- 1 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 95 OF 2008 (DEC) BETWEEN: 1. T GOPAL S/O LATE M THIMMAPPA AGED ABOUT 47 YEARS R/O SRIGANDADAKAVALU, SUNKADAKATTE VISHVANEEDAM POST, YESHWANTHPUR HOBLI BANGALORE NORTH TALUK, BANGALORE-79 …APPELLANT (BY SRI. B. RAMESH, ADVOCATE VIDE ORDER DATED 03.04.2025, I.A.1/2013 FOR IMPLEADING APPELLANT NO.2 IS DISMISSED) AND: 1. SRI ABDUL KAREEM SAB AGED ABOUT 62 YEARS R/O MUNIKARIYAPPA COMPOUND AGRAHARA DASARAHALLI BANGALORE-23 DIED ON 27.07.2012, LRS BROUGHT ON RECORD VIDE COURT ORDER DATED 07.01.2013 Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 1A. SAMULLA S/O. LATE ABDUL KAREEM SAB AGED ABOUT 48 YEARS 1B. ZABIYULLA S/O. LATE ABDUL KAREEM SAB AGED ABOUT 43 YEARS 1C. MOHAMMED RAFIQ ULLA S/O. LATE ABDUL KAREEM SAB AGED ABOUT 43 YEARS ALL ARE RESIDING AT NO.2, 4TH MAIN, 2ND CROSS MUNIKARIYAPPA COMPOUND MAGADI ROAD AGRAHARA DASARAHALLI BENGALURU - 560 023 2. CITY MUNICIPAL COUNCIL PEENYA DASARAHALLI VILLAGE OFFICE PEENYA DASARAHALLI MAIN ROAD BANGALORE REP. BY ITS PRESIDENT 3. SRI N PRABHAKAR S/O LATE NAGAPPA AGED ABOUT 43 YEARS R/O NO.9, 9TH MAIN MEI COLONY BANGALORE-58 4. SMT S V INDRAMMA W/O P N SIDDARAJU AGED ABOUT 43 YEARS R/A PURADAHALLI VILLAGE - 3 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 KOLALA POST, KORTAGERE TALUK TUMKUR DISTRICT 5. SRI AMIRUDDIN S/O MAHABOOB SAHEB AGED ABOUT 55 YEARS R/O UMESH COMPLEX, SMT THIMMAKKA LAKKANA AND THEIR GRAND CHILDREN KALYANAMANTAPA VRUSHABHAVATI NAGAR, KAMAKSHIPALYA BANGALORE-79 6. SMT NAGAINTAJ W/O NMOHAMMAD BALG AGED ABOUT 43 YEARS R/O NO.145, CAR POLICE QUARTERS, MYSORE ROAD BANGALORE-80 7. SMT GEETHA D SRINIVAS W/O SRINIVAS NAIRY AGED ABOUT 61 YEARS R/A NO.114, HMT LAYOUT, 3RD CROSS,15TH MAIN, GOKULA IST STAGE IST PHASE, BANGALORE-54 …RESPONDENTS (BY SRI. C.S. PRASANNA KUMAR, ADVOCATE FOR R1(A TO C) SRI. MANJUNATHA K.V., ADVOCATE FOR SRI. RAJESWARA P.N., ADVOCATE FOR R4 SRI. B.V. KRISHNA, ADVOCATE FOR R7 R2, R3, R5 AND R6 ARE SERVED) - 4 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1 CPC AGAINST THE ORDER DT.11.12.07 PASSED IN O.S.NO.8911/97 ON THE FILE OF THE IX ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT 1. Heard Sri. B. Ramesh, learned counsel for the petitioner. 2. Unsuccessful plaintiff is the appellant, challenging the validity of the judgment and decree passed in O.S. No.8911/1997 on the file of Additional City Civil Judge, Bangalore. 3. Parties are referred to as plaintiff and defendant for the sake of convenience as per their original rankings in the Court below. - 5 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 4. A suit came to be filed by the plaintiff with the following reliefs in respect of the following immovable properties. PRAYER: (a) declaration declaring that Power of Attorney in favour of the Ist defendant dated 4.12.1987 as fabricated and forged and therefore null and void. (b) For declaration declaring that the power of Attorney dated 06:12:1987 in favour of the first defendant as forged and fabricated and therefore null and void. (c) For permanent injunction restraining the first defendant or his agents for alienating any or some of or all sites shown in the suit schedule property. (d) For permanent injunction restraining the second defendant in issuing any permission or otherwise granting sanction of plan etc., relating to any or some of or all the sites shown in the suit schedule property. (e) Costs and such other reliefs. (f) For the permanent injunction restraining defendants 3 to 7 or their agents or any body claiming under them in interfering with peaceful possession and enjoyment over the suit schedule property. - 6 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 SCHEDULE A total of sixty eight residential residential sites situated in Sy.No.74/1, Sirigandadakaval, Sunkadakatte, Yeshwanthapura Hobli, Bangalore North, Bangalore, with individual boundaries. 8,9,10,12,17,18,46,47,48,50,54,232,233,234,235, 236, 237,238,239,240,241,242, 243, 248, 249,250,251,252, 253, 254,255,256,257,263,264,265,266,267,268,269,277,278 ,279,287,288,289,290,290/1,292,293,296,310,311,327,3 28,346, 347,348,349,350,352, 353,354,355,356,357 358 1. Site No.8, measuring 30x111 feet bounded on the East: Thimmaiah's Land, West; Road, North: Site No.7, South: Site No.9. 2. Site No.9, measuring 30x108 feet bounded on the East: Thimmaiah's Land, West: Road, North: Site No.8, South: Site No 10. 3. Site No.10, measuring 30x108 feet bounded on the East: Krishnappa's Land, West: Road, North: Site No.9, South: Site No.11. 4. Site No, 12, measuring 30x90 feet bounded on the East: Krishnappa's Land, West: Road, North: Site No.11, South: Site No.13. 5. Site No. 17, measuring 30x57 feet bounded on the East: Krishnappa's Land, West: Road, North: Site No. 16, South Site No. 18. 