1 RFA No.889 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF JULY, 2025 PRESENT THE HON'BLE MR JUSTICE S.G.PANDIT AND THE HON'BLE MR JUSTICE T.M.NADAF REGULAR FIRST APPEAL NO.889 OF 2012 (DEC/INJ) BETWEEN: 1 . R VINODKUMAR KINI AGED 57 YEARS, S/O LATE P RAGHUNATH KINI 2 . V VIVEKANANDA KINI AGED 25 YEARS, S/O R VINODKUMAR KINI 1 & 2 BOTH RESIDING AT NO.5-7-739/2, “VENKATA KRUPA”, DONGARAKERI, MANGALORE - 575 003 ... APPELLANTS (BY SRI. B N ANANTHA NARAYANA, ADVOCATE) AND 1 . S M RAMASWAMPPA SINCE DEAD BY LRS SMT. BHAGYAMMA AGED 57 YEARS, W/O LATE S M RAMASWAMAPPA 2 . SRINIVAS AGED 41 YEARS, S/O LATE S.M. RAMASWAMAPPA 3 . SMT SAVITHA AGED 28 YEARS D/O LATE S.M.RAMASWAMAPPA 2 RFA No.889 of 2012 4 . SMT KAVITHA AGED 26 YEARS D/O LATE S.M.RAMASWAMAPPA 1 TO 4 ALL ARE RESIDING AT 43-A, 9TH ‘D’ CROSS, SBI COLONY SARAKKI GATE, KANAKAPURA MAIN ROAD, BANGALORE – 560 078 5 . N GOPAL AGED 72 YEARS, S/O NARAYANA SWAMY R/O NO.141/2, MANJUNATHA ROAD, II BLOCK, THYAGARAJANAGAR, BANGALORE – 560 028 …RESPONDENTS (BY SRI. MS. SRUTI CHAGANTI, ADVOCATE FOR SRI. B.SIDDESHWARA, ADVOCATE FOR R5; VIDE ORDER DATED 23.09.2014, SERVICE OF NOTICE TO R1 TO R4 ARE HELD SUFFICIENT) THIS APPEAL IS FILED UNDER SECTION 96 OF CPC PRAYING THAT THE JUDGMENT AND DECREE DATED 17.4.2012 PASSED IN O.S.NO.8820/2007 ON THE FILE OF THE XI ADDL. CITY CIVIL JUDGE, BANGALORE CITY BE SET ASIDE AND THE SAID SUIT FILED BY THE APPELLANTS BE DECREED BY ALLOWING THE ABOVE APPEAL WITH COSTS. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 05.06.2025 AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’ THIS DAY, T.M. NADAF J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE S.G.PANDIT AND HON'BLE MR. JUSTICE T.M.NADAF 3 RFA No.889 of 2012 CAV JUDGMENT ( PER: THE HON’BLE MR JUSTICE T.M.NADAF ) This regular first appeal filed by the plaintiff under Section – 96 of Code of Civil Procedure calling in question the judgment and decree dated 17.04.2012 in O.S. No.8820/2007, passed by the 11th Additional City Civil Judge, Bangalore City (C.C.H. No.8), whereby the suit filed by the plaintiff for the relief of declaration, possession mense profit and for injunction, was dismissed. 2. The parties shall be referred to as per their ranking before the court below, for easy reference. 3. A brief outline of the facts leading to the filing of the present appeal are as follows: The plaintiffs filed a suit seeking for bare injunction in respect of the suit schedule property. However, during the pendency of the suit as there was an encroachment by the defendant No.2 as contended by the plaintiff on the suit schedule property, an application came to be filed seeking to include the prayer of declaration and possession of the property, so also mense profits. 4. It is contended that, the plaintiffs are the owner of the suit schedule property, purchased it from erstwhile owner P.Saroja 4 RFA No.889 of 2012 under a registered sale deed dated 29.03.2005, and they were put in possession of the property in pursuance of the sale deed. The vendor Saroja had purchased the suit schedule property from the wife and children of Late K.A.L.Ganesan under a registered sale deed dated 30.03.1998. The sale deed in favour of plaintiffs came to be registered through the GPA holder of P.Saroja. At an earlier point of time, a suit in O.S.No.3448/1980 was filed by the deceased – first defendant S.M.Ramaswamappa, with other connected suits in the court of 2nd Munsiff, Bangalore wherein, the suit schedule property was also a subject matter for the relief of specific performance against K.A.L.Ganesan on the ground that the sale deed executed in favour of K.A.L.Ganesan in respect of suit schedule property on 29.03.1963 was not an out right sale deed and it was a mortgage deed. The suit along with other suits came to be dismissed by a judgment and decree dated 03.12.1990 holding that the sale deed dated 29.03.1963 executed in favour of K.A.L.Ganesan was in fact a sale deed and not a mortgage as contended by the plaintiff therein. The appeal filed by the deceased Ramaswamappa - defendant No.1 calling in question the said judgment and decree in RFA No.194/1991 came to be dismissed on 28.05.1998 whereby the judgment and decree passed by the trial court was confirmed and attained finality. The first plaintiff was working as a Senior Manager 5 RFA No.889 of 2012 in Corporation Bank and he was staying outside Bangalore on account of service in the said bank. The plaintiffs subsequent to the purchase of the property kept a watchman in the shed, which was existing in the suit schedule property. The defendant without having any manner of rights attempted to interfere in the possession of the plaintiffs in the suit schedule property and trespassed into suit schedule property and tried to put construction on 03.11.2007, which was resisted by the plaintiffs, which culminated in lodging a complaint against defendant no.2 with J.P. Nagar Police Station. As Police did not take any action, the plaintiffs filed a suit for bare injunction. Subsequent to filing of the suit, defendant no.2 trespassed into the property and put up a construction in the property which made the plaintiffs to amend the plaint, including the prayer for the relief of possession, declaration and restoring the suit property to the plaintiffs. The Trial Court considering the prima-facie case granted temporary injunction from putting up any construction. 5. After filing of the suit, defendant No.1 died which was reflected in the postal shara and the LRs of the deceased were brought on record. However, they have not appeared before the Court despite service of notice and not participated in the proceedings. The second defendant appeared through his counsel and filed written statement denying the entire case of the plaintiffs 6 RFA No.889 of 2012 contending that the suit schedule property purchased by him under a registered sale deed dated 13.02.1980, from Late Ramaswamappa - deceased defendant No.1. After purchase, he has constructed a small house and was residing therein along with his family members. He was paying tax to the concerned local authority and katha has been effected in his name in respect of the suit schedule property. He has paid the betterment charges to the BBMP and obtained electricity connection and water connection in the suit schedule property. He has contended that neither the plaintiffs nor their vendor P.Saroja, or her vendors have any right over the suit schedule property. 