Primary Co-operative land Development Bank and the said document is in the nature of a simple mortgage and the same has been misread by the learned Judge. The learned Judges reasoning that the property purchased under Ex.P7 is self-acquired property of B.V. Ramaswamy Reddy is wholly incorrect and the documents, Exs.D66 and D67 are all the created documents, since the plaintiffs have been able to establish the fact that the lands have not been converted for non-agricultural residential purposes. The other findings of the Trial Court that B.V. Ramaswamy Reddy received Rs.2 Lakhs consideration from the G.P.A. holder is absolutely without any substance and not based on legal evidence. The Court below, in para No.53 of the judgment accepts the declaration and the affidavit under Exs.D2 and D3 stated to have been executed by the plaintiffs without properly appreciating the fact that the 29 reason given by the Hand Writing Expert is hopelessly incorrect. The learned Judge while accepting the contention of the plaintiffs that the report of the Commissioner was to be rejected, taken a different view stating that that the Court under Section 73 of the Indian Evidence Act could compare the signatures and upon comparison of the signatures, the said signatures are intact and tally with each other.

31. He further contends that the learned trial Judges reasoning in para No.55 of the judgment that defendant No.8 has constructed a building is absolutely incorrect, as during the pendency of the suit, he had obtained permission to plaster the house. But, inspite of the order of status-quo, has entered into possession of the property illegally which is absolutely reprehensible. He also contends that the defendant No.11 has not become the absolute owner of the site No.12 since the suit for the relief of permanent injunction in O.S.No.7498/1992 was not maintainable, as the plaintiffs have questioned the legality and correctness of the sale deed executed in favour of defendant No.11 and therefore, granting a decree in his favour is wholly illegal. The learned City Civil Judge has failed to notice that respondent No.1 himself has admitted during the course of 30 cross-examination that the said property is the ancestral property of the plaintiffs it is also mentioned in the registered sale deed dated 15.09.1971 which is marked as Ex.P7 that the said property is ancestral property and the same was not considered by the Trial Court. The learned Judge has failed to notice that the alleged irrevocable G.P.A. said to have been executed by late B.V. Ramaswamy Reddy was not signed by late B.V. Krishna Reddy and the Court below has not considered the documents on record and falsely held that irrevocable G.P.A. was also executed by late B.V. Krishna Reddy along with B.V. Ramaswamy Reddy without any basis and without any documents on record. Hence, prayed this Court to set aside the judgment and decree passed in O.S.No.1611/1994.

32. The appellants in R.F.A.No.1135/2013 which has been filed to set aside the judgment and decree passed in O.S.No.7498/1992 has raised similar grounds as raised in R.F.A.No.116/2013. It is contended that the learned trial Judge has lost sight of the documents Ex.P2 to P7 which clearly shows that the property of the joint family by successive alienations has reverted back to the joint family and therefore, the finding that the plaint schedule properties are the self-acquired 31 properties of B.V. Ramaswamy Reddy is absolutely fallacious and without application of mind. The judgment and decree passed by the learned Trial Judge is erroneous and contrary to law and hence, the judgment and decree passed in O.S.No.7498/1992 is liable to be set aside.

33. The learned counsel appearing for the appellants in both the appeals, reiterating the grounds urged in the memorandum of both the appeals would contend that the Court below has erroneously relied upon the documents Exs.D19 and D20 and those documents are illegal documents and its doubtful authenticity has not been properly appreciated. D.W.1 has categorically admitted the fact that there was no partition and also states that the interest must be created in the document itself and the same has not been done. The Court below erroneously relied upon the documents, Exs.D66 and D67 which are doubtful documents. The Court below also erroneously accepted the documents Exs.D21 and D22. The Court below did not consider Exs.P2 to P7 and the document Ex.P2 is the partition deed. The Court below failed to take note of the fact that the suit schedule properties are the joint family which has 32 been sold and subsequently reverted back and committed an error in dismissing the suit. It is contended that defendant Nos.8 and 11, who have purchased the sites from B.V. Ramaswamy Reddy are not the self-acquired property of said B.V. Ramaswamy Reddy. The property bearing Sy.No.11
is the joint family property. The property which has been purchased in terms of Ex.P7 by B.V. Ramaswamy Reddy is nothing but repurchasing of the property as kartha of the joint family and he was not having any independent income to purchase the property. The Court below fails to take note of Ex.P2 as well as Ex.P20, mortgage deed which was created in favour of the bank in respect of Sy.No.119/2. The Court below also failed to take note of LAC cases filed by the parties in terms of Exs.P21 to P24.

34. The learned counsel further contends that Ex.P8 is in respect of the registered partition deed and Sy.No.119 was excluded since the suit and other acquisition proceedings were pending before the Court. The plaintiffs have also produced the documents with regard to LAC appeals which is marked as Ex.P56. The said document and also LAC appeals in 217/1986, 33 157/1987 and 150/1987 clearly shows that Sy.No.11
is the Hindu Undivided Family property. The power of attorney has not been attested by any witness and no amount is mentioned in the documents Exs.D2 to D4 and the same are doubtful documents. He further reiterates that the Commissioner report is not against appellant No.3. The appellant No.3 has not signed the said document and also signature does not tally, however, the Commissioner has given the report signature style is different.

35. The Court below committed an error in decreeing the suit based on Ex.D19 and granted the relief of declaration erroneously and hence, it requires interference of this Court. It is also contended that B.V. Krishna Reddy has not signed Ex.P9, but the Court below while passing the order, a reference was made that the said B.V. Krishna Reddy has also signed the said G.P.A. and the same is apparent on record. Ex.D19 is filled with blanks and there were no attestation in respect of filling of the blanks. Except Sy.No.119/2, other properties in Sy.Nos.340 and 341 are partitioned. It is also contended that general power of attorneys are revoked in terms of Exs.P54, P55 and P56 and the 34 said B.V. Ramaswamy Reddy died on 06.09.1998 and the sale deed was executed in the year 1999 by G.P.A. holder.

36. The learned counsel in R.F.A.No.1135/2013 in support of his argument would contend that Ex.P2 clearly discloses that in terms of partition deed of the year 1931, the property has fallen to the share of grand-father of the appellants. Exs.P3 to P5, sale deeds shows that the property was sold to several persons. Ex.P6 clearly discloses that it was a conditional sale deed and Ex.P7, sale deed dated 15.09.1971 shows that the property was purchased by the kartha of the joint family. In terms of Ex.P8, partition deed at page No.10, the suit schedule properties have been excluded. Exs.P9 to P17 are the RTCs and Ex.P18 clearly discloses that the land has not been converted and an endorsement was issued. Ex.P19 is the notice and Ex.P20 is the mortgage deed executed by both B.V. Ramaswamy Reddy and B.V. Krishna Reddy.

37. He would further contend that the Court below fails to take note of Exs.P22 to P24, the LAC orders in respect of the very same survey number. The legal notice was issued in terms of Ex.P54 revoking the G.P.A. of appellant No.1 by appellant 35 No.3. Ex.P56 clearly establishes that except the suit schedule properties, other properties were partitioned. The appellant No.3 has not signed the sale deeds executed in favour of respondent Nos.1 to 3. He further submits that though the appellants have not signed the declaration and affidavit, the Trial Court has erroneously dismissed the suit and the findings given by the Trial Court is against the material, in spite of the fact that the appellants have proved that the suit schedule properties are the joint family properties.

38. The learned counsel appearing for the respondents in his argument vehemently contends that suit in O.S.No.1611/1994 is filed seeking the relief of declaration. It is evident from the records that plaintiff Nos.1 and 2 are the sons of B.V. Ramaswamy Reddy. Plaintiff No.3 is the son of B.V. Krishna Reddy. It is admitted that there are seven daughters and two sons to B.V. Ramaswamy Reddy and one son and six daughters to B.V. Krishna Reddy. The schedule A property is measuring 2 acres, 29 guntas and the same was purchased under Ex.P7 by B.V. Ramaswamy Reddy. The site Nos.1 and 2 is owned by defendant No.8 and site No.12 is owned by defendant No.11. The relief sought in the suit is only that the sale deeds 36 are not binding and not sought for any relief of partition and cancellation of the sale deed. Hence, the suit itself is not maintainable and the same is hit by Section 34 of Specific Relief Act. The suit schedule properties are not Hindu Undivided Family properties and the same was purchased by B.V. Ramaswamy Reddy and thereafter, he converted the property which is evident from Ex.P18 and in terms of Exs.P66 and P67, the property was converted in the year 1972 itself. B.V. Ramaswamy Reddy has passed away on 06.09.1988 and one sale deed was executed on 14.06.1988 and another sale deed was executed on 18.01.1989. Therefore, the plaintiffs without seeking the relief of possession cannot maintain the suit against defendant No.11. It is admitted that defendant No.8 has already been in possession and limitation arises which is for a period of 12 years and hence, the suit is barred by limitation. Without seeking the relief of possession as against the defendant No.11, the plaintiffs cannot maintain the suit. It is also contended that the property which has been purchased by B.V. Ramaswamy Reddy in the year 1971 has been excluded while entering into the partition which clearly discloses that it is not the Hindu Undivided Family property. It is further contended by the 37 learned counsel that B.V. Ramaswamy Reddy himself has sold 17 sites and he himself executed irrevocable power of attorney in in favour of Jayarama Reddy. Apart from that, he also executed declaration and affidavit and the first plaintiff has sold the property, as if he is the absolute owner of the property. The modus-operandi is to extract money from the defendants.

39. The learned counsel for the respondents would further contend that Ex.P61 is the sale deed executed by G.P.A. holder and B.V. Ramaswamy Reddy himself is the witness to the said document. The plaintiffs have not approached the Court with clean hands and hence, no equity can be extended in favour of the plaintiffs. It is also contended that other sale deeds are not questioned and they have questioned some of the sale deeds in a pick and choose manner. The defendant No.11 also filed the suit, after purchase of the property and the said suit is also decreed. The present suit is filed after six years and the same is barred by limitation. The plaintiffs have not placed any material except self-served statement and the power of attorney executed by B.V. Ramaswamy Reddy in favour of power of attorney holder Jayarama Reddy is an irrevocable power of attorney. The plaintiffs have relied upon the document of 38 partition deed and the parties therein are not relatives of B.V. Ramaswamy Reddy, or his children. Ex.P4 is the sale deed dated 27.10.1948 which is in respect of family properties.