6. Site No.18, measuring 30x56 feet bounded on the East: Krishnappa's Land, West: Road, North: Site No. 17, South: South Road. 7. Site No. 46, measuring 30x40 feet bounded on the East: Site No. 22, West: Road, North: Site No. 45, South: Site No.47. - 7 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 8. Sita No. 47, measuring 30x40 feet bounded on the East:, Site No.21, West: Road, North: Site No. 46, South: Site No.48. 201 9. Site No.46, measuring 30x40 feet bounded on the East: Site No. 20, West: Road, North: Site No. 47, South: Site No.49: 10. Site No.50, measuring 60x60 feet bounded on the East: Road, West: Site No.70 (Sy. No.75/2), North: we Site No. 51, South: Road. 11. Site No.54, measuring 60x40 feet bounded on the 25, 166, East: Road, West: Site No. 66, North: Site No. 55, South: Site No.53. 01 12.Site No.232, measuring 30x40 feet bounded on the CBSE East:Site No.263, West Road, North: Road, South: 77/2 Gopal Land 13. Site No.233, measuring 40x40 feet bounded on the East: Site No.262, West : Road, North: Site No.234, South: Road 14. Site No.234, measuring 30x40 feet bounded on the East: Site No.261, West: Road, North: site No. 235, South Site No. 233. 15. Site No. 235, measuring 30x40 feet bounded on the East: Site No. 260, West: Road, North: Site No.236 South: Site No.234. 16. Site No.236, measuring 30x40 feet bounded on the East: Site No. 259, West: Road, North: Site No. 237, South: Site No.235. 17. Site No.237, measuring 30x40 feet bounded on the East: Site No.258, West: Road, North: Site No:238 South: Site No.236. 18. Site No. 238, measuring 30x40 feat bounded on the East: Site No.257, West: Road, North: Site No. 239, South: Site No.237. - 8 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 19. Site No.239, measuring 30x40 feet bounded on the East: Site No.256, West: Road, North: Site No.240, South: Site No.238. 20. Site No.240, measuring 30x40 feet bounded on the East: 255, West: Road, North: Site No. 241, South: Site No.239. 21. Site No.241, measuring 30x40 feet bounded on the East: Site No.254, West: Road, North: Site No.242, South: Site No.240. 22.Site No.242, measuring 30x40 feet bounded on the East: Site No. 253, West: Road, North: Site No.243, South: Site No.241. 23. Site No.243 measuring 30x40 feet bounded on the East: Site No.252, West: Road, North: Site No.244, South: Site No.242. 24.Site No.248, measuring 40x40 feet bounded on the East: Road, West: Site No.247 (in Sy.No.75/2), North: Road, South: Site No.249. 25. Site No.249, measuring 30x40 feet bounded on the East: Road, West: Site No.246, North: Site No.248, South: Site No.250. 26. Site No.250, measuring 30x40 feet bounded on the East: Road, West: Site No.245, North: Site No. 249, South: Site No.251. 27.Site No.251, measuring 30x40 feet bounded on the East: Road, West: Site No.244, North: Site No.250, South: Site No.252. 28. Site No.252, measuring 30x40 feet bounded on the East: Road, West: Site No.243, North: Site No.251, South: Site No.253. 29. Site No.253, measuring 30x40 feet bounded on the East Road, West: Site No.242, North: Site No.252 South: Site No.254. - 9 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 30. Site No. 254, measuring 30x40 feet bounded on the East: Road, West: Site No.241, North: Site No. 253, South: Site No.255. 31. Site No.255, measuring 30x40 feet bounded on the East: Road, West: Site No.240, North: Site No.254, South: Site No.256. 32. Site No.256, measuring 30x40 feet bounded on the East: Road, West: Site No.239, North: Site No.255, South: Site No.257. 33. Site No.257, measuring 30x40 feet bounded on the East: Road, West: Site No.238, North: Site No. 256, South: Site No.258. 34.Site No.263, measuring 30x46 feet bounded on the East: Road, West: Site No.232, North: Road, South: Sy.No.77/2 (Gopal's Land). 35.Site No.264, measuring 40x60 feet bounded on the East: Site No.294, West: Road, North: Site No.265, South: Sy.No.77/2 (Gopal's land). 36. Site No.265, measuring 35x35 feet bounded on the East: Site No.291 West: Road, North: Road South: Site No.264. 37. Site No. 266, measuring 60x40 feet bounded on the East: Site No.290/1, West: Road, North: Site No.267, South: Road. 30. Site No.267, measuring 60x30 feet bounded on the East: Site No.289, West: Road, North: Site No.268, South: Site No.266. 39.Site No.268, measuring 60x40 feet bounded on the East: Site No.288, West: Road, North: Site No.269, South: Site No.267. 40. Site No.269, measuring 60x40 feet bounded on the East: Site No.287, West: Road, North: Site No. 270, South: Site No.268. - 10 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 41. Site No.277, measuring 60x40 feet bounded on the East: Site NO.278, West: Road, North: Road, South: Site No.276. 42. Site No.278, measuring 60x40 feet bounded on the East: Site No.279, West: Site No.277, North: Road South: Site No.276 & 280. 