6. It is further contended that the second defendant was not a party to the suit in O.S.No.3448/1980 or RFA No.194/1991 and as such, the judgments and decrees are not binding on him. He denied that the plaintiffs purchased the suit schedule property from P.Saroja under sale deed dated 29.03.2005 and they were put in possession of the same. He further denied that he has attempted to interfere with the plaintiffs possession and trespassed into the suit schedule property. As he has purchased the suit schedule property in the year 1980 there is no question of trespassing or interfering with the possession of the plaintiffs. Subsequently, the defendant no.2 filed an additional written statement contending that P.Saroja 7 RFA No.889 of 2012 never executed the sale deed in favour of the plaintiffs at any point of time and she has not executed any GPA in favour of her husband V.Puttaraju, authorizing him to sell the suit schedule property. He has further contended that on 06.12.2010 the said P.Saroja executed a registered confirmation deed in his favour confirming that he has acquired good marketable title in respect of the suit schedule property under the sale deed dated 13.02.1980 and she has also admitted the possession of the second defendant over the suit schedule property. The defendant has also contended that the suit is barred by limitation and accordingly, sought to dismiss the suit. 7. The trial court subsequent to completion of the pleadings, framed the following issues and additional issues, which reads as follows: ISSUES 1. Whether the plaintiffs prove that they are the owners of the plaint schedule property? 2. Whether the plaintiffs prove that they are in lawful possession of the plaint schedule property as on the date of the suit? 3. Whether the plaintiffs prove that the defendants have interfered with their possession and enjoyment of the suit schedule property? 8 RFA No.889 of 2012 4. Whether the plaintiffs prove that they are entitled for the relief of permanent injunction as sought for? 5. Whether the plaintiffs prove that during pendency of the suit, the 2nd defendant has trespassed into suit schedule property and has illegally put up construction on the suit property? 6. Whether the plaintiffs are entitled for the recovery of the possession of the suit schedule property from the defendants? 7. Whether the plaintiffs are entitled for mesne profits? If so, to what amount? 8. What decree or order? ADDITIONAL ISSUES 1. Whether the plaintiffs prove that Smt.Saroja has executed the power of attorney in favour of Sri. Puttaraju to give him authority to execute the sale deed dated 29.3.2005? 2. Whether the plaintiffs prove the identity and existence of the suit schedule property? 3. Whether the suit of the plaintiffs for the relief of declaration is barred by limitation?” 8. The plaintiffs in order to prove his case examined Plaintiff No.1 as PW-1 and one witness Smt.Jyothi V. Pai, as PW-2 and produced 27 documents and marked as Exhibits-P1 to P27. Second defendant was examined as DW-1 and one witness by name Suresh 9 RFA No.889 of 2012 DW-2 and produced as many as 77 documents marked as Exhibits- D1 to D77. The trial court after hearing the parties to the suit, proceeded to dismiss the suit answering issue Nos.1 to 7 and additional issue No.1, against the plaintiffs, however, so far as identity of the property and plea of limitation, were held in negative. 9. The trial court while dismissing the suit reasoned that GPA executed by P.Saroja in favour of Puttaraju her husband was not in accordance with Section–33 of the Indian Registration Act, 1908 (for short ‘Act of 1908’), in view of the same, V.Puttaraju has no authority to execute sale deed and held that the sale deed executed in favour of the plaintiffs is not a valid sale deed, as such, declined to hold that the plaintiffs are the owners of the suit schedule property. In view of the said findings, the trial court proceeded to answer all the issues against the plaintiffs. 10. That apart, the trial court in the judgment at para–26 held that there are no documents produced by the plaintiffs, such as the tax paid receipts or other incidental documents to prove the possession over the suit schedule property. There was a suit in O.S.No.1481/1999 filed by P.Saroja against second defendant for permanent injunction, which came to be dismissed for non-prosecution on 12.12.2005, on that proceeded to hold that the 10 RFA No.889 of 2012 vendor of the plaintiffs failed to establish the possession over the suit schedule property. Hence, the trial court proceeded to hold that the plaintiffs were not in possession of the suit schedule property. 11. That part, the Trial court proceeded to hold that the sale deed executed in favour of the defendant No.2 by the deceased defendant No.1 as a valid sale deed, in view of the document dated 06.12.2010-the confirmation deed at Exhibit-D21 said to have been executed by P.Saroja the vendor of the plaintiffs in favour of defendant No.2 and proceeded to hold that the defendant No.2 is the owner and in possession of the property. 12. Further, the trial court has observed that the plaintiffs have not examined either P.Saroja or V.Puttaraju or produced the original GPA. In that eventuality, the plaintiffs failed to prove the sale deed executed in their favour by their vendor P.Saroja and proceeded to dismiss the suit in its entirety. It is this judgment and decree passed by the trial court, called in question in the above appeal. 13. Heard Sri.B.N.Anantha Narayana, learned counsel for the appellants, Ms.Sruti Chaganti, learned counsel appearing for Sri.B.Siddeshwara, learned counsel for respondent No.5. 11 RFA No.889 of 2012 Respondent Nos.1 to 4 though served did not appeared and contested the matter. 