40. It is contended that the grand father has sold the property in favour of Daveedappa and Daveedappa in turn sold the property in favour of Rajarathnam in terms of Ex.P5, sale deed dated 12.08.1955. Hence, it is clear that property is not belonged to family of plaintiffs and B.V. Ramaswamy Reddy has purchased the property on 15.09.1971 in terms of Ex.P7. It is also contended that Ex.P6, sale deed dated 08.09.1971 is in favour of Muninanjamma and B.V. Krishna Reddy is also witness to the said document and he is not a vendor. Exs.P2 to P6 does not co-relate to each other. Ex.P7 discloses that B.V. Ramaswamy Reddy was a tenant and he was not the owner. Hence, it cannot be contended that the property is a joint family property and since, he was a tenant, he had purchased the property in terms of Ex.P7. It is contended that Ex.P8 is the partition deed which was created after filing of the suit in the year 1999 by Advocate which does not include the daughters and son of B.V. Ramaswamy Reddy and hence, no sanctity can be attached to the document, Ex.P8. Ex.P18 is the endorsement 39 to the effect that the property was converted and in terms of Ex.P19, notice was given to Rathnamma. Ex.P20 is the mortgage deed and Exs.P25 and P26 are the sale deeds in favour of defendant Nos.11 and 8 respectively. The plaintiffs, who have relied upon Ex.P54 is an impleading order and the same is not helpful to the plaintiffs. The plaintiffs are aware of the sale deed executed by B.V. Ramaswamy Reddy and so also execution of the sale deed by power of attorney holder. The plaintiff No.1 executed the sale deed in respect of site No.42-A in favour of Gurupreeth Singh Bali, who is the son of defendant No.8 in terms of Ex.D1 in the year 1991 and plaintiff No.2 is the witness to the said document. Ex.D2 is the affidavit executed by all the plaintiffs and though they have denied the signatures, report of the Commissioner is obtained wherein it is pointed that the signatures are one and the same but the signature available in Ex.D3 is in different style and that does not mean that those signatures are not belonged to the plaintiffs.

41. Ex.P25, sale deed dated 18.01.1989 is admitted and cannot question the same. Ex.D4 is clear that B.V. Ramaswamy Reddy had formed the layout. Ex.D5 is the photograph in respect of defendant No.8 and Ex.D15 is the sale deed executed 40 by first plaintiff in favour of Vimalamma in respect of site No.7 and while executing the said document, the first plaintiff has described in the sale deed that he is the absolute owner of the property which is evident from Ex.D15. B.V. Ramaswamy Reddy himself has executed the sale deed in favour of Krishna Kumar and in the said sale deed, it is described that he is the absolute owner of the property. One Jayarama Reddy is the witness to the said document and the same has not been questioned and the sale deeds which are also executed by Jayarama Reddy is not questioned. Ex.D19 is the irrevocable power of attorney summoned from the wife of the power of attorney holder. The witness has not signed the document is not fatal to the case and the same is a full-fledged irrevocable power of attorney coupled with interest. It is contended that Section 202 of Contract Act comes to the aid of the defendants. Exs.D20 and D21 are the declarations executed by B.V. Ramaswamy Reddy and Abdul Sattar, Adbul Shukur and Jayarama Reddy respectively that they have received the entire amount. Ex.D23 is the sale deed and B.V. Ramaswamy Reddy has signed the said document. Signature in Ex.D23 and Ex.P19 are one and the same. Ex.D25 is the sale deed executed by R. Venkataswamy Reddy, who is 41 the first plaintiff and in spite of the temporary injunction, he sold the same. Hence, the Court has to take note of the conduct since, he has specifically mentioned in the sale deed that he is the absolute owner of the property. Ex.D25 is the sale deed dated 16.02.1999 which was executed in favour of A.R. Sridhar, who was defendant No.7 and the case was withdrawn against him. After the death of the father, the power of attorney holder sold the property in the year 1989. Ex.D26 is the sale deed dated 27.02.1999 executed by R. Venkataswamy Reddy in respect of site No.28 and while executing Ex.D27, sale deed dated 29.06.1997, it is mentioned that he himself is the absolute owner of the property. B.V. Ramaswamy Reddy had sold the property in favour of Bavina Mohan Ram in respect of site Nos.23, 26 and 27 and the witness is the power of attorney holder and later on, not questioned these sale deeds. Ex.D28 is in respect of the same site sold to the sister and brother-in-law of the first plaintiff during the pendency of the suit and the same is also not questioned. Ex.D29 is the sale deed in favour of Dwarakanath by general power of attorney holder after the death of his father on 16.02.1989 and the same is also admitted in the cross-examination. Ex.D30, sale deed is also not 42 questioned. The second plaintiff challenged the sale deed executed by the first plaintiff which is evident in terms of Ex.D31. Ex.D32 discloses that I.A.No.II filed under Order 39, Rules 1 and 2 was rejected. Ex.D33 is a memo which discloses that the same was withdrawn. Ex.D34 is the order sheet in respect of O.S.No.5161/2004. Ex.D35 is the certified copy of plaint in respect of the suit filed by plaintiff No.3 and the plaintiff Nos.1 and 2 are arrayed as defendant Nos.4 and 5 and the same was also withdrawn later.

42. Ex.D36 is the sanctioned plan obtained by defendant No.8. Ex.D38 is the compact disk. Ex.D61 is the sale deed dated 10.12.1987 executed by power of attorney holder in favour of Vijayalakshmi and the same was also not questioned. Ex.D62 is the sale deed dated 29.10.1987 executed by Venkataswamy Reddy in favour of Omprakash Sharma in respect of site No.19 and the witnesses to the said sale deed are brothers i.e., Babu Reddy and Srinivasmurthy. Ex.D63 is sale deed dated 09.09.1989 executed by plaintiffs in favour of Swaroop Kumar and so also, Ex.D64 is sale deed dated 19.05.1994 executed by plaintiff No.1 in respect of site No.2. Exs.D66, D67, D68, D69, D70 and 71 are conversion certificate, 43 demand register extract, layout plan, special power of attorney and two general power of attorney respectively. The plaintiffs have filed several suits and withdrew the same against other purchasers after having received the money from them. The documents Exs.D19 to D21 and D23 are executed by B.V. Ramaswamy Reddy and also signatory to the said documents. The original sale deed of B.V. Ramaswamy Reddy is not produced. The signatures in Exs.P19 to 21 can be compared under Section 73 of the Evidence Act. The plaintiffs have not sought for the relief of possession against the defendant No.11. It is contended that power of attorney is coupled with interest and hence, the power of attorney cannot die with a person.

43. The learned counsel for the respondents in support of his contention relied upon the judgment reported in I.L.R. 1993 KAR2306in the case of Mohammed @ Podiya vs- Assistant Commissioner. The counsel referring this judgment would contend that Court has to examine the power of attorney and its features where all rights and liabilities made out, power : agency coupled with interest - where authority irrevocable, but security with proprietary interests or part of security conferring powers towards performance of obligations to put up 44 constructions or lease property, power of attorney one assigning rights is an authority whereby one is authorized to act for another. Power of attorney is ordinarily construed strictly and general powers are interpreted in the light of the special powers, all though they may include incidental powers necessary for carrying out the authority granted. Where a general power is given followed by specific powers, the generality of powers will have to be read in the light of the specific powers granted. The counsel also brought to my notice paragraph No.4 and so also paragraph Nos.5 and 6 in this regard.

44. Learned counsel relying upon the judgment reported in I.L.R. 1994 KAR1740in the case of K.M.MUNIREDDY VS. B.K.LAKSHMAIAH, brought to my notice paragraph No.50 of the judgment and contended that to entitle oneself to the discretionary relief of declaration and injunction, one has to come with clean hands and ones conduct must be free from blame. But the events as have unfolded in the case show that the conduct of the plaintiff was not at all fair and he in association with his son, was out to harass the appellants and was somehow trying to deprive them of possession of their land. 45 The man with such conduct shall not be entitled to equitable and discretionary relief of declaration or injunction.

45. Learned counsel relying upon this judgment would further contend that the plaintiffs have not approached this Court with clean hands and they have adopted the method of enriching themselves by filing the suits against the one or the other purchasers and after extracting money from the purchasers, withdrawing the suits. Hence, the plaintiffs are not entitled for the relief of declaration.

46. Learned counsel relying upon the judgment reported in I.L.R. 1996 KAR1883in the case of MUNIYAPPA VS. RAMAIAH brought to my notice paragraph No.12 of the judgment, wherein it has been held that when once such alienation is made, the alienee is entitled to be in possession of the property and right of any other coparcener is to sue for partition and recover possession of his share in the joint family properties. The sale being only voidable unless it is avoided by an action, the alienee is entitled to continue in possession. The position may be different if one coparcener alienates his share alone, but once the alienation is made by the manager of the 46 property, it will be effective until it is properly avoided by the non-alienating coparcener by filing a Suit for partition.

47. Learned counsel also relied upon the judgment reported in AIR2007KAR. 91 in the case of ARALAPPA AND ETC., VS. JAGANNATH AND ORS. Referring to this judgment, he would contend that the partition is not transfer and the reason being, no conveyance is involved and in partition every one has antecedent title. Partition does not give title or create title. If the party to the partition has an antecedent title to the property, it only enables him to obtain what is his own in a definite and specific form. In a partition, no one transfers title which he possesses in favour of a person who does not possess a title. Every one has an antecedent title. Therefore, no conveyance is involved, in the process as conferment of a new title is not necessary. It does not amount to transfer.

48. Learned counsel further relying upon the judgment reported in I.L.R. 2014 KAR4185in the case of S.V.NARAYANASWAMY VS. SMT.SAVITHRAMMA, would contend that the Power of Attorney is termed as the Power of Attorney coupled with interest and is regarded as property 47 disposition/transfer of property rather than as the conferring of general authorities on the attorney. If the Power of Attorney contains the clause, the same cannot revoke the GPA until such time that his attorney voluntarily seeks for such revocation. It is further observed that the GPA cannot be revoked until such time the appellant seeks for its revocation. The GPA authorizes the appellant to enter into agreement, to lease out the property, to attend to repairs and alteration, to pay tax and other charges after construction. The GPA cannot be revoked until such time the appellant voluntarily seeks for its revocation. Referring to this judgment, learned counsel further contended that the Power of Attorney is coupled with interest. Hence, the same cannot be revoked. However, the Court has to take note of the recitals of the documents, the Power of Attorney already executed and the sale deed but the same cannot be questioned.