43. Site No. 279, measuring 60x40 feet bounded on the East: Road, West: Site No.278, North: Road South: ant Site, No.280. 44. Site No. 287, measuring 60x40 feet bounded on the East: Road, West: Site No.269, North: Site No.286 South: Site No.288. 45. Site No.288, measuring 60x40 feet bounded on the East: Road, West: Site No. 268, North: Site No:287 South: Site No.289. 46. Site No. 289, measuring 60x30 feet bounded on the East: Road, West: Site No.267, North: Site No. 288, South: Site No.290 47. Site No.290, measuring 60x60 feet bounded on the East: Road, West: Site No.290/1, North: Site No. 289 South: Road. 48. Site No.290/1, measuring 60x40 feet bounded on the East: Site No.290, West: Site No.266, North: Site No. 289, South: Road. 49. Site Nov291, measuring 30x40 feet bounded on the East: Site No.292, West: Site No.265, North: Road South: Site No.264. 50.Site No.292, measuring 30x40 feet bounded on the East: Site No.293, West: Site No. 291, North: Road, South: Site No.294. 51. Site No.293, measuring 40x40 feet bounded on the East: Road, West: Site No.292, North: Road, South: Site No.294. - 11 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 52. Site No.296, measuring 44x30 feet bounded on the East: Sarojamma's land, West: Road, North: Road, South: Site No.77/2 (Gopal's Land). 53.5ite No 310, measuring 30x40 feet bounded on the East: Sarojamma's land, West: Road, North: Site No.311, South Road. 54. Site No.311, measuring 42x40 feet bounded on the East: Sarojamma's land, West: Road, North: Road South: Site No.310. 55. Site No.327, measuring 30x40 feet bounded on the East: Sarojamma's land, West: Road, North: Site No.328, South: Road. 56. Site No.328, measuring 40x40 feet bounded on the East: Sarojamma's land, West: Road, North:. Road, South: Site No.327. 57. Site No.346, measuring 30x36x46 feet bounded on the East: Sarojamma's land, West: Road, North: Site No. 347, South: Road. 58. Site No.347, measuring 30x42 feet bounded on the East: Krishnappa' s Land, West: Road, North: Site No. 348, South: Site No.346. 59. Site No.348, measuring 30x44 feet bounded on the East: Krishnappa's Land, West: Road, North: Site No.349, South: Site No.347. 60. Site No.349, measuring 30x48 feet bounded on the East: Krishnappa's Land, West: Road, North: Site No.350, South: Site No. 348. 61. Site No.350, measuring 30x51 feet bounded on the East: Krishnappa's Land, West: Road, North: Site No. 351, South: Site No.349. 62. Site No. 352, measuring 30x57 feet bounded on the East: Krishnappa's Land, West: Road, North: Site No. 353, South: Site No.351. - 12 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 63. Site No.353, measuring 30.57 feet bounded on the East: Krishnappa's Land, West: Road, North: Site No. 354, South: Site No.352. 64. Site No.354, measuring 30 x64 fee bounded on the East: Krishnappa's Land, West: Road, North: Site No.355, South: Site No. 353. 65.Site No. 355, measuring 30x67 feet bounded on the East: Krishnappa's Land, West: Road, North: Site No.356, South: Site No.354. 66.Site No. 356, measuring 30x70 feet bounded on the East: Krishnappa's Land, West: Road, North: Site No.357 South: Site No. 355. 67. Site No. 357, measuring 40x49 feet bounded on the East: Site No.358, West: Road, North: Road, South: Site No.356. 68. Site No.358, measuring 30x49 feet bounded on the East: Krishnappa's Land, West: Site No.357, North: Road, South: Site No.356. 5. Plaint averments would reveal that plaintiff and his brother Sri. T. Narayana Swamy and his father Thimmappa constituted a joint family and enjoyed the suit properties as joint family properties totally measuring 8 acres 22 guntas in Survey No.74/1 at Srigandadakavalu Village, Yeshawanthapura Hobli, Bangalore North Taluk, Bangalore. - 13 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 6. When the father of the plaintiff was alive, plaintiff, his brother and his father intended to form a private layout in the aforesaid land and for the said purpose, neighbouring land owners also conceded and as such owners of Sy.No.74/2, 63 and Sy.No.75/1 were put together and in the land of all these survey numbers, approximately 360 sites were formed. A rough sketch was filed along with the plaint showing the private layout formed in the aforesaid four survey numbers. 7. Plaintiff contended that for development of the private layout, there was an agreement in favour of Sri. Nainichand who developed the lands to some extent and during the subsistence of the said agreement, he withdrew from the said project. 8. At the inception, the project was commenced in the year 1983-84 and Sri. Nainichand withdrew from the project in the year 1987. - 14 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 9. Later on, it is the first defendant who was appointed as a commission agent to procure the proposed purchasers. 