14. Sri.Anantha Narayana, vehemently contended that the findings of the trial court on additional issue No.1, which has led the trial court to answer all issue nos.1 and 7 against the plaintiffs, is not sustainable in law. The trial court on misreading of Section–33 of Act of 1908 held that for short of compliance under Section– 33(i)(a) of the Act 1908, the GPA is not valid. As such, has come to a conclusion that if a person is appointed by the Principal, as his GPA holder to present the sale deed for registration, such power of attorney must be executed by the Principal and authenticated before the Registrar or Sub-Registrar, within whose jurisdiction the Principal resides subject to proviso to Section–33 of the Act of 1908. The trial court observed that the GPA is executed before the Notary Public and not before the Registrar or Sub-Registrar in whose jurisdiction P.Saroja was residing. Further, the trial court has committed a serious error in holding that the plaintiffs have not established that P.Saroja is coming under anyone of the proviso provided to Section-33 of Act of 1908. The trial court finding that the GPA executed by P.Saroja in favour of her husband is not valid or authenticated document, in that view of the matter, a person claiming under the GPA has no authority to execute sale deed at 12 RFA No.889 of 2012 Exhibit-P25 and present the same before the Sub-Registrar for registration, is unsustainable in law. 15. He has also contended that the further finding of the trial Court erroneous, that the GPA ought to have been executed before the Sub-Registrar, in so far case on the hand is concerned is against Section–33 of the Act 1908. He has further contended that Section- 33 of the Act 1908 would come into picture only when a person presents a sale deed executed by the executant, as GPA holder for execution which requires authentication. However, in the case on hand the GPA holder himself is an executant as such Section-33 of Act 1908 has no application. 16. The learned counsel also submitted that the trial court having answered additional issue no.1 against the plaintiffs proceeded to dismiss the suit holding that the plaintiffs failed to prove their title and they are not in possession of the property. The trial court fell in error in holding so on the premise of dismissal of the suit for non-prosecution filed by the vendor of the plaintiffs against defendant No.2 and others. He has further submitted that the trial court fell in error to hold that the defendant has purchased the property in the year 1980 and is in possession of the property. 13 RFA No.889 of 2012 The reasons assigned by the trial court for dismissing the suit are wholly erroneous and not in accordance with law. 17. Sri.Ananthanarayana relied on Section–65 of Indian Registration Act to contend that once a document is presented for registration, the Registering Officer having endorsed and issued a certificate, amounts due execution of the deed. He has further relied on Section-85 of Indian Evidence Act to contend that it raises a presumption that the Court shall presume that every document purporting to be a power of attorney and to have been executed and authenticated, is deemed to have been executed and authenticated by a Notary Public and sought to allow the appeal. 18. Per contra, Ms.Shruthi supporting the judgment passed by the trial court would contend that the Defendant No.2 has purchased the property in the year 1980 from Ramaswamappa, who is none other than the son of Muniswamappa owner of the property and from the date of purchase of the suit property, defendant No.2 is in possession of the property and he has constructed a shed and living along with his family. In the suit filed by his vendor, against the vendors’ vendor of the plaintiff by name Sri.K.A.L.Ganesan, the trial court in O.S.No.3448/1980, held that some of the plots in the suit schedule property admittedly has been sold by the plaintiff 14 RFA No.889 of 2012 therein to others at that time, this shows that the defendant No.2 purchased suit schedule property in 1980 and in possession of the same. She has further contended that the said Sri.K.A.L.Ganesan has stated that the BDA has acquired the land and the said Sri.K.A.L.Ganesan had approached the BDA for reconveyance of the site in his favour, which he has purchased from Muniswamappa. In the absence of reconveyance effected by BDA in favour of Sri.K.A.L.Ganesan his LRs have no valid right, title or interest or possession to convey the same in favour P.Saroja – the vendor of the plaintiffs. 19. She has further stated that the defendant No.2 subsequent to purchase of the property in the year 1980 changed the katha in his name and was paying the taxes to the concerned authority and he got sanctioned plan for construction of the building, which clearly shows the possession of defendant No.2 on the property. That apart, the GPA said to have been executed by Smt.Saroja in favour of V.Puttaraju i.e., her husband falls short to compliance of Section–33 of Act of 1908, as such, the said GPA holder has no right to execute a sale deed in favour of the plaintiffs. The plaintiffs have miserably failed to produce the original GPA before the Court. The trial court properly appreciated the facts and held that no right has been conveyed under the sale deed in favour 15 RFA No.889 of 2012 of plaintiffs. The plaintiffs have failed to prove their title and possession over the suit property. The Police complaint lodged by the plaintiffs is only an afterthought to create document. She has stressed upon the confirmation deed by P.Saroja dated 06.12.2010 in favour of defendant No.2 to contend that P.Saroja has confirmed that the suit property is in possession of defendant No.2 and P.Saroja has no manner of right, title or interest over the suit schedule property and she has not executed any conveyance, much less GPA in favour of anybody in respect of the suit schedule property. 20. She has also stated that the plaintiffs have not sought for any relief on the confirmation deed. The defendant No.2 along with his ailing grandchild is residing in the property. It is the only property of the defendant No.2, which he has purchased with his hard earned money and invested all his blood and sweat for the development and construction of the property. In view of the same, the trial court rightly dismissed the suit, which does not call for any interference at the hands of this Court and sought to dismiss the appeal with cost. 16 RFA No.889 of 2012 21. Having heard the learned counsel for the parties, perused the entire record placed before the trial court, as well as the appeal papers, the points that arise for our consideration are as follows: i) Whether the trial court is right in answering the additional issue no.1 against the plaintiffs? ii) Whether the trial court is right in answering all the issues Nos.1 to 7 against the plaintiff on the basis of answer to Additional issue No.1? iii) Whether the trial court is right in holding that the defendant No.2 has proved title to the property by means of sale deed of the year 1980 as well as possession over the property? iv) Whether the judgment and decree passed by the trial court suffers from infirmities which require interference at the hands of this Court? 