49. Learned counsel appearing for the appellants i.e., appellant Nos.1 and 2 and appellant No.3 in their reply arguments, vehemently contended that the Ramaswamy was not having any independent source of income and the power of attorney is not coupled with interest. However, the admission was made in respect of Ex.D.19 that there was an interpolation 48 and no counter signature. The very contention of the respondents counsel that the appellants have estopped from contending that they have executed the sale deeds and signed those sale deeds cannot be accepted. The documents produced before the Court particularly Exs.P2 to 7 clearly disclose that it is a joint family property and successive sale deeds disclose that the property belongs to the family and it is only the nambike kraya. The documents produced from the year 1931 to 1999 shows that the property belongs to Hindu Undivided Family and is dealt as a joint family property. The defendants did not rebut the documents Exs.P18 and 19 and also Ex.P7, wherein the property is mentioned as the ancestral property.

50. Learned counsel appearing for appellant No.3 would contend that the Commissioner Report is not against plaintiff No.3. The power under Section 73 of the Indian Evidence Act was also exercised stating that there is no any report against appellant No.3. Learned counsel for appellant No.3 vehemently contended that Exs.P1 to 6 reveals that the property is a joint family property and the appellants are in joint possession. It is further contended that respondent No.2 has not paid the Court 49 fee. The plaintiffs/appellants are in possession of the property, which is vacant land. There is no admission as to they have not verified whether the property is a joint family property or not and without ascertaining the same, the property has been purchased. Ex.P2 a partition deed discloses that there was a partition among the family members and Ex.P5 clearly shows that there were successive alienations. Hence, contended that the Court below has committed an error in not answering issue No.1 as affirmative in coming to the conclusion that the property is a separate property of B.V.Ramaswamy Reddy.

51. In support of their contentions, they relied upon the judgment reported in AIR1999MADRAS383in the case of PACKIYAM AMMAL AND OTHERS VS. PATTU AMMAL AND OTHERS. Referring to this judgment, he would contend that there is no evidence before the Court that B.V.Ramaswamy Reddy had any source of income to purchase the property. He further contended that the above judgment is aptly applicable to the case on hand and when the kartha had no other source of income and acquired the suit property out of funds of the family, the presumption arises that said acquisition enures to the benefit 50 of family. Hence, the coparcenery property is liable to be partitioned.

52. Learned counsel also relied upon the judgment reported in AIR1959SC906(V46C127 in the case of MALLAPPA GIRIMALLAPPA BETGERI AND OTHERS VS. R.YELLAPPAGOUDA PATIL AND OTHERS. Referring to this judgment, he would contend that when there is no independent source of income, the presumption arises that new acquisition was joint family property.

53. Learned counsel also relied upon the judgment reported in AIR1970SC1354(V57C284 in the case of NOOKALA SETHARAMAIAH VS. KOTAIAH NAIDU AND OTHERS. Referring to this judgment, he would contend that no estoppel against the statute -Rules 28(1A) and 57(2) of the Mineral Concession Rules (1949) and being the statutory rules, they bind the Government as much as they bind others and the requirement of these rules cannot be waived by State Government. 51 54. Learned counsel also relied upon the judgment reported in AIR1988SC576in the case of SUNIL KUMAR AND ANOTHER VS. RAM PARKASH AND OTHERS. Referring to this judgment, he would contend that in case of alienation by kartha, the suit for permanent injunction against him by coparcener is not maintainable.

55. Learned counsel also relied upon the judgment reported in AIR1982SC120in the case of THE ALLAHABAD DISTRICT CO-OPERATIVE LTD., VS. HANUMAN DUTT TEWARI. Referring to this judgment, he would contend that estoppel deals with questions and not of rights. A man is no from asserting a right which holds that he will not assert. It is all known principle that there cannot be estoppel against a statute.

56. Learned counsel relying upon the judgment reported in AIR1968MADRAS50(V55C5 in the case of BOARD OF REVENUE, MADRAS, REFERRING AUTHORITY VS. ANNAMALAI AND CO. (PVT.) LTD., AND ANOTHER would contend that the parties have availed the loan by mortgaging the property in favour of the Bank and the same shows that it is a Hindu undivided joint family property. 52 57. Learned counsel relying upon the judgment reported in AIR1968MADRAS333(V55C79 in the case of MUTHARASU THEVAR VS. MAYANDI THEVAR AND OTHERS, would contend that Section 202 of the Contract Act states that an agency to be irrevocable should create in the agent an interest in the subject-matter contemporaneously with the document wherein such agency is created and it cannot be left to chance or guess or inference. Unless such a thing is available in the document itself, all such other powers given to the agent mainly for purpose of reimbursement of moneys spent by him for and on behalf of the principals, even if such reimbursement should be by way of mortgage or sale of the properties, would create only a right incidental to such agency and would not amount to the creation of any interest in the agent over the subject-matter of the litigation or the subject concerned.

58. Learned counsel relying upon the judgment reported in AIR2009SC2735in the case of RAMDAS VS. SITABAI & ORS would contend that where the purchaser had purchased only undivided share in the suit property he could not own and claim for more than the share of the vendor in the property nor 53 he could claim possession in respect of the entire property. He cannot claim relief on the ground of equity, as he himself is responsible for his act in purchasing undivided share in a part of the suit property without the knowledge and consent of the co- sharer.

59. Learned counsel also relying upon the judgment reported in AIR1989SC1834in the case of PROVASH CHANDRA DALUI AND ANOTHER VS. BISWANATH BANERJEE AND ANOTHER. Referring to this judgment, he would contend that in this judgment the Hon'ble Supreme Court has distinguished between the waiver and estoppel. The essential element of waiver is the intentional relinquishment of known right or such conduct as warrants aforesaid inference and in estoppel, intent is immaterial.

60. Learned counsel further relied upon the judgment reported in AIR1973SC814(V60C177 in the case of BANWARI LAL AND OTHERS VS. SUKHDARSHAN DAYAL. Referring to this judgment, he would contend that the estoppel does not create interest in property except as provided in Section 43 of the Transfer of Property Act, 1882. 54 61. Learned counsel also relied upon the judgment reported in AIR1975MADRAS316in the case of VENKATAMMAL VS. SINNA VENKATARAMA CHETTIAR AND OTHERS. Referring to this judgment, he would contend that when the sale is of an undivided interest of a coparcener in the whole of the joint family, the purchaser would be entitled to get the share that is allotted to his vendor in the general partition suit, though he would not be entitled to joint possession with the other coparceners and to claim mesne profits till a decree is passed in the partition suit.

62. Learned counsel referring to the above judgments would contend that the principles laid down in the said judgments are aptly applicable to the case on hand. Since the property is a joint family property, sale of the said property by one of the parties does not confer any right. These plaintiffs are having right in respect of the suit schedule property and their shares cannot be transferred and hence, the defendants- respondents cannot claim the equity. Accordingly, the judgment and decree of the Trial Court is liable to be set aside. 55 63. Having heard the arguments of the appellants/plaintiffs counsel and also the respondents counsel and so also keeping in view of the contentions urged by both the parties, the points that arise for consideration of this Court are :-

"1. Whether the Court below has committed an error in dismissing the suit of the plaintiffs in O.S.No.1611/1994 by answering issue No.1 in the negative and coming to the conclusion that A schedule property does not belong to the joint family of late B.V.Ramaswamy Reddy and B.V.Krishna Reddy?.

2. Whether the Court below has committed an error in decreeing the suit in O.S.No.7498/1992 holding that the plaintiffs have purchased the property from B.V.Ramaswamy Reddy, which was his self acquired property and they are in possession and enjoyment of the suit schedule property on the date of the suit?.

3. What order?.

64. Point Nos.1 and 2:-

"Having considered the grounds urged in both the appeals, the issues involved between the parties are similar in nature and the present two appeals are 56 filed against the dismissal of the suit in O.S.No.1611/1994 and granting the decree in favour of defendant No.11 in O.S.No.7498/1992. It is also important to note that though the suit was filed against number of defendants at the first instance, subsequently, the suit in O.S.No.1611/1994 was restricted against defendant No.8 and defendant No.11 only. Hence, this Court has to consider the material with regard to the claim of the plaintiffs in respect of defendant Nos.8 and 11.

65. Now this Court has to consider the evidence available on record both oral and documentary evidence in order to ascertain as to whether the property belongs to one B.V.Ramaswamy Reddy or it is a joint family property of the plaintiffs as contended in O.S.No.1611/1994. This Court has got the power of re-appreciating the matter in respect of both question of fact and question of law. Thus, the appeals being the statutory appeals, this Court has to independently discuss the evidence available on record. Hence, I would like to refer the evidence of the parties before considering the grounds urged in the appeal memorandum. 57 66. The plaintiff in O.S.No.1611/1994 has examined himself as P.W.1. In his affidavit, he has reiterated the averments made in the plaint contending that the suit schedule property belongs to the joint family and the sale deeds were executed on the basis of the power of attorney does not confer any right. It is further contended that the property is an agricultural property and the same was not converted for non- agricultural residential purpose.

67. To substantiate the same, plaintiff No.1 i.e., P.W.1 in his chief evidence relied upon the documents Exs.P1 to Ex.P53. He was subjected to cross-examination. In his cross- examination, he admits that he has got one brother and 7 sisters. His uncle Krishna Reddy has got 6 daughters and a son. His sisters and the daughters of his uncle Krishna Reddy are not the parties to the suit. It is elicited that his grandfather Venkataswamappa purchased the A schedule property from Dommalur-Hanumappa on 19.11.1945. He volunteers that it is a re-conveyance deed. He admits that they have no documents to show that it is a re-conveyance deed. He further admits that on 11.8.1955 Davidappa sold the suit schedule A property to 58 Sri.Rajarathnam. It is further elicited that his father is a witness to sale deeds in favour of Davidappa and Rajarathnam. He identifies his father signature on Ex.P4 as Ex.P4(a) and so also on Ex.P5(a). He also admits that the name of Rajarathnam was entered in the revenue records in respect of the A schedule property after his purchase. It is elicited that on 15.9.1971, Sri.Rajarathnam executed sale deed in favour of his father and the sold 4 items of property including Sy.No.119 measuring an extent of 2 acres 24 guntas for consideration of Rs.5,000/-. He further admits that in the sale deed, which is marked as Ex.P7, there is no mention of name of his uncle Krishna Reddy. He further admits that his father and his uncle Krishna Reddy on 8.9.1971 jointly sold Sy.No.26, measuring an extent of 1 acre 3 guntas and Sy.No.27 measuring 1 acre 2 guntas situated within the limits of Banaswadi Village to Smt.Muninanjamma. He further admits that A schedule property is not included in the partition deed. He further admits that total extent of Sy.No.119 of Horamavu Village is 5 acres 9 guntas. His father was the owner of 2 acres 29 guntas and out of the said land, 10 guntas of land was acquired for formation of ring road. He also admits that his father had formed the layout in rest of 2 acres 19 guntas 59 in total 42 sites. It is suggested that property was converted in the year 1972 itself and the same was denied. He states that he does not know whether his father had sold sites No.22, 23, 26 and 27 to Smt. Bhawina on 29.6.1987. However, he admits that the said Smt.Bhawina is not a party to the suit. He admits that in site No.22, Rajkumar has constructed the house and in site No.23, Somashekar has constructed the house. In site No.26, Smt.Lalitha has constructed the house and in site No.27, one Muslim person has constructed the house, but he does not remember his name. He admits that he sold site No.23 to one Somashekara and in the sale deed, he has mentioned that he is the absolute owner of the said site. So also he has sold the site No.38 in favour of one Shekar.