10. In the lands belonging to the plaintiff’s family, there were as many as 152 sites out of which, plaintiff, his father and his brother through the agency of the first defendant sold several sites and 68 sites remained unsold which are the suit schedule sites. 11. Plaintiff further contended that plaintiff, his father and his brother executed a power of attorney in favour of first defendant relating to Site No.351 alone. But first defendant after procuring the said power of attorney on 06.12.1987 was in possession of the said power of attorney. Father of the plaintiff i.e. Thimmappa died on 20.06.1991 and upon the death of his father, power of attorney which had joint interest at the time of execution lost its validity because of the death of one of the principal. - 15 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 12. It is further contented that in August- September 1997, it came to the knowledge of the plaintiff that first defendant based on the power of attorney dated 06.12.1987 which was executed only with regard to the Site No.351, went on executing several documents in favour of several persons. 13. Upon enquiry, it came to the notice that in addition to the power of attorney relating to Site No.351, first defendant proclaimed that he is the power of attorney of the remaining sites as well and dealt with the same. 14. Plaintiff went and met his brother and enquired as to the factum of the validity of the said power of attorneys in favour of the first defendant. His brother pleaded ignorance and therefore plaintiff was constrained to file the suit for injunction in O.S. No.5208/1997. 15. In the said suit, on account of inadvertence, entire suit schedule property had not been mentioned as - 16 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 measuring 8 acres 22 guntas and suit also was suffering from several defects. 16. As such, plaintiff withdrew the said suit. In the meantime, plaintiff came to know that on the strength of forged and fabricated documents, the first defendant had executed power of attorney in turn and affidavits and also documents. 17. Plaintiff further contended that in the written statement filed by the first defendant in O.S. No.5208/1997, the first defendant had filed complaint and from the said complaint averments, he came to know that there was a power of attorney on 06.12.1987, which was fabricated and there was yet another forged power of attorney dated 04.12.1987 and based on which, the first defendant acted detrimental to the interests of his principal namely plaintiff, his father and brother. 18. Plaintiff further contended that acquiring the knowledge about the misdeed committed by the first - 17 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 defendant, a criminal complaint came to be filed before Rajagopal Nagar Police Station alleging the forgery, fraud and cheating against the first defendant in Crime No.250/1997. 19. Plaintiff also contended that in the lay out formed as aforesaid, except remaining 62 sites, plaintiff, his father and his brother have joined and executed sale deeds relating to the remaining sites. But, first defendant on the strength of fabricated documents, has sold and created documents of title in respect of Sites No.266 to 272, 284 to 293 , 350 to 358. 20. It is also contented that alleged power of attorney said to have been executed by plaintiff, his father and brother on 04.12.1987 and 06.12.1987 are concocted by forging their signatures and therefore plaintiff filed the suit with the aforesaid prayers. - 18 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 21. Pursuant to the suit summons, defendant entered appearance and filed detailed written statements denying the plaint averments in toto. 22. First defendant contended that for want of necessary statutory notice, suit against the second defendant being the City Municipal Council, Peenya Dasarahalli needs to be dismissed. 23. It is also contended that suit in O.S. No.8911/1997 acts as res judicata in view of the withdrawal of the suit in O.S. No.5208/1997 without the leave of the Court and reserving the cause of action. 24. It is also contented by the first defendant that in respect of the sites formed by the first defendant in Sy.No.74/1, plaintiff is laying unlawful claim and entire layout is formed by the first defendant is called 'Karim Sab layout' and later on it is named as 'Srigandada Nagar'. 25. It is further contented by the first defendant that Site No.48, 67, 68, 70 to 268 to 271, 284 to 288, are - 19 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 sold by his father and brother. Therefore, the very injunction suit itself was not maintainable so also the present suit. 26. First defendant contended that knowing fully well that two power of attorneys have been executed by plaintiff his father and his brother on 04.12.1987 and 06.12.1987, in order to sustain the claim in the suit, false allegations are made against the first defendant and therefore, suit is to be dismissed. 