22. Our answers to all the above points for consideration are as follows: (i) to (iii) in Negative & (iv) in Affirmative for the following reasons: 23. Before dwelling upon the issues answered by the trial court, it is apt to reproduce the provisions of Sections–32 and 33 of Act 1908: 17 RFA No.889 of 2012 “Section 32 - Persons to present documents for registration. Except in the cases mentioned in [sections 31, 88 and 89] every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office, (a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or (b) by the representative or assign of such person, or (c) by the agent of such person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned. Section 33. Power-of-attorney recognizable for purposes of section 32. (1) For the purposes of section 32, the following powers- of-attorney shall alone be recognised, namely, (a) if the principal at the time of executing the power-of- attorney resides in any part of [India] in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub- Registrar within whose district or sub-district the principal resides; (b) if the principal at the time aforesaid [resides in any part of India in which this Act is not in force] a power-of- attorney executed before and authenticated by any Magistrate; 18 RFA No.889 of 2012 (c) if the principal at the time aforesaid does not reside in [India] a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, [Indian] Consul or Vice-Consul, or representative of the Central Government: Provided that the following persons shall not be required to attend at any registration office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely, (i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend; (ii) persons who are in jail under civil or criminal process; and (iii) persons exempt by law from personal appearance in Court 24. Part-VI of Act 1908 deals with the presentation of the documents for registration. Sections–32 and 33 of the Act 1908 forms Part of No.IV, which deals with persons to present document for registration and power of attorney. 25. A conjoint reading of Sections–32 and 33 clearly suggests that the words used manifestly clear that a person who has executed document if presents the said document through a GPA requires compliance of Section–33, such a GPA, under which the person claiming to be an Attendant of the Principal is presenting the document executed by the Principal for registration shall be 19 RFA No.889 of 2012 executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides. 26. We have been called in this appeal to answer a very short but a legal point of interpretation of Sections–32(c) and 33 of Act of 1908. 27. In the case on hand, as the GPA holder himself is the executor of sale deed Section–33(1)(a) has no applications, as the act coming within the purview of Section-32(a) of Act of 1908. Our view gains strength and support by law declared by the Hon’ble Apex Court in Civil Appeal No.46971, decided on 29.07.2009, wherein the Hon’ble Apex Court dealing with Sections-32 and 33 of Act 1908 at paragraph Nos.27 to 31 has held as under: “27. In view of the aforesaid legal position, we are of the considered view that the law laid down by the Andhra Pradesh High Court in D. Sardar Singh v. Seth Pissumal Harbhagwandas Bankers [AIR 1958 AP 107] and the decision of the Calcutta High Court in Abdus Samad v. Majitan Bibi [AIR 1961 Cal 540] with regard to the interpretation of Sections 32 and 33 of the Act is not the correct legal position. 28. In the facts of the present case, it is quite clear that Indra Kumar Halani, was given the full authority by Nandlal Tantia under the power of attorney to transfer the suit property and to execute the necessary document. It is an accepted position that the said document had been 20 RFA No.889 of 2012 executed by Indra Kumar Halani in the name and on behalf of Nandlal Tantia thereof. Therefore, for the purposes of registration office under Section 32(a) of the Act Indra Kumar Halani is clearly the “person executing” the document. Therefore, it follows that the said sale deed which was executed and authenticated by Indra Kumar Halani could be presented for registration by him. We are of the considered view that Indra Kumar Halani acted in the aforesaid manner mandated under Section 32(a) of the Act. 29. The object of registration is designed to guard against fraud by obtaining a contemporaneous publication and an unimpeachable record of each document. The instant case is one where no allegation of fraud has been raised. In view thereof the duty cast on the registering officer under Section 32 of the Act was only to satisfy himself that the document was executed by the person by whom it purports to have been signed. The Registrar upon being so satisfied and upon being presented with a document to be registered had to proceed with the registration of the same. 30. The High Court held that since the power of attorney was not a registered document, Indra Kumar Halani, was not authorised to execute and present the sale deed before the Sub-Registrar for registration. It was, therefore, held by the High Court that no right and title had passed to the plaintiff on the basis of the aforesaid sale deed. 31. The High Court also held that upon a conjoint reading of Section 32, Section 33(1)(a) and Section 34 of the Act, 21 RFA No.889 of 2012 it was difficult to conclude that Indira Kumar Halani became the executant by himself on the basis of the power of attorney which was neither executed nor authenticated in the manner provided under Section 33(1)(a) of the Act so as to enable him to present the sale deed for registration in compliance with the provisions of Section 32(a) of the Act.” 28. In view of the law declared by the Hon’ble Apex Court, it is manifestly clear that only when a document executed by the Principal is to be presented by the Agent as contemplated under Section 32(c) of the Act of 1908, the provisions of Section 33(1)(a) of the Act, 1908 applies, however, where the deed is executed by the Agent under the GPA, for the Principal, who signs, appears and presents the deed or admits execution before the Registering Officer, Section 32(a) comes into play as such, Section 33(1)(a) has no application as it is not a case coming within the purview of Section 32(c) of the Act of 1908. The application of Section 33(1)(a) of the Act of 1908 would come into force only in cases where presentation is in terms of Section 32(c). In other words, where the person executing the document cannot present it and if the said document is to be presented by an Agent under a GPA, the provisions of Section 33(1)(a) of the Act, 1908 gets attracted and only in those cases, the said Power of Attorney has to be necessarily 22 RFA No.889 of 2012 executed and authenticated in the manner provided under Section 33 (1) (a) of the Act of 1908. 