68. In his further cross-examination, he admits that after filing of the suit, he also sold some of the sites i.e., 7, 8, 9, 23 and 38. He also sold the site to one Smt.Vimalamma on 20.6.1990 and on the same day, he sold another site to Smt. Banumathi. He further admits that he sold site No.42-A to Gurupreeth Singh Bali. He is a son of defendant No.8. He admits that his brother Babu Reddy had filed O.S.No.563/2003 against 60 Vimalamma and he himself challenged the sale of site No.7 to Smt. Vimalamma and the said suit has been ended in compromise. He also admits that he himself, Babu Reddy and Srinivasa Murthy settled the disputes in respect of sites No.3, 4, 5, 6, 24 25, 27, 29, 30, 31, 32 and 41. He admits that for site No.18, Babu has filed one suit against him in Mayohall unit and except that suit no other suits are pending against him. He stated that `a Reddy claiming to be the power of attorney holder of his father had sold site No.18 to Babu.

69. It is elicited that his brother Babu Reddy and Srinivasa Murthy have entered into a declaration and that document is marked as Ex.D4. He also admits that Babu Reddy and Srinivasa Murthy might have also singed Ex.D.4. It is elicited that in this suit, he has contended that site Nos.1 and 2 have been sold to defendant No.8. Jayarama Reddy executed the sale deed in favour of defendant No.8 as a power of attorney holder of his father. But he claims that his father has not executed any power of attorney in favour of Jayaram Reddy. It is suggested that Babu Reddy and Jayaram Reddy are the attesting witnesses for Ex.D.1 and he says that he does not know the same. He 61 admits defendant No.8 has built the house in site Nos.1 and 2. He admits that they have produced certified copy of the sale deed which is executed in favour of defendant No.8, which is marked as Ex.P25. He admits that in Ex.P25, it is written that A.Jayarama Reddy is the power of attorney holder of his father. But he claims that he has not read the contents of Ex.P25 before producing the same before the Court, but after obtaining Ex.P25 also, he has not read the same. He admits that Jayarama Reddy sold site No.16 to Sri.Dwarakanath. Further, he admits that Jayarama Reddy sold site No.17 to Sri.Sridhar, who was the defendant in the suit and Dwarakanath was also the defendant in the suit, but later they got them deleted. He admits that he has signed the sale deed executed by Jayarama Reddy in favour of A.R.Sreedhar as an attesting witness, but he claims that the contents of the sale deed are not explained to him. He admits that Babu Reddy had filed the suit in O.S.No.563/2003 against Vimalammma, himself and others and later the same has been withdrawn. He further admits that he has sold sites No.7, 8 and 38 as the absolute owner of those sites. It is suggested that Sy.No.119 was the self acquired property of his father and the same was denied. Further, the suggestion was made that he 62 concocted the documents to make it appear that it is a joint family property and the same was denied. He admits that as per Exs.P21 to 24, Sy.No.119 of Horamaavu Village is not mentioned. He further admits that by taking money from defendant Nos.1 to 7, 10 and 12 to 14, he got them deleted from the case. He also admits that his father had sold seven sites, but he does not know how many sites Jayarama Reddy had sold as a power of attorney holder of his father. He admits that he has filed the suits against 2 persons who had purchased the sites from his father and those two persons are Sreedhar and another person. He also admits that he has filed the suit against 12 persons who have purchased the sites from Jayarama Reddy. He further admits that except the present defendants i.e., defendant Nos.8 and 11, he got deleted rest of the defendants from the suit.

70. In his cross-examination by defendant No.11, he admits that regarding loan transaction with Rajarathnam, he did not produce any documents except the sale deed executed in favour of Rajarathnam. He admits that his father had purchased the property under Ex.P7 from Rajarathnam for sale 63 consideration of Rs.5,500/-. He further admits that his father had taken the loan from PLAD Bank by mortgaging the property purchased under Ex.P7. He further admits that in Ex.P7, there is no mention about the purchaser of the property on behalf of the joint family. He further admits that in order to have partition under Ex.P8 they have not obtained the permission from the Court. He further admits that he is a witness to the sale deed executed by Jayarama Reddy and the said sale deed is executed in favour of Dwarakanath. He admits that he is a witness to the sale deed executed by Jayarama Reddy in favour of Sreedhar. He does not know about the sale deed in respect of site Nos.16 and 17 of Sy.No.119 of Horamaavu Village. He further admits that he signed on the said sale deed executed by the power of attorney holder in favour of Sreedhar and Dwarakanath as a consenting witness. He also admits that he has executed the sale deed in favour of Smt. Vimalamma Bhanumathi and while selling those properties, he has mentioned in the sale deed that he is the absolute owner of the property and he has not stated that it is his joint family property. He admits that he himself, Babu Reddy and Srinivasa Murthy appeared in O.S.No.7498/1992 filed by defendant No.11 and filed the written statement. But he 64 claims that his father has not executed the power of attorney in favour of Jayarama Reddy and others. Hence, they have not taken any action against them and also not issued any legal notice and so also not filed any criminal case against them. He further admits that in O.S.No.7498/1992, they have not made any counter claim to set aside the said sale deed. He also admits that through the power of attorney, he had sold 10 sites in respect of Sy.No.119 of Horamaavu Village. The suit schedule property is also carved out of Sy.No.119 of Horamavu Village. He admits that the proposed defendants came to his house and settled the matter and hence, he did not proceed against them as the same has been settled. He admits that he also compromised with defendant No.14 and he has received the market value from him. He further admits that he has filed the memo to dismiss the suit against defendant Nos.1, 2, 4, 5, 9, 10 and 14 as settled out of Court.

71. P.W.2 is the plaintiff No.3 in the suit. In his affidavit, he reiterated the averments of the plaint contending that he is the son of late B.V.Krishna Reddy, who is the brother of Ramaswamy Reddy and further contended that A schedule 65 property is the joint family property. B.V.Ramaswamy Reddy was the kartha of the Hindu Undivided Family. For the purpose of meeting family necessities, he used to borrow the funds and had offered the schedule A property as the security. However, instead of executing the mortgage deeds he had executed nominal sale deeds which are known as nambike kraya. However, possession of the properties was never transferred to any of the creditors. In the year 1971, the Hindu Undivided Family was able to improve the financial problems and became affluent, and Hindu Undivided family was in a position to repay the loans that had to be paid to Sri. V.C.Rajarathnam. Accordingly, Sri.B.V.Ramaswamy Reddy as the head of the joint family purchased the suit schedule property. P.W.2 also marked documents Exs.P54 to 58. He was subjected to cross- examination. In the cross-examination, he admits that he has no brother but got six sisters and all of the them are married. His father died in the year 1978, at that time, he was aged about 7 years. It is suggested that in the partition deed of the year 1931, there is no mention of Sy.No.119 of Horamaavu Village and the same was denied. He admits that Sy.No.119 of Horamaavu Village was allotted to the share of Chinnappas brother 66 Muniswamappa. He admits that in the sale deed dated 15.07.1971 executed by C.Rajarathnam in favour of B.V.Ramaswamy Reddy, sold 2 acres 29 guntas of land in Sy.No.119 of Horamaavu Village and there is no mention of 4 items of property, but he claims that it is a nominal sale deed. He does not know whether it is a nominal or not in respect of other three items of the property shown in the sale deed. He admits that B.V.Ramaswamy Reddy and B.V.Krishna Reddy have jointly sold the land comprised in Sy.Nos.26 and 27 of Doddabanaswadi to Muninanjamma. He does not remember whether in Ex.P7 the lands purchased are Sy.Nos.258/2, 257, 279 and Ramaswamy Reddy purchased Sy.No.119 along with three other lands. He also does not know whether Ramaswamy Reddy sold the above said three lands in the year 1978. He admits that in Ex.P8-partition deed there is no mention of Sy.No.119, but there is no mention of Sy.No.258/2, 257 and 279 of Doddabanswadi Village. He admits that Ex.P6 is earlier to Ex.P7. He did not make any enquiries to know what happened to Sy.Nos.257, 25
and 279 of Doddabanaswadi Village till that time. He admits that Rajarathnam purchased the property from Davidappa the Sy.No.119 measuring 2 acres 29 guntas on 67 11.8.1955. He does not know whether Davidappa had purchased that land on 27.10.1948 from Venkatappa Reddy. He admits that subsequent to the execution of the sale deed in favour of Ramaswamy Reddy, the revenue entries were made in his favour. He admits that all the 42 sites were shown in Horamaavu Panchayat records. He admits that in the partition deed, in 42 sites, no sites were given to them. It is suggested that Jayarama Reddy sold site Nos.16 and 17 to Sri.Dwarakanath and Sreedhar and the same was denied. He admits that his sister Suvarna is not a party to the partition deed but he admits that Tayanna Reddy and Shankar Reddy are the witnesses for the partition deed and they are his family friends. The partition deed came into existence during the pendency of the suit in the year 1999.