27. Based on the rival contentions of the parties, learned trial Judge raised following issues: 1. Whether the plaintiff proves that the power of attorney in favour of the 1st defendant dated: 4.12.1987, is fabricated and forged and as such null and void? 2. Whether the plaintiff further proves that of attorney Whether the plaintiff further proves the power dtd:6.12.1987 in favour of the 1st defendant is also forged and false and fabricated and as such null and void? 3. Whether plaintiff proves his alleged lawful possession and enjoyment of the suit schedule properties as on the date of the suit? - 20 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 4. Whether the plaintiff further proves that the 1st defendant or his agents have no legal rights to alienate the suit schedule property? 5. Whether the plaintiff further proves that the 2nd defendant in law, cannot issue any permission or otherwise, granting sanction of plan etc., relating to any of the suit schedule property? and 6. Whether the plaintiff is entitled to the suit reliefs of declaration injunctions as prayed for? 7. What order/decree? 28. In order to prove the issues that were framed in the suit, on behalf of the plaintiff, plaintiff got examined as PW1 and placed on record 19 documents which are Exhibited and marked as Exhibit P1 to P19 comprising of original plan, another layout plan, photocopy of the order passed in Criminal RP No.6829/2001, copies of the power of attorney dated 04.12.1987 and 06.12.1987, copy of the FIR, office copy of the legal notice, Four RTC extracts, photocopies of mutation entries, tax paid receipts, certified - 21 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 copy of the order passed by the Assistant Commissioner, certified copy of the Order passed by the Special Deputy Commissioner, certified copy of the judgment and decree passed in OS No.16304/2000, certified copy of the Order passed in Crl.R.P. No.1703/2004, certified copy of the orders in SLP No.1246/2006 and 3407/2006, certified copy of the charge sheet in Crime No.250/1997. 29. As against the evidence placed on record by the plaintiff, son of the first defendant got examined as DW1 and placed on record four documents namely certified copy of the deposition recorded in OS No.8910/1997, copy of the deposition of Thimmegowda, photocopy of the registered partition deed and medical certificate. 30. Learned Trial Judge after conclusion of recording of evidence, heard the arguments of the parties in detail and by impugned judgment, dismissed the suit of the plaintiff inter alia holding in Paragraphs No.12 to 22 in the respect of Issue Nos.1 and 2, consequently held the - 22 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 other issues against the plaintiff and dismissed the suit of the plaintiff. 31. Being aggrieved by the same, plaintiff is before this Court in this appeal on the following grounds: That the impugned Judgment and Decree is wholly erroneous besides being against law and both oral and documentary evidence on record. Hence on this ground alone the same is liable to be reversed. That the court below has utterly failed to take into consideration the fact that the defendant no.1/respondent no.1 herein has been convicted for a offence of forgery in C.C.No.1630/2000 by the 7th Addl. Chief Metropolitan Magistrate Bangalore and was sentenced to 6 months imprisonment. The said order of conviction has been affirmed by the Sessions court in Criminal appeal No.184/2004 and also by this Hon'ble Court in Crl. Revision petition no.1703/2004 Thus it was proved beyond doubt that the said two general power attorneys dated 4-12- 1987 and 06-12-1987 were forged and fabricated documents.Therefore the trial court is not justified in answering issue no. 1 and 2 against the plaintiff. That the trial court has committed an error in holding that the Judgement of conviction passed in criminal court is not binding on the civil court, forgetting the - 23 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 fact that on the very same documents, the competent criminal court has come to the conclusion that they are forged and fabricated and convicted the accused/defendant no.1. Under these circumstances, the court below could not have simply brushed aside the order of conviction while answering issue no.1 and 2 against the plaintiff. Therefore it is submitted that the entire approach of the court below in appreciating the documentary evidence on record is totally wrong which