29. In view of the settled position of law supra, coming to the case on hand, the trial Court while answering additional issue No.1 held that the plaintiffs have failed to prove that their vendor by name Smt.P.Saroja has executed Power of Attorney in favour of her husband Sri.V.Puttaraju authorizing him to execute the sale deed dated 29.03.2005, on the premise that the said Power of Attorney is not executed in terms of Section 33 of the Act, 1908. The trial Court held that as per Section 33(1)(a) of the Act, 1908, if a person is appointed by the Principal as his/her Power of Attorney holder to present the sale deed for registration, such Power of Attorney must be executed by the Principal before and authenticated by a Sub- Registrar or Sub-Registrar within whose jurisdiction, the Principal resides. The trial Court at paragraph Nos.19 and 20 has held that the Power of Attorney dated 27.09.2000 executed by Smt.P.Saroja in favour of her husband Sri.V.Puttaraju was before a Notary Public and not before a Registrar or Sub-Registrar in whose jurisdiction Smt.P.Saroja was residing. Further, the trial Court was of the opinion that the plaintiffs have not made out the case that Smt.P.Saroja falls in any one of the categories provided under the proviso to Section 33 of the Act, 1908 so as to exempt her from 23 RFA No.889 of 2012 appearing before the Sub-Registrar to execute the GPA in favour of Sri.V.Puttaraju and reached to the conclusion that GPA executed by Smt.P.Saroja in favour of Sri.V.Puttaraju authorizing him to sell suit schedule property is not valid and authenticated document. In that view of the matter held the GPA does not empower the said Sri.V.Puttaraju to execute the sale deed at Ex.P.25 and present the same before the Sub-Registrar for registration in favour of plaintiffs. On the basis of such interpretation, the trial Court proceeded to hold that the plaintiffs have failed to prove that Smt.P.Saroja has executed Power of Attorney in favour of Sri.V.Puttaraju, authorizing him to execute the sale deed dated 29.03.2005 and held that the sale deed is not valid in the eye of law and answered the additional issue No.1 against the plaintiffs. 30. The said finding of the trial Court, in view of settled position of law by the Hon'ble Apex Court in the case of Rajni Tandon supra, is alien to the language used and interpretation of Sections 32 and 33 of the Act of 1908 by the trial court is misplaced and against the intention of the legislature with which, the said provisions are placed in the enactment. The trial Court has misread as well as misinterpreted Sections 32 and 33 of the Act, 1908. The words used in Section 32 (a) of the Act, 1908 manifestly and lucidly, suggest that it is by a person executing and clause (c) starts with 24 RFA No.889 of 2012 wordings by the agent of such person, (means person executing) as has been interpreted by the Hon'ble Apex Court supra. 31. In the case on hand, the Power of Attorney holder himself has executed the sale deed on behalf of a Principal, signs appears and presents the deed and admits execution of the sale deed dated 29.03.2005 at Ex.P.25 before the Sub-Registrar. In these circumstances, the finding given by the trial Court while answering additional issue No.1 is against the provisions contained in the statute. The trial Court while answering additional issue No.1 had formed an opinion that the GPA at Ex.P.22 is only a copy of GPA and in the absence of convincing material declined to accord, presumption as contemplated under Section 85 of the Indian Evidence Act, 1872 as contended by the plaintiffs. It is on record that at an earlier point of time, the plaintiffs filed an application seeking to call for records in the suit filed by their vendor against the defendant No.2 and others wherein, the original GPA has been produced. The application came to be dismissed with an observation that the said document is not a crucial document so as to decide the lis/controversy between the parties. The trial Court is of the opinion that in view of additional issues being framed, the plaintiffs have failed to produce either original or laid foundational facts for producing secondary evidence as contemplated under Section 65 of 25 RFA No.889 of 2012 the Indian Evidence Act, 1872. The trial Court is of the opinion that the Ex.P.22, the certified copy of GPA issued under Right to Information Act by the BBMP in favour of plaintiffs could not be considered as it was copy of the photocopy. Hence, observed that the Ex.P.22 cannot be said to be true copy of a original GPA dated 27.09.2000. Therefore, Ex.P.22 is inadmissible in evidence and no evidentiary value could be attached to it. The trial Court failed to consider that an application was earlier moved stating that the plaintiffs are not in custody of the original GPA and they were given only a copy of the GPA and they have tried to obtain certified copy of the original produced by said Smt.P.Saroja in O.S.No.6073/1998. The application was dismissed on the premise that the document was not necessary for adjudicating the real controversy between the parties. As noticed, the copy of the GPA produced now before the trial court was the copy produced before the BBMP by GPA holder in connection with change of khatha in favour of Smt.P.Saroja, that was issued under RTI Act by the BBMP. The competent authority of the BBMP of the concerned Department issued certified copy of the GPA under RTI. Though the defendant No.2 has denied the execution of GPA by Smt.P.Saroja on the ground of confirmation deed alleged to have been executed by Smt.P.Saroja wherein, she has stated that she has not executed any document either by way of 26 RFA No.889 of 2012 conveyance or a GPA but not examined the author of the said confirmation deed to substantiate his claim that there is no GPA executed by Smt.P.Saroja. That apart, it is also borne out from the record that the GPA holder of Smt.P.Saroja has been examined as PW-1 in the suit being O.S.No.6073/1998. 