72. The defendant is examined as D.W.1 and in his affidavit, he has reiterated the averments of his written statement and got marked the documents Ex.D19 to Ex.D23(s). In the cross-examination, it is elicited that there was no difficulty or impediment to get register Ex.D19-irrevocable power of attorney. Ex.D19 was not signed by any witness or an Advocate. On the first page of Ex.D19, there is blank space with ink pen 68 filled up and the age written is not counter signed by the persons who have executed the deed. There is no mention of payment of Rs.2,00,000/- in Ex.D19 and also handing over of the possession is not written. It is admitted that on Ex.D.20, wherever the blank space is filled up with ink are not counter singed by the witness executed. In Ex.D20 also the executants are not identified by any other Advocate. Exs.D19 and 20 were taken purely for the business purpose. He has not taken any legal opinion from any Advocate as to the property of B.V.Ramaswamy Reddy is his self acquired property or joint family property. He has not ascertained from the Deputy Commissioner office or City Survey office as to whether the said property is converted or not. It is elicited that on Ex.D22 at page No.3, the date when the declaration is made is kept blank and on the left side where it is mentioned as witness, no witnesses have signed and it is also not identified by any Advocate. He has not signed any document regarding payment of betterment charges, tax paid receipt, conversion charges by B.V.Ramaswamy Reddy. He has not witnessed to sale deed in favour of the 8th defendant and also not verified when B.V.Ramaswamy Reddy passed away. He does not know on 18.1.1989 when Jayarama Reddy executed the sale 69 deed B.V.Ramaswamy Reddy was alive or not. It is suggested that Ex.D.19 to Ex.D22 are all forged and fabricated documents and the same was denied.

73. D.W.1 was subjected to cross-examination by plaintiff No.3 counsel. In the cross-examination, it is elicited that he came in contact with B.V.Ramaswamy Reddy through Abdul Shakurs son and he had been to the house of B.V.Ramaswamy Reddy thrice. He says that he does not know whether B.V.Ramaswamy Reddy was residing in joint family with his brother B.V.Krishna Reddy or not. He has not enquired as to whether the properties are self-acquired or joint family property. He does not know whether the said property is a joint family property or B.V.Krishna Reddys property. He admits that Ex.D.19 does not contain the signatures of B.V.Krishna Reddy, his wife and children. It is suggested that the signatures of B.V.Ramaswamy Reddy on Exs.D.19 and 20 do not tally with each other and they are forged signatures and the same was denied. He does not know whether B.V.Ramaswamy Reddy has got right to execute the power of attorney and declaration in respect of suit property. 70 74. D.W.2 in his affidavit has reiterated the contents of his written statement in lieu of his chief-examination. He got marked the documents at Exs.D.24 to 65(c). He was subjected to cross-examination. In the cross-examination, it is elicited that he has not taken any notice in the newspaper regarding purchase of the property. But he has seen the document dated 31.8.1931 partition deed. The witness volunteers that B.V.Ramaswamy Reddys grandfathers name is wrongly mentioned in it. It is suggested that the grandfathers name of B.V.Ramaswamy Reddy is Venkataswamappa and the same was denied. It is elicited that earlier the property purchased by him belonged to Venkatappa S/o Papayya, then the same was sold in favour of Davidappa and Davidappa in turn sold it to Rajarathnam in the year 1955. The said Rajaratham, in the year 1971, sold the property in favour of B.V.Ramaswamy Reddy. He has gone through the sale deed executed by Rajarathnam in favour of B.V.Ramaswamy Reddy. It is suggested that there is a recital in the sale deed of Rajarathnam that it is ancestral family property and the same was denied. It is suggested that Survey No.119 was never converted into non-agricultural purpose and the same was continued as agricultural land and the same was 71 denied. He admits that in the year 2001, he filed an application before the Court seeking permission of the Court for plastering the building and the same was sought in order to reside in the suit premises. He admits that in power of attorney, payment of amount is not mentioned. He does not know whether power of attorney and declaration are of different dates.

75. In further cross-examination, he states that he does not know whether the power of attorney have applied for any layout plan. He admits that Ex.D.19 indicates that no witness and advocate have signed the same. But he volunteers that he was not present at the time of execution of the document. Similarly on Exs.D.20, 21 and 22, no witnesses have signed and no advocates have identified them. He admits that Ex.D.24 sale deed was executed by plaintiff No.1 after the death of his father. He admits that Jayarama Reddy has sold the said property after the death of B.V.Ramaswamy Reddy. He does not know whether in Ex.P.7 sale deed there is a recital that the property is ancestral property. He admits that in the written statement he has not mentioned the names of all the four GPA holders, but he has mentioned only the name of Jayarama Reddy, one of the GPA holder. He admits that in Ex.D.2, the 72 name of GPA holder Jayarama Reddy is mentioned and the names of other three GPA holders are not mentioned. It is suggested that Exs.D.2, 3 and 4, are all created and the same was denied. He does not know when he had purchased the property on 18.1.1989 under Ex.P.25, B.V.Ramaswamy Reddy was alive or not. He admits that B.V.Ramaswamy Reddy purchased the suit schedule property from Rajarathnam in the year 1971. So on that basis he says that it is the absolute property of B.V.Ramaswamy Reddy. It is mentioned in Ex.P.7 that the vendor of the said property is the absolute owner. He has gone through the contents of Ex.P.7. He admits that in Ex.P.7, it is also mentioned that it is purchasers ancestral property.

76. D.W.3 in his evidence has produced the conversion certificate as directed by the Court in terms of Ex.D.66 and also conversion demand register extract of the year 1971-72 in terms of Ex.D.67. He also produced the layout plan copy as Ex.D.68. He also produced power of attorney executed by Lakshmidevi in his favour, which is marked as Ex.D.60. In further examination, he got marked Ex.D.69. He also identified the signature available in Ex.D.1 stating that the same is signed by his brother 73 Jayarama Reddy. It is also his evidence that he was very much present at the time of making the signature. He also identifies the signature of Venkataswamy Reddy as Ex.D.1(g) and signature of Babu Reddy, who is the brother of Venkataswamy Reddy as Ex.D.1(h). It is also his evidence that on the same day, the affidavit and agreements are executed in terms of Exs.D.2 and 3. He also identifies the signature of his brother in Ex.D.19 so also the signature of his brother in Ex.D.23. He was subjected to cross-examination.

77. In the cross-examination, he admits that he cannot tell how much sites are sold by the power of attorney holders. He admits that except execution of the sale deed by Jayarama Reddy in favour of defendant No.8, he does not know about any other sale made by him. He also admits that along with Jayarama Reddy he did not join for any sale transaction in respect of this property. It is suggested that Jayarama Reddy has not signed any document and those signatures does not pertain to that of Jayrama Reddy and the same was denied. He admits that in the RTC of Survey No.119, there was no mention that the property was converted. He admits that Ex.D.66 was given by his sister-in-law i.e., wife of Jayarama Reddy. He had 74 also seen the said document 20 years back. He cannot tell who gave the application for conversion in respect of Ex.D.66. He cannot tell whether B.V.Ramaswamy Reddy has given the application for conversion or not. He admits that he had not signed Exs.D.2 and 3. It is suggested that he is falsely deposing that he was very much present when Exs.D.2 and 3 came into existence and the said suggestion was denied. It is suggested that in order to help defendant Nos.8 and 11, he is falsely deposing that at the time of execution of Exs.D.2 and 3 he was very much present and the said suggestion was denied. He admits that in Ex.D.68 plan, none of the officials have signed. He admits that whenever his brother was doing any transaction, he used to get his suggestions and in his presence he was doing. He admits that B.V.Ramaswamy Reddy was having a brother by name B.V.Krishna Reddy. It is suggested that Exs.D.66 to 68 are created for the purpose of this case and the same was denied. It is suggested that Exs.D.19 to 23 are also created for the purpose of this case and the same was denied.

78. D.W.4 filed the affidavit in lieu of his chief-examination and also got marked the documents at Exs.D.70 to 147. In his affidavit he reiterated the averments of written statement. He 75 was subjected to cross-examination. In the cross-examination, it is elicited that Ex.D.21 is not a registered document. He admits that at the time of execution of sale deed, he requested B.V.Ramaswamy Reddy to execute the sale deed by himself but he told that he has already executed irrevocable power of attorney in favour of four persons. Ex.D.19 is not a registered power of attorney. A suggestion was made that in Ex.D.19, no interest is created in favour of power of attorney holders and the witness says that on the same day, declaration was executed regarding payment of Rs.2,00,000/- to B.V.Ramaswamy Reddy. But he admits that when Rs.2,00,000/- was paid, he was not present. It is elicited that Ex.D.21, does not contain any witness. He got the conversion certificate before purchasing the property. It is suggested that conversion certificate is a fabricated document and the said land was never converted and the same was denied. It is suggested that Ex.D.67 is forged and fabricated document and the same was denied.

79. He admits that family of B.V.Ramaswamy Reddy is a agricultural family. He was aware that Venkatappa sold the property to Davidappa and Davidappa sold the said property to Rajarathnam. The said Rajarathnam sold the property to 76 B.V.Ramaswamy Reddy. He admits that in pahanis it is not mentioned that it is converted land. He admits that he has not put up any construction in the said property. He admits that O.S.No.6305/2005 mentioned in para No.30 of his examination- in-chief affidavit, it is settled out of Court and also it is dismissed. The matter of Smt. Bhanumati is also settled. He admits that after the death of B.V.Ramaswamy Reddy, plaintiff Nos.1 and 2 have inherited the property and sold the property to different persons in their own right. It is also elicited that there are houses and khatha number is given in respect of Survey No.119 and it is a converted land. He is paying the taxes to the BBMP after 2007. He has gone through the contents of Ex.P.7 sale deed before purchasing the property and he had also seen the partition deed dated 23.9.1999 Ex.P.18. He admits that in Survey No.119, BDA has acquired 10 guntas of land out of 2 acres 29 guntas. He know that both B.V.Ramaswamy Reddy and B.V. Krishna Reddy are the sons of late Venkataswamy Reddy. He admits that B.V.Krishna Reddy and Venkataswamy Reddy have signed as guarantors to Ex.P.20. He also admits that in his sale deed, plaintiff No.3 K.Srinivasamurthy and his mother Smt. Ammayamma have not signed. 77 80. The Commissioner is examined as C.W.1. The Commissioner is the handwriting expert and in her evidence she says that she gave the report in terms of Ex.C.1 and identifies her signature as Ex.C.1(a). It is also her evidence that she has produced photographs and C.D. and the same may be considered as part of Ex.C.1. The Commissioner was subjected to cross-examination. In the cross-examination, it is suggested that generally the forged signature also appears to be genuine signature and the same was denied. It is suggested that under certain circumstances when the forged signatures are subjected to examination, it is not possible to find out the forged signature and the same was denied. The Commissioner admits that after 10-15 years gap, there are chances of variation in the signatures. It is suggested that under such circumstances, it cannot be decided whether those signatures are forged or genuine signatures and the said suggestion was denied. The witness also volunteers that when an expert forger makes forged signature, he concentrates only on original signature and hence the forged signature cannot be expected to be natural. It is elicited that in S4 to S8 signatures, in the name of 78 R.Venkataswamy, the letter e is in small letter and in S1, the letter E appears to be a capital letter. It is elicited that S1- signature is on the basis of Ex.D.1 sale deed. The witness says that except Ex.D.1, all other documents were sent to her for examination of signatures in S1 to S10 which were of different periods, and she has given the report. It is suggested that when Exs.D.2 and 3 are examined with bare eyes, it is clear that those signatures are forged signatures, and the same was denied. It is suggested that report given by her is not based on scientific reasons and the same was denied. The witness also says that in respect of signatures of Babu Reddy and Venkataswamy Reddy, she found 9 characters and explained the same. It is suggested that without properly examining those documents, she mechanically gave the report, and the same was denied.