has resulted in miscarriage of justice. That the court below has further committed an error in not noticing the fact that the plaintiff/appellant has filed an application seeking a direction against the defendant no.1 to produce the original copies of the general power of attorneys dated 04-12-1987 and 6- 12-1987. In the objection statement, the defendant no.1 has clearly admitted that he is in custody of the said original documents and would produce the same in due course of time. Inspite of the said statement, the defendant no.1 has not produced the said original documents. No reason is forth coming has to why the said power of attorneys though admittedly in his custody were not produced. Hence presumption under section 114 (g) of the Indian Evidence Act would arise and therefore an adverse inference should have been drawn against the defendant no.1/respondent no.1 herein Though this aspect of the law was very much brought to the notice of the - 24 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 trial court, the same has not been properly considered and appreciated while dismissing the suit. Hence the Judgement and Decree which is based on non application of law on the subject is bad and unsustainable in law. That the court below has totally misread the papers and the documents produced in the case and thus has misdirected itself in coming to a wrong conclusion. It is respectfully submitted that EX.P.3 and P.4 are the subject matter of the criminal proceedings in which the defendant no.1 was convicted for an offence of forgery. The court below has clearly held that EX.P.3 and 4 were not the subject mater of criminal proceedings and hence declaration cannot be granted. This finding of the trial court is totally wrong and unwarranted under the facts and circumstances. That when once the competent criminal court has convicted defendant no.1 for an offence of forgery on the very same document, the trial court should have taken into consideration the said conviction order and ought to have held issue no.1 and 2 in favour of the plaintiff. It is further respectfully submitted that when once the question of forgery and fabrication is already decided, the same would be binding on the trial court especially when it is with respect to the very same documents involved in both the cases. Therefore having regard to the totality of the facts - 25 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 and circumstances and the orders passed by the criminal court, there was no reason or justification for the trial court to once again hold that forgery aspect is not proved Hence the Judgement and decree under appeal is totally bad in law and therefore liable to be set aside. That the trial court has not properly applied its mind to the real question involved in the suit and thus has misdirected itself in dismissing the suit. It is respectfully submitted that the specific case of the plaintiff appellant is that EX.P.3 and P.4 are forged and fabricated documents which is proved by EX.P.15 and 16 which are the order of conviction confirmed by this Hon'ble court. Apart from the above it has come in the evidence of the plaintiff, that he has executed GPA dated 6-12-1987 only with respect to site no.351. A plain look at the said document clearly demonstrate the fact that there are insertions and interpolations of site nos. in the said documents. Under such circumstances, the burden is on the defendant no.1 to prove that it is not forged or fabricated by producing the original. In the instant case the original documents are withheld by the defendant no.1, under such circumstances and having regard to the order of conviction, the trial court ought to have decreed the suit Failure to do so has resulted in miscarriage of justice. - 26 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 That the trial court has further failed to note the fact that the defendant no.1 has intentionally not stepped into the witness box and depose regarding the execution of two GPAs in his favour. Why he has not choosen to appear before the court and support his claim is not properly explained. D.W.1 is the son of the defendant no.1 who has no personal knowledge about the alleged transaction between plaintiff and the defendant no.1 Under these circumstances, the court below should have taken note of the conduct of defendant no.1 and ought to have disbelieved the evidence of D.W.1 and ought to have ignored his evidence and decreed the suit. No such exercise appears to have been done in this case. Hence the Judgement and decree under appeal is not correct and sustainable in the eye of law. That the court below has not properly considered the Judgement relied upon by the plaintiff and thus is not coггесt and justified in coming to the conclusion that