32. That apart, the case of the plaintiffs is based on registered sale deed executed in terms of law. The plaintiffs have produced original sale deed executed in their favour as well as the original sale deed executed by the vendor’s vendor as a mother document to the sale deed. As could be seen from the records, in the suit filed by Smt.P.Saroja, her husband is examined as PW-1 as GPA holder of Smt.P.Saroja. Considering all these records and the explanation offered by the plaintiffs by filing an application for production of copy of GPA at the earlier point of time clearly shows that they have complied with the requisites of Section 65 of Indian Evidence Act, 1872 and laid a proper foundation for producing secondary evidence of GPA. The trial Court only on the premise that the GPA is not valid in terms of Section 33 of the Act, 1908, had proceeded to hold that the copy of the GPA cannot be admissible in evidence which is clear from paragraph No.16 of the judgment wherein, the trial Court has stated as under:- 27 RFA No.889 of 2012 “16. Even accepting for a moment that the said P.Saroja has executed GPA as per Ex.P.22, but in my opinion, the said GPA is not valid in view of Sec.33 of Registration Act.” As such, the reason stated and the finding given by the trial Court on additional issue No.1 is unsustainable in law and requires to be set aside. 33. The trial Court after giving a finding against the plaintiffs on issue No.1 without much deliberation on other issues has held that the plaintiffs have not derived valid right or title to suit schedule property under the sale deed at Ex.P.25, proceeded to conclude that the plaintiffs have failed to prove the ownership over the suit schedule property. Further, proceeded to hold while answering issue No.2, that as the sale deed at Ex.P.25 does not confer any right or title to the plaintiffs in respect of the suit schedule property so also is of no help to establish the possession over the suit schedule property by the plaintiffs. Further reasoned that the plaintiffs have not produced any documents such as tax paid receipts, khata extract in respect of suit schedule property to prove the vendor’s as well as their possession over the suit schedule property. There is one more reason given by the trial Court to hold that the plaintiffs are not in possession is that the earlier suit filed by the vendors of the plaintiffs i.e., Smt.P.Saroja against the defendant No.2 and others in O.S.No.1481/1999, came to be 28 RFA No.889 of 2012 dismissed for non-prosecution on 12.12.2005, which clearly for the trial court to hold that said Smt.P.Saroja had failed to establish her possession over the suit schedule property. Therefore, the trial court proceeded to hold that as the vendor of the plaintiffs, Smt.P.Saroja was not in possession of the suit schedule property, as such, the plaintiffs are also not in possession of the property. That apart, the trial Court proceeded to hold that the defendant No.2 purchased the property under a sale deed dated 13.02.1980 executed by original defendant No.1 and in possession of the suit schedule property under the said sale deed ever since 1980. The trial Court further swayed on the fact that defendant No.2 has produced revenue documents such as tax paid receipts at Exs.D.22 to D.25, three khata certificates at Exs.D.35 to D.37 and PID number allotted to the property. The trial Court on the said documents held that since the plaintiffs failed to establish their ownership over the suit schedule property, as they have not derived any right or title under the sale deed dated 29.03.2005, they have failed to prove their possession and the defendant No.2 under sale deed dated 13.02.1980 is in possession of suit schedule property which is corroborated by evidence of DW-2 and proceeded to answer all the issues against the plaintiffs. A perusal of the documents produced by defendant no.2 do not correspond with the suit 29 RFA No.889 of 2012 schedule property and some are subsequent to filing of the suit, as such same have no evidentiary value to prove the case of the Defendant No.2. 34. As could be seen from the records, in the suit filed by the vendor of the plaintiffs, as per the order sheet pertaining to O.S.No.1481/1999 at Ex.P.15 clearly depicts that an interim order by way of temporary injunction was issued against defendant No.2, their agents or representatives restraining from entering upon the suit schedule property otherwise interfering with the plaintiff’s (Smt.P.Saroja) peaceful possession and enjoyment of the schedule property on 22.02.1999 till the next date of hearing. The said order of the trial Court was extended from time to time and on 21.07.2001, the interim order granted was extended till further orders. The said order having been not challenged attained finality, which clearly shows that the defendant No.2 is not in possession of the property. Though the suit came to be dismissed for non- prosecution, it is only after execution of sale deed in favour of plaintiffs through GPA holder of Smt.P.Saroja on 29.03.2005. This clearly shows that after execution of the sale deed since the vendor of the plaintiffs has lost her interest in the property, the suit was not proceeded further. That apart, under the very same suit, husband of Smt.P.Saroja has been examined as PW-1 as Power of Attorney 30 RFA No.889 of 2012 holder executed by Smt.P.Saroja in his favour. The trial Court has failed to consider these crucial documents which are produced and marked on behalf of the plaintiffs and proceeded to hold that in view of dismissal of suit for non-prosecution, the plaintiffs have failed to establish the possession over the suit schedule property. The said finding of the trial Court is appalling. It is further on record that the vendor of the defendant No.2 earlier filed a suit seeking for specific performance against the vendor’s vendor of the plaintiffs by name K.A.L.Ganeshan in O.S.No.3448/1980. In the said suit, the vendor of the defendant No.2 i.e., original defendant No.1 had clearly stated that there was a sale deed in the year 1963 executed by his father in favour of K.A.L.Ganeshan in respect of properties including suit schedule property. Though he has taken contention that the said sale deed was a nominal sale deed and defendant had agreed to reconvey, the same but he has failed to prove the said fact before the trial Court. The trial Court in the suit supra, has held that the claim of defendant No.1 is highly impermissible and dismissed the suit. This clearly shows that there was a sale deed executed in favour of plaintiffs’ vendor’s vendor i.e., K.A.L.Ganeshan by the father of defendant No.1 under whom the defendant No.2 is claiming right over the suit schedule properties on the basis of sale deed dated 13.02.1980. Though the learned counsel appearing for 31 RFA No.889 of 2012 the defendant No.2 has contended that there was an observation by the trial Court in the suit supra filed by defendant No.1 against K.A.L.Ganeshan that during the pendency of the suit, the plaintiff i.e., defendant No.1 herein sold several sites to several persons. However, there is nothing to suggest in the entire judgment to show the number of properties which were sold and the names of the particular persons to whom the defendant No.1 said to have sold the properties. 