81. Learned counsel for defendant No.3 also cross- examined this witness. It is elicited that since the admitted signatures and disputed signatures were in different styles, she has not given the opinion in respect of the signatures of Srinivasamurthy. It is suggested that admitted signatures, disputed signatures and sample signatures are not subjected to 79 examination and has given the report, and the same was denied. It is suggested that on Exs.D.2 and 3, signature of plaintiff No.3 varies and the same can be identified by looking into the same and the witness says that those signatures are in different styles and hence same cannot be compared. It is suggested that signature of Srinivasamurthy on Exs.D2 and 3 are forged signatures and without examining the same she gave the report, and the same was denied.

82. The defendants also examined one witness Joy T.Samuel as D.W.5, in his evidence, he says that defendant No.11 and her husband engaged his service for laying foundation for compound wall in respect of Site No.12 and he has done the earthwork and put up the compound wall and also made foundation for two rooms at the north west corner in the year 1988 and he had collected Rs.12,960/- from defendant No.11 to carry out the said work. It is also his evidence that in the year 1992, he was called upon to build two rooms on the foundation which he has already done in the year 1989 to store the building material. He started construction of compound wall during October 1992 and brought the material for construction. During 80 that time, plaintiffs No.1 and 2 came to the site and demanded money from the husband of defendant No.11. He had completed the construction of compound wall and installed a steel gate on the southern side of the compound wall facing ring road, during middle of November 1992.

83. Plaintiffs No.1 and 2 came in the night and pulled down the steel gate when the concrete was not fully cured and watchman-Vadivelu informed the same to him and when he was trying to reinstall the gate, plaintiffs No.1 and 2 came with their henchmen and threatened him and hence, he could not do the work and he informed the same to defendant No.11 that he cannot continue the work. He identified the photographs and says that he collected an amount of Rs.16,188/- from defendant No.11 and issued the receipt. Through this witness, marked the documents i.e., receipts and signatures as Exs.D72, D72(a), D79 and D79(a) and Exs.D81 and D82 are the photographs, which shows that he carried out the construction work. Ex.D91 is the photograph, which shows the construction of the compound wall. Ex.D136 is the layout and Ex.D138 is the Site No.12, where he carried out the work. He was subjected to cross-examination. In 81 the cross-examination, he admits that, he is working as a Civil Contractor and he has no license to show that he is doing the civil contract work. He also admits that he has not given any document to Court to show that he is a Civil Contractor. It is suggested that he has never done any civil contract work at any point of time and the same was denied. He admits that, he used to go to the clinic of defendant No.11 for treatment that is how he knew them. He admits that, he does not know whether the site comes under the jurisdiction of Corporation or BBMP at that time. He has not obtained any approved plan for the construction of the said compound wall. Except compound wall, he has constructed anything in the said site. He says that, Site No.12 comes in Horamavu village near Banasawadi area and after the work, he has not visited the said site. He does not know the present state at Site No.12. He has constructed the said compound wall with hallow bricks. He started the foundation of the compound wall in the year 1988 and finished the construction of compound wall in the year 1992. It is suggested that he has not installed any gate to the compound wall in the said site in the year 1992 and the same was denied. It is suggested that he has not seen either Venkataswamy Reddy or 82 Babu Reddy at any time and the same was denied. It is further suggested that they are not demanded any money from Dr.Jacob and the same was denied. He admits that, he did not lodge any complaint about pulling down the steel gate and also he does not know whether defendant No.11 had lodged any complaint before the police. It is suggested that Venkataswamy Reddy has never threatened him and they have not demolished any gate and the same was denied. It is suggested that the documents, which he has produced as exhibits are created documents and the same was denied. He admits that, he has not produced any receipts to show that he has purchased the material for construction of compound wall and so also in respect of Exs.D72 and D79. He was not present at the time of Exs.D81, 82 and 91 photographs were taken.

84. D.W.6 is one P.Jayaram, in his evidence, he says that he knows the husband of defendant No.11 from the year 1990 onwards. The brother of A.Jayaram Reddy i.e., A.Nagaraj, has introduced to him. In his affidavit, he says, defendant No.11 and her husband engaged him for repair of the compound wall during June 1994. He has done the construction of compound 83 wall using hollow concrete bricks for a length of 30 feet x 5 feet on the south side of site No.12 and he has issued a receipt. He also says as per the orders of Deputy Commissioner of Police, the Police Constable was posted opposite to the site standing on the road, when he was carrying out the rebuilding of the damaged compound wall. R.Venkataswamy Reddy had taken photograph holding the newspaper, outside the compound wall with the help of a camera man when the repairs of damaged portion of compound wall was going on. He can identify him and he has not objected for the construction. Through this witness, Ex.D95 photograph has been marked, so also, Ex.D100 receipt and the other photographs as Ex.D101 and Ex.D102 contain the compound wall, which was repaired by him. Exs.P37 and P41 are the photographs, which were taken when he was present at the time of the work was going on. The person in Ex.P37 is the Venkataswamy Reddy and the husband of defendant No.11. In Exs.P38 to Ex.P41, Venkataswamy Reddy was present. The cross-examination was deferred at the instance of the plaintiffs counsel. But, subsequently, he was not subjected to cross-examination. Hence, I do not find any cross- examination in respect of D.W.6. 84 85. The witnesses, D.W.5 and D.W.6 have been examined only with regard to undertaking of construction work of compound wall to establish the possession of defendant No.11.

86. Now let this court consider the pleadings and also material available on record. The case of the plaintiffs in O.S.No.1611/1994 is that A schedule property is the joint family property and B.V.Ramaswamy Reddy had purchased the same in the year 1971 from Rajarathnam by repaying the amount payable to him. Hence, the sale deeds executed in favour of defendant Nos.8 and 11 are not binding. Though the suit was filed against several persons, subsequently it was restricted against defendant Nos.8 and 11, in respect of site Nos.1, 2 and 12. The prayer in the suit is that sale deeds executed in favour of defendant No.8 dated 18.01.1989 is not binding so also sale deed dated 14.06.1988, executed in favour of defendant No.11. The plaintiffs have also sought for the relief of permanent injunction restraining the defendants from interfering with their possession and also sought a direction against defendant No.8 to put the plaintiffs in vacant possession 85 in respect of suit schedule B property of defendant No.8, removing the construction. It is also important to note that plaintiffs in schedule A mentioned total extent of 2 acres 29 guntas in respect of Sy.No.119. Site Nos.1 and 2 is shown in schedule B, which belongs to defendant No.8 and in schedule C, site No.12 is in respect of defendant No.11. The plaintiff in O.S.No.7498/1992 has filed the suit for the relief of bare injunction against the defendants who are the plaintiffs in O.S.1611/1994 contending that they are interfering with the suit schedule property.

87. Keeping in view the pleadings and evidence available on record, this Court has to re-appreciate the material available on record. It is the case of the plaintiffs in O.S.1611/1994 that the suit schedule property which is morefully described in A schedule, is the joint family property. In order to substantiate their contentions, they have relied upon the documents at Exs.P.1 to 53. It has to be noted that Ex.P.7 is the sale deed executed by Rajarathnam in favour of B.V.Ramaswamy Reddy on 15.09.1971. It is also important to note that Ex.P.5 is the sale deed executed in favour of Rajarathnam by one Davidappa on 12.08.1955. It is also important to note that Ex.P.4 is the sale 86 deed dated 27.10.1948 executed in favour of Davidappa. Having taken note of these sale deeds, it is clear that the sale deeds Exs.P.4 to 6 are absolute sale deeds. It is pertinent to note that in Ex.P.7, it is mentioned that earlier this property was the ancestral property. But on perusal of entire recital of the document Ex.P.7, it is clear that it is an absolute sale deed. The plaintiffs taking note of the mentioning of the same that it was the ancestral property earlier, would contend that the property was purchased in the name of B.V.Ramaswamy Reddy by the joint family. The plaintiffs also relied upon Ex.P.8 partition deed dated 23.09.1999. No doubt in this partition deed, except the suit schedule property, other properties are partitioned. It has to be noted that Ex.P.8 came into existence during the pendency of the suit. Hence, no value can be attached to this document to come to the conclusion that A schedule property is the joint family property. It is pertinent to note that the plaintiffs have also relied upon certified copy of the award passed in L.A.C.Nos.217/86, 151/87, 149/89, 3
and so also judgment passed in L.A.C.No.1
which are marked as Exs.P.21 to 23. The plaintiffs also relied upon Ex.P.20 mortgage deed. It is the contention of the plaintiffs that the suit 87 schedule property was not converted and relied upon Ex.P.27 endorsement issued by the Tahsildar and also endorsement issued by the Special Deputy Commissioner in terms of Ex.P.36.