they are not helpful to the case of the plaintiff. Further it has failed to note the fact that on the basis of order passed by this Hon'ble court, the plaintiff has led secondary evidence on EX.P.3 and 4. As directing the submitted supra an application was also filed respondent no.1 to produce the originals of EX.P.3 and 4. Though the respondent no.1 admitted that they are in his custody, the same were not produced before the trial court. Thus under the circumstances, the trial court is not at all justify in coming to the - 27 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 conclusion that the plaintiff has not proved forgery aspect of the case. Therefore it is submitted that the whole approach of the trial court in deciding the lis between the parties is bad in law which has resulted in an erroneous Judgement and decree being passed. Hence on this ground, the impugned Judgement and Decree is unsustainable ion the eye of law. That the court below as further failed to see that when the forgery aspect of the case is already proved by producing the order of conviction and sentence, the burden shifts on the respondent no.1 to disprove the same by leading cogent and acceptable evidence. Except D.W.1, there are no other evidence available on record to disprove the same Hence under the circumstances, the trial court could not have dismissed the suit. That even otherwise the Judgement and Decree under appeal is totally against law and facts of the case and therefore unsustainable in the eye of law. 32. Sri. B. Ramesh, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contented that the learned trial Judge misdirected himself in recording a finding that the plaintiff has failed to prove the veracity of the power of - 28 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 attorney dated 04.12.1987 and 06.12.1987 as the power of attorney was in the custody of the first defendant. Therefore it should have been summoned from the custody of the first defendant as it is the first defendant who said to have sold the sites belonging to the plaintiff, his father and his brother on the strength of those power of the attorneys. 33. He would further contend that reasoning recorded by the alleged trial Judge that there is no sufficient foundation to lead the secondary evidence in marking the photocopies of power of the attorney dated 04.12.1987 and 06.12.1987 vide Exhibits P3 and P4 is far from any logic inasmuch as what was available with the plaintiff has been placed on record. 34. He also argued that whenever there is an allegation of forgery, it was the bounden duty of the person who is in custody of the original document must be directed to place the same before the Court and not - 29 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 following such a procedure and recording a finding against the plaintiff has resulted in grave miscarriage of justice and sought for allowing the appeal. 35. He would further contend that non obtaining the leave in filing the present suit while withdrawing the earlier suit in OS No.5208/1997 would not and should not come in the way of the suit of the plaintiff and sought for allowing the appeal. 36. Sri. B. Ramesh would also contend that the admissions elicited in the cross examination of DW1 who is none other than the son of the first defendant is totally ignored by the learned trial Judge while non-suiting the interest of the plaintiff and dismissing the suit. 37. He would also contend that the appellant be permitted to summon the original power of attorney from the custody of the first defendant and for that purpose, the impugned judgment be set-aside and matter be remitted to the trial Court. - 30 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 38. Per contra, Sri. C.S. Prasanna Kumar, learned counsel for the contesting respondent supports the impugned judgment by contending that the suit itself is not maintainable in view of the fact that there was consolidation of four lands in four different survey numbers belonging to four different people. 39. As such, the private layout formed in four lands that too by a private lay out, in the absence of other co- owners and especially even in the family of the plaintiff, non-joining the father and the brother who are also the joint owners of the property. 40. Secondly, the suit was filed by the plaintiff on the premises that the power of attorney dated 04.12.1987 and 06.12.1987 are forged power of attorneys. But the plaint averments itself would go to show that there was a power of attorney executed by plaintiff, his father and his brother in respect of Site No.351. - 31 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 41. It is also found from the plaint averments that they came to know about the alienation of the other sites only by way of a written statement filed in OS No.5208/1997 by the first defendant. 