35. Even if it is construed that there is a sale deed executed by original defendant No.1 in favor of defendant No.2, the same is hit by the principle of Nemo dat quod non habet i.e., no one can pass a better title than what he has. Admittedly, the property was belonging to the father of original defendant No.1. The father of original defendant No.1 way back in the year 1963 sold the properties along with schedule property in favour of K.A.L.Ganeshan and put him in possession of the property which was even admitted in the suit by Defendant no.1 supra. The contention of the learned counsel for the defendant No.2 that under sale deed executed by the original defendant No.1, the defendant No.2 has got a title to the property. It is germane to mention here that once the suit schedule property had already been sold by the father of the original defendant No.1 in favour of K.A.L.Ganeshan in the year 1963 by 32 RFA No.889 of 2012 way of registered sale deed, there is no property available in the hands of original defendant No.1 to convey the same in favour of defendant No.2. 36. The Hon'ble Apex Court in the case of State of Andhra Pradesh and others vs. Star Bone Mill and Fertilizer Company reported in (2013) 9 SCC 319 has held that, no person can grant a title better than he himself possess. In view of the document placed on record, the earlier sale deed in favour of vendor’s vendor of the plaintiffs in the year 1963, the interim order operating against defendant No.2 in the suit by P.Saroja Supra clearly postulates that the sale deed said to have been executed by the original defendant No.1 in favour of defendant No.2 has no semblance of validity as there was no property available in the hands of original defendant No.1 in respect of suit schedule property to convey the same in favour of defendant No.2. In view of the interim order granted in the suit filed by the vendor of the plaintiffs against the defendant No.2 from interfering into the possession and enjoyment of the property which was subsisting even after execution of the registered sale deed in favour of plaintiffs, though ended in dismissal for non- prosecution, clearly shows that the defendant No.2 was not in possession of the property. 33 RFA No.889 of 2012 37. It is germane to mention here that the defendant No.2 by way of amendment to the written statement has produced a confirmation deed said to have been executed by Smt.P.Saroja, to contend that the vendor of the plaintiffs whereby, confirmed that the defendant No.2 is the owner of the property and he is in possession of the property from the year 1980 from the date of sale deed executed in his favour and the said Smt.P.Saroja has admitted that she not in possession of the property and she has not executed any conveyance much less GPA in favour of any person. Admittedly, this document was subsequent to the filing of the suit. The suit is filed in the year 2007. The document is executed on 06.12.2010. That apart, the author of the said document is not examined. Though the defendant No.2 has denied the title of the plaintiffs in the written statement but in the cross-examination, he has pleaded ignorance and there is no specific statement of denial of the title of plaintiffs by defendant No.2. This clearly goes to show, that the defendant No.2 by relying on confirmation deed dated 06.12.2010 said to have been executed in his favour, to substantiate his claim of sale deed in the year 1980 and possession, is nothing but an after thought and amounts to plugging the holes, in order to overcome the infirmities in the title as well as possession claimed by defendant No.2, the conduct of defendant No.2 is self explanatory to hold that 34 RFA No.889 of 2012 the defendant No.2 has not approached the Court with clean hands. No doubt, it is true that the plaintiffs have to prove their case on their own grounds and not on the weakness of the defendant No.2. But in the peculiar facts and circumstances of the case, the documents produced by plaintiffs clearly shows that the plaintiffs have established their title and earlier possession over the property as on the date of filing of the suit. Even the perusal of Ex.D.21 i.e., confirmation deed produced by defendant No.2 clearly shows that Rajathi and others (LRs of K.A.L.Ganeshan), the vendors of Smt.P.Saroja were stated to be the absolute owners of the property. The unnumbered paragraph in page No.2 of the deed is extracted for easy reference:- “Whereas Sri Rajathi and others were the absolute owners of the Property bearing Old Site No.10 in Survey No.52/3, New Site No.36, 5th Main Road, Sarakki Village, Anjaneya Temple Street, Bangalore, East to West : 40 feet, North to South : 30 feet, which are more fully described in the Schedule hereunder and herein after referred to as the Schedule Property.” 38. There is one more reason for this Court hold that the confirmation deed dated 06.12.2010 has no legs to stand, being that, the Executant of the document stated supra has no right in law to confirm either the title or the possession over defendant No.2 as there was a sale deed in 2005 executed through her GPA holder in 35 RFA No.889 of 2012 favour of the plaintiffs. The defendant No.2 for the reasons best known to him has not examined the author of said confirmation deed. He has even stated that he is not aware of whereabouts of said Smt.P.Saroja. He met her, in the year 2009 or 2010, only one and half month earlier to executing the confirmation deed, near Konakunte Cross. Apart from that, he has clearly admitted that he has not enquired the author as to where she resides at the time of execution of Ex.D.21. The evidence of DW-2 is not helpful to defendant No.2 to establish his rights as there are ample admissions and contradictions in his cross-examination against the statement given in examination-in-chief. The trial Court has failed to consider these crucial facts and documents in support of the claim and in a casual manner comes to a conclusion only on the premise of application of Section 32 and 33 of the Act 1908 holding that the plaintiffs have failed to prove their title and possession over the suit schedule property whereas the defendant No.2 has proved his title and possession over the suit schedule property. The said finding of the trial Court in the teeth of the documents supra, is unsustainable and liable to be set aside. Accordingly, we answer issue Nos.1 to 7 in favor of the plaintiffs. 