88. In view of those documents, this court would like to examine the evidence available on record. It has to be noted that P.W.1, who is plaintiff No.1 by relying upon these documents would contend that the suit schedule property is the joint family property. In the cross-examination, certain important answers are elicited from the mouth of P.Ws.1 and 2. It has to be noted that P.W.1 in the cross-examination categorically admits that his sisters and daughters of his uncle B.V.Krishna Reddy, are not parties to the suit. He did not dispute the relationship between the parties. He categorically admits that his uncle has got 6 daughters and a son. The said son is none other than plaintiff No.3. Hence, it is clear that only the sons of B.V.Ramaswamy Reddy and B.V.Krishna Reddy have filed the present suit without arraying their sisters as parties to the proceedings. Without arraying the sisters as parties, they cannot contend that the sale deeds are not binding on them. It is further important to note that P.W.1 categorically admits that 88 on 11.08.1955, Davidappa sold the property to Rajarathnam. He also admits that in turn Rajarathnam has sold the property in favour of B.V.Ramaswamy Reddy in the year 1971. Hence, it is clear that from 1948 onwards the suit schedule property was exchanged between Davidappa, Rajarathnam and B.V.Ramaswamy Reddy. It is also pertinent to note that he categorically admits that in Ex.P.7 sale deed, totally 4 items of properties are included, including Sy.No.119 measuring 2 acres 19 guntas which is A schedule property. The sale consideration is mentioned as Rs.5,000/-. He also admits that in the sale deed Ex.P.7, there is no mention of name of his uncle B.V.Krishna Reddy.

89. Having considered the documents of Sale Deeds - Exs.P4 to P7 and so also, Partition Deed dated 23.9.1999 Ex.P8, it is clear that, originally, the property belongs to the ancestors of B.V.Ramaswamy Reddy and the same was sold in the year 1948 itself in terms of Ex.P4 in favour of Davidappa. Thereafter, the same was sold in the year 1955 in favour of Rajarathnam in terms of Ex.P5. Thereafter, B.V.Ramaswamy Reddy had purchased the property in terms of Ex.P7 on 89 15.9.1971. Hence, it is clear that it is not a Nambike Kraya as contended by the plaintiffs and property was exchanged between three persons from 1948 onwards, the same is admitted by PWs.1 and 2 in their cross-examination and the property was in the hands of Davidappa from 1948 onwards. The recitals of the documents shows these transactions are absolute sale deeds. It is the contention of the plaintiffs that, it was only a nominal transaction and the family was in need of the money since the family was in the financial difficulties and in the year 1971, the family had become financially sound and hence, the same was re-purchased. The said contention cannot be accepted for the reason that on perusal of these documents and recitals of the documents, it is clear that the sale transactions were absolute sale transactions. No doubt, I have already pointed out that there was a recital in the document-Ex.P7 that it was an ancestral property and that does not mean that B.V.Ramaswamy Reddy had purchased the property out of the joint family funds and there was an existence of joint family. The same is not substantiated by placing any material except the pleadings. If really earlier transactions are nominal transactions, there cannot 90 be a transfer in favour of third parties i.e., in favour of Devidappa and Rajarathnam.

90. Having considered the recitals of the document of Ex.P7, it is clear that the sale consideration of Rs.5,000/- was paid not only in respect of this property and other four items of the suit schedule property. PWs.1 and 2 have also categorically admitted that on 11.8.1955, Davidappa has sold the property in favour of Sri V.C. Rajaratnam. The said V.C. Rajaratnam had sold the property in the year 1971 almost after 16 years. It is also admitted by P.Ws.1 and 2 that in the Sale Deed, Ex.P7, it is not in favour of the other brother of B.V.Ramaswamy Reddy, i.e., Mr.B.V.Krishna Reddy. It is also pertinent to note that P.Ws.1 and 2 have categorically admit that after purchasing of the property, the said B.V.Ramaswamy Reddy had formed a layout and sold the property in favour of the prospective purchasers as absolute owner of the property. It is also not in dispute that after the death of B.V.Ramaswamy Reddy, the plaintiffs No.1 and 2 have also sold some of the sites as legal heirs of B.V.Ramaswamy Reddy. Though, it is the claim of the plaintiffs that the said A schedule property is the joint family 91 property, first of all, the plaintiffs have not made the respective sisters as parties to the suit and no reason has been assigned for non-inclusion of their sisters. Apart from that, the suit is filed only for the relief of declaration that the same is not binding. The plaintiffs also did not dispute the fact that the property was sold in favour of different prospective purchasers. It is also important to note that both P.Ws.1 and 2 have categorically admit that the power of attorney holder had executed the Sale Deed in favour of several persons, particularly, they admit the execution of the Sale Deed by the Power of Attorney holder Sri A. Jayarama Reddy in favour of Sridhara and Dwarakanath. It is also pertinent to note that in Ex.P25, in the Sale Deed, it is written that A. Jayarama Reddy, is the power of attorney holder of his father i.e., the Sale Deed executed in favour of defendant No.8. Though, these plaintiffs denies the very execution of the power of attorney in favour of A. Jayarama Reddy by their father, they are the signatories to the documents of Sridhara and Dwarakanath and admitted that they are the consenting witnesses. It is also pertinent to note that the original owner, B.V.Ramaswamy Reddy, himself is the witness to the document executed by Jayarama Reddy i.e., Ex.D.61. When such being the 92 case, they cannot blow hot and cold in one breadth stating that the power of attorney has been created and no such power of attorney has been executed, if such power of attorney was not been executed what made them to put the signature as witness to the document of Sale Deed executed in favour of Sridhara in respect of Site No.17. It is also important to note that Sri A. Jayarama Reddy has sold Site No.16 to Sri Dwarakanath as power of attorney holder of their father and the same has been admitted in the cross-examination and witness to the document.

91. P.W.1, categorically admits that he is an attesting witness on the Sale Deed executed by Sri A. Jayarama Reddy in favour of Sri A.R.Sridhara. Further he admits that, he used to sign both in Kannada and English language. When these answers are elicited from the mouth of P.Ws.1 and 2 with regard to the execution of Sale Deed by Sri A. Jayarama Reddy as a power of attorney in favour of prospective purchasers. Based on the Power of Attorney executed by the father of plaintiffs No.1 and 2 in terms of Ex.P19, the sale deeds are executed. The plaintiffs cannot contend that the sale transaction made by the power of attorney holder is not binding. It is also important to note that 93 the Commissioner, who has been examined as CW.1, in the opinion, she has categorically opined having considered the characteristics of the signatures of plaintiffs No.1 and 2 in respect of Exs.D2 and D3, it is clear that the disputed signatures and the admitted signatures are one and the same and when such being the circumstances, the plaintiffs cannot contend that they have not executed the documents Exs.D2 and D3. The main contention of the plaintiffs in the appeal is that the discrepancies in Exs.D2 and D3 and that the report of the Commissioner cannot be accepted to come to the conclusion that Exs.D2 and D3 are genuine documents and the report of the Commissioner is not based on the scientific reasons. The said contention cannot be accepted. Nothing is elicited in the cross- examination of the Commissioner to disbelieve the evidence of the Commissioner and also it is pertinent to note that the report given by the Commissioner insofar as plaintiff No.3 is concerned, only the Commissioner found different style of signatures and hence, not formed an opinion. The report of the Commissioner in respect of plaintiff No.3 is that the signatures are in different styles and hence, the Commissioner cannot form an opinion. Hence, it is clear that consequent upon the execution of power of 94 attorney - Ex.D19 and also the execution of the affidavit and declaration in terms of Exs.D2 and D3, the very contention of the plaintiffs/appellants that the document of Ex.D19 has not been proved, cannot be accepted. It is pertinent to note that on perusal of the document Ex.D19, it is clear that the power of attorney was executed and based on the said power of attorney, a number of sale deeds were executed and also pertinent to note that the plaintiffs No.1 and 2 have categorically admitted that based on that power of attorney, sale deeds are executed by the power of attorney holder Sri A. Jayarama Reddy in favour of the purchasers and the signatories to some of the documents as attesting witnesses. Now, cannot contend that, no such power of attorney has been executed in favour of Jayarama Reddy and the same in concocted. The father of plaintiff Nos.1 and 2, himself is a witness to the document executed by the power of attorney.

92. I have given my anxious consideration to the principles laid down in the Judgments referred by the appellants/plaintiffs counsel insofar as the properties are joint 95 family properties and presumption regarding joint family properties unless the same is rebutted.

93. The Learned counsel appearing for the respondents also brought to my notice, the Judgment in Mohammed @ Podiyas case referred supra. This Court has categorically held that the Court has to see the features of the documents and also to examine whether the execution of the document of power of attorney is agency coupled with interest and whether that authority was irrevocable.

94. Having considered the principles laid down in the Judgment referred supra and also considering the contentions and recitals of Ex.D19, it is not a case of simple execution of the power of attorney and it is in the nature of transferring the same, coupled with interest. The above Judgment is aptly applicable to the case on hand that the agency is coupled with interest. Based on that power of attorney, the sale deeds are executed. The appellants/plaintiffs Counsel have vehemently disputing the document-Ex.D19. On perusal of recitals of Ex.D19 and based on Ex.D.19, the power of attorney holder executed the sale deeds to which the father of plaintiff Nos.1 and 2 and so 96 also plaintiff Nos.1 and 2 have signed the said sale deeds as witnesses, cannot dispute the same.

95. He also relied upon the Judgment in S.V.NARAYANASWAMYs case referred supra, in this Judgment also, this High Court held that, if such power of attorney is termed as the Power of Attorney coupled with interest and is regarded as property disposition/transfer of property rather than as the conferring of general authorities on the attorney, the same shall not be revoked until such time that his attorney voluntarily seeks for such revocation. The General Power of Attorney cannot be revoked until such time the appellant seeks for its revocation. But in the case on hand, it is to be noted that the father of plaintiffs No.1 and 2 has not revoked the power of attorney and instead of he kept quiet while executing the Sale Deed by the power of attorney holder and also attested the same as witness. Hence, the principles laid down in the Judgment are also aptly applicable to the case on hand.

96. The Learned counsel appearing for the respondents further relied upon the Judgment in K.M.MUNIREDDYs case referred supra and brought to my notice that, Section 114 of the 97 Evidence Act, 1872 with regard to estoppel. The principles laid down in the Judgment is also aptly applicable to the case on hand for the reason that when the plaintiffs No.1 and 2 have categorically admitted the very execution of Sale Deed by B.V.Ramaswamy Reddy, in favour of the purchasers and so also when PWs.1 and 2 have categorically admitted the very execution of the Sale Deed by the power of attorney holder and an attesting witness to the said documents, the plaintiffs have estopped from taking the contention that B.V.Ramaswamy Reddy was not having any absolute right to alienate the property and to execute the power of attorney. It is also recited in all the documents that B.V. Ramaswamy Reddy is the absolute owner as well as after the death of Ramaswamy Reddy, they themselves executed the sale deed as absolute owners.