42. Sri. Prasanna Kumar would emphasize that if the defendant has concocted the documents as is alleged by the plaintiff there was no necessity for him to disclose the number of transactions made by him on the strength of the power of attorney executed by the plaintiff in the written statement in OS No.5208/1997. 43. First defendant as well could have suppressed if he is at fault which exposes the avariciousness of the plaintiff in filing the suit in order to make a wrongful gain for himself after having executed the power of attorneys 04.12.1987 and 06.12.1987. 44. He would further contend that suit is one for declaration filed by the plaintiff, plaintiff has to make out a legal title in respect of the suit property and therefore, - 32 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 expecting the Court to draw the support from the alleged admissions in the cross-examination of DW1 for decreeing the suit is totally untenable. Therefore, learned trial Judge rightly dismissed the suit of the plaintiff and thus sought for dismissal of the appeal. 45. Lastly, he would contend that the site numbers mentioned in the plaint do not tally with the alleged rough sketch and which of the sites that has fallen to the plaintiff's share in the consolidated area itself is a question that needs to be established and ownership thereof is to be established by the plaintiff by placing cogent and convincing material on record and in the absence of any such material on record, suit for declaration per se not maintainable as there is no legal title to the plaintiff alone in respect of the suit property which has been rightly appreciated by the learned Trial Judge in the impugned judgment and thus, sought for dismissal of the appeal. - 33 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 46. In the light of the above rival contentions, following points would arise for consideration: (i) Whether the plaintiff is successful in establishing the legal title over the suit properties. (ii) Whether the plaintiff would further establish that power of attorneys dated 04.12.1997 and 06.12.1987 is concocted by the first defendant and sold the few of the sites belonging to the plaintiff. (iii) If so, whether the plaintiff is entitled for any relief? (iv) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference? (v) What order? Regarding Points No.1 to 4. 47. These points are taken up together for consideration in order to avoid the repetition of facts. 48. In the case on hand, in order to prove that plaintiff is the owner of the property no document is placed on record. - 34 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 49. Orders of the Assistant Commissioner and Special Deputy Commissioner are all of no use in establishing the title over the suit property by the plaintiff. 50. Admittedly as per the plaint averments itself, four different lands in four different survey numbers were consolidated by the for the purpose of forming a private layout. Admittedly no legal sanction was there for forming the private layouts in an agricultural land. 51. Plaintiff being the one of the joint owners in respect of land in Sy. No.74/1, measuring 8 acres 22 guntas, Cannot maintain a suit in the absence of other joint owners namely his father and brother besides the neighbouring site owners namely the owners of land in Sy.No.74/2, 63 and 75/1, whereunder 360 sites are formed together. Therefore, the very frame of the suit itself is incorrect though specific issue is not raised by the learned trial Judge in this regard. - 35 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 52. Nevertheless, to find out whether the plaintiff at least is in a position to establish the title over the suit property, this Court analyzed the material documents placed on record. 53. Admittedly, the document that is placed on record by the plaintiff is the original plan. The plan is marked at Exhibit P1 which is admittedly a private plan not approved by any Authority. 54. In other words, the plan is self-serving document insofar as the plaintiff is concerned. Under such plan, ownership of the plaintiff, his father and his brother in the respect of the land in Sy.No.74/1 to the extent of 8 acres 22 gutnas is not depicted. 55. It is settled principles of law and requires no emphasis that whenever a person approaches the Court with a prayer for declaration of title in respect of the immovable property, it is incumbent on that party to place a valid document of title in respect of the landed property. - 36 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 In the case on hand, except Exhibit P1, no other document is forthcoming on record to establish legal title to the suit