39. As could be seen from records, earlier the plaintiffs filed bare injunction suit against the defendant No.2 and on subsequent 36 RFA No.889 of 2012 developments as they have lost their possession over the suit schedule property, have filed an application seeking to amend the suit to include the prayers of declaration as well as possession of the property. Though on the contention of the defendant No.2, the trial Court has framed additional issue No.3 on the point of limitation, however, the said issue was answered against the defendant No.2 by the trial Court holding that the defendant No.2 has not explained as to how the suit for relief of declaration of plaintiffs’ title and possession is barred by time. This finding on additional issue No.3 is not challenged by defendant No.2. 40. Though Ms.Sruthi Chaganti, learned counsel has submitted that the point of limitation is a question of law and even in the absence of any appeal or cross-examination, under Section 3 of the Limitation Act, it is the duty of the Court to consider the point of limitation even in the absence of any defense to that effect. In the case on hand, on the basis of the contentions raised in the additional written statement, an additional issue came to be framed on the point of limitation. However, in view of non-explanation by defendant No.2 with cogent evidence to show that the suit for relief of declaration and possession sought by the plaintiffs barred by law, the trial Court answered the said issue against the defendant No.2. In the present case, question of limitation being a mixed-question of 37 RFA No.889 of 2012 law and fact, the defendant No.2 has failed to discharge the burden casted on him by materials and pleadings to show as to how the reliefs claimed by the plaintiffs for declaration and possession are barred under law. In these circumstances, it is very hard to accept the contention of the learned counsel for the defendant No.2. Ms.Sruthi Chaganti, learned counsel alternatively submitted that except suit schedule property, the defendant No.2 is not having any other property. He is age old and residing along with his ailing grand child in the suit schedule property. Considering his long possession even from the date of suit, Ms.Sruthi Chaganti submits that equity has to be considered in favour of defendant No.2. It is settled position of law that, a person who claims equity must do equity. Equity cannot be extended to a person whose conduct disentitles him from claiming said equity. We have already observed regarding the conduct of defendant No.2 in the foregoing paras, as such in the facts and circumstances of the present case the defendant No.2 is not entitled for any equity claimed by him at the hands of this Court. 41. Be that as it may, Sri.B.N.Anantha Narayana, learned counsel for the plaintiffs by taking this Court through the caveat filed by the defendant No.2 before the trial Court as well as appeal filed before this Court calling in question the interim order granted 38 RFA No.889 of 2012 against him from taking any construction on the suit schedule property as well as the affidavit filed seeking for stay of the said order has shown that he is residing at property No.141/2 Manjunatha Road, II Block, Thyagarajanagar, Bengaluru – 560 028 and has submitted that the contention of learned counsel for the defendant No.2 that except the property in dispute has no property as claimed does not hold any water. We find force in the submission of learned counsel for the appellants. 41. For the reasons stated supra, we hold that the trial Court committed serious error in answering all the issues against the plaintiffs thereby non-suiting the plaintiffs on mis-interpretation of Sections 32 and 33 of Act of 1908 and the judgment suffers from perversity and unsustainable in law. In that view of the matter, the finding of the trial Court against the plaintiffs are liable to be set aside. 42. The findings on issue Nos.1 to 7 against the plaintiffs are set aside and the said issues are answered in favour of the plaintiffs. Accordingly, point Nos.1 to 3 are answered in favour of plaintiffs and against defendant No.2. 43. In view of our findings and the reasons stated supra, as the judgment and decree passed by the trial Court suffers from 39 RFA No.889 of 2012 perversity and blatant illegality, same requires interference at the hands of this Court. The trial Court has committed serious error in answering the substantive right claimed by the plaintiffs on the immovable property. Therefore, it requires to be corrected at the hands of this Court. Accordingly, point No.4 answered in affirmative and we proceed to pass the following:- ORDER i) The appeal succeeds. ii) The judgment and decree dated 17.04.2012 in O.S.No.8820/2007 is set aside. Consequently, the suit filed by the plaintiffs is decreed with cost. iii) The plaintiffs are declared as absolute owners of the suit schedule property. iv) The defendant No.2 is directed to vacate and hand over the possession of the suit schedule property after removing structures thereon at his own cost within three months. The plaintiffs are entitled for mesne profits from the date they have lost their possession till possession is delivered in their favour, in a separate enquiry as contemplated under law. v) In the event, the defendants failed to vacate and hand over the possession, the plaintiffs are at liberty to take 40 RFA No.889 of 2012 the possession of the suit schedule property in the manner known to law. vi) In the facts and circumstances of the case, costs made easy. Sd/- (S.G.PANDIT) JUDGE Sd/- (T.M.NADAF) JUDGE JJ – Para Nos.1 to 28 MH – Para Nos.27 to 45