97. Having considered the admissions and also the very execution of the document, particularly, the report of the Commissioner in respect to Exs.D2 and D3, I am of the opinion that the very contention of the plaintiffs that A schedule property is the joint family property and it is not the self acquired property of B.V.Ramaswamy Reddy, cannot be 98 accepted. In the evidence, it is emerged before the Court that the very B.V.Ramaswamy Reddy himself had executed the Sale Deeds in favour of prospective purchasers as absolute owners and subsequent to the death of B.V.Ramaswamy Reddy, the plaintiffs No.1 and 2 have also executed the Sale Deeds, as absolute owners and now they cannot contend that it is the joint family property and not the self acquired property of B.V.Ramaswamy Reddy. No doubt, the appellants Counsel on behalf of appellant Nos.1 and 2 and so also on behalf of appellant No.3 have vehemently contended that the documents Exs.P21 and P23 i.e., the copy of the Award and Judgment in Land Acquisition proceedings, substantiate their claim that the same is the Joint Family Property and merely because of the Land Acquisition proceedings was taken place that cannot be a ground to come to a conclusion that it is a Joint Family Property. Those proceedings will not create any right that those properties are joint family properties. The Court has to take note of the contents of the document of Ex.P7 and thereafter the parties have acted upon in the case on hand by executing the Sale Deeds. It is also important to note that the Sale Deeds are executed in the years 1986, 1987, 1988 and 1989 itself and the 99 suit is filed in the year 1994. The Court below also rightly comes to the conclusion that the suit is barred by limitation since the same has not been challenged within three years from the date of execution of the Sale Deeds and it is also not the case of the plaintiffs that they were not having the knowledge in respect of the said sale transaction since they are the signatories to some of the documents.

98. It is also pertinent to note that the plaintiffs counsel contend that there was no conversion of the property and relies upon the endorsement issued by the Special Deputy Commissioner and also the endorsement issued by the Tahasildar and the defendants also relies upon Exs.D66, D67 and D68, producing the conversion certificate, demand register extract and layout plan. These documents are only with regard to the conversion of the property but the fact that the property was sold is not in dispute. It is also pertinent to note that the suits are filed against several persons and it is emerged in the evidence that except these defendants, the relief sought against other defendants are withdrawn and categorically admitted that they have collected the money from them and withdrawn the 100 suit. Hence, it is clear that the suit is filed only with an intention to extract the money from the prospective purchasers. The very conduct of the plaintiffs is clear that in order to extract the money and to make the wrongful gain, the suits were filed against the defendants, in spite of that, the sale deeds were executed by their father and also by the power of attorney holder of their father. Hence, the plaintiffs have not approached the Court with clean hands seeking the relief of declaration. The plaintiffs should have approached the Court with clean hands while seeking the relief of declaratory relief and the same has not been done. The documents - Exs.D31 to D35 discloses that the suits are filed against other purchasers also. This is evident that the suits are filed only with an intention to extract the money from the defendants. The plaintiffs have also filed a memo for withdrawal of the suit against some of the defendants, who paid the money.

99. The learned counsel appearing for the plaintiffs have relied upon several Judgments referred above with regard to executing of a document by a Kartha of the family with regard to his source of income and acquiring of the property out of the 101 funds of the family. This Court has given the finding that it is the self acquired property of B.V.Ramaswamy Reddy and during his lifetime he sold the property as absolute owner and subsequent to the death of B.V.Ramaswamy Reddy, the plaintiffs No.1 and 2 have also executed the Sale Deed as absolute owners as his legal heirs. When such being the facts and circumstances of the case, the number of judgments relied upon by the learned counsel appearing for the plaintiffs would not come to the aid of the plaintiffs. It has emerged in the evidence that he has not only purchased the property in the year 1971, thereafter he has formed the layout and sold the properties as absolute owner and also executed the power of attorney in favour of one Sri A. Jayarama Reddy and others to sell the properties. In the case on hand, Sri A. Jayarama Reddy, has executed the sale deeds in favour of these defendants and the material available on record, both oral and documentary evidence and also the admission elicited from the mouth of PWs.1 and 2 is clear that, it is the property of B.V.Ramaswamy Reddy and the parties have acted upon and the same is not being questioned immediately after the execution of the Sale Deed and also the evidence available on record, it is clear that 102 only with an intent to extract the money from the defendants, the suits are filed after extracting the money from the purchasers, the suit filed against other defendants are withdrawn and only the suit against defendant Nos.8 and 11 were continued and the very conduct of the plaintiffs is clear that only in order to make the wrongful gain, the suit is filed against the defendants, who are the purchasers.

100. I have already pointed out that having considered the material available on record and also the persons, who have not approached the Court with clean hands are not entitled for the relief of declaration, particularly, the nature of the relief sought in the suit as not binding and did not seek the relief to set aside the Sale Deeds and also it has to be noted that all these sale transactions are within the knowledge of plaintiffs and they are also the signatories to certain documents and also they themselves have sold the property after the death of B.V.Ramaswamy Reddy as absolute owner.

101. Having considered the material available on record both oral and documentary evidence and also the admissions, the Court below has not committed any error in dismissing the 103 suit of the plaintiffs and decreeing the suit filed by the other defendant. No doubt, the Court below while discussing, erroneously mentioned that the brothers were not made as parties to the proceedings and the same is only a mistake instead of referring the sisters have not been made as parties to the proceedings, it is mentioned as brothers have not made as parties.

102. The Court below also committed an error in coming to the conclusion that the plaintiffs No.1 to 3 have attested the General Power of Attorneys and confirmed the Sale Deeds executed by the General Power of Attorney holders. But no doubt, the plaintiffs No.1 to 3 have not attested the General Power of Attorney, but plaintiffs No.1 and 2 have confirmed the Sale Deeds executed by the General Power of Attorney holders putting their signatures as attesting witnesses.

103. The learned counsel appearing for the plaintiffs/appellants in their arguments have vehemently contended that the Court below did not consider both oral and documentary evidence in a right perspective. The said contention cannot be accepted. No doubt, the Court below has 104 committed another mistake while referring the power of attorney in coming to the conclusion that B.V.Ramaswamy Reddy and Krishna Reddy have executed irrevocable General Power of Attorney in favour of Jayarama Reddy, Abdul Shukuar, Syed Abdul Sattar and Indru T. Krupalani. The said observation is also erroneous. Since only B.V.Ramaswamy Reddy had executed the power of attorney and not B.V. Krishna Reddy. The other contention of the appellants counsel is that the Court below has committed an error that, it is observed in the year 1971, the joint family property lost its character, since one V.C. Rajarathnam purchased the property. Later, B.V. Ramaswamy Reddy purchased it. The said contention cannot be accepted since I have already pointed out that earlier property was sold in favour of Davidappa in the year 1948 itself and in turn he sold the property in the year 1955 itself in favour of Rajarathnam and thereafter in favour of B.V. Ramaswamy Reddy and several hands are exchanged between several persons.

104. Except those mistakes committed by the Trial Court, with regard to coming to the conclusion that the A schedule property is not the Joint Family Property, has not committed any 105 error and also taken note of Exs.D2, D3 and D4 declaration made by the plaintiffs themselves. In Ex.D4, they have declared that the residential layout in Sy.No.119 was formed by B.V.Ramaswamy Reddy and they have given up their rights in respect of Site Nos.3 to 6, 24, 25, 27, 29 to 32. The other contention of the plaintiffs is that the sale deeds were executed after the death of B.V.Ramaswamy Reddy and the power of attorney executed by him goes along with the person, who dies and the said contention also cannot be accepted for the reason that I have already formed an opinion that the power of attorney executed by B.V.Ramaswamy Reddy, is coupled with the interest. No doubt, in the cross-examination, it is elicited by the defendants that there was no any mention in the power of attorney that B.V.Ramaswamy Reddy, has received an amount of Rs.2 Lakhs from the power of attorney holders. Even though, the same is not mentioned in the documents, the parties have acted upon and the very executant of the power of attorney did not dispute the same. He did not revoke the power of attorney and he also attested the sale deed of power of attorney holder.

105. It is also important to note that, the plaintiffs No.1 and 2 have also executed the declaration in terms of Exs.D2 and 106 D3 and though the same has been disputed and denied the signatures on Exs.D2 and D3, the handwriting expert has opined that the signatures of PWs.1 and 2 found on Exs.D2 and D3 are tally with the admitted signatures. When such being the circumstances of the case, it cannot be contended that the Sale Deed executed in favour of the defendants does not confirm any right and the same is not binding cannot be accepted. The defendants on the other hand have proved the suit schedule property was purchased by B.V.Ramaswamy Reddy and the same is his absolute property. The answers elicited from the mouth of PWs.1 and 2 with regard to execution of the Sale Deed by B.V.Ramaswamy Reddy, himself when he was alive and the answer elicited from the mouth of the witnesses, PWs.1 and 2 with regard to execution of the power of attorney and the plaintiffs themselves attesting the Sale Deeds executed by the power of attorney in favour of prospective purchasers takes away the case of the plaintiffs. It is also admitted in the cross- examination of PWs.1 and 2 that defendant No.8 had already constructed the house in Site Nos.1 and 2 and he has been in possession of the suit schedule property. The answer elicited from the mouth of D.W.1 that he did not make any enquiry 107 before purchasing the property is not fatal to his case since the plaintiffs have acted upon the document of Ex.D.19.

106. Having considered the material on record, the Court below by giving anxious consideration to both the oral and documentary evidence, rightly dismissed the suit in O.S.No.1611/1994 and rightly decreed the suit filed by the 11th defendant in O.S.No.7498/1992 and restrained the plaintiffs in interfering with the peaceful possession and enjoyment of the property of the 11th defendant.

107. I do not find any cogent evidence to reverse the findings of the Trial Court. The Court below except making certain mistaken observation, considered both oral and documentary evidence and rightly comes to the conclusion that the plaintiffs in O.S.No.1611/1994 have not made out any case. The 11th defendant has made out the case for grant the relief of permanent injunction. In the absence of non-consideration of material evidence by the Trial Court, this Court cannot reverse the findings of the Trial Court and hence, I do not find any merit in the appeals filed by the appellants/plaintiffs. 108 In view of the discussions made above, I pass the following: ORDER Both the appeals are dismissed. No costs. MD/ST/PYR/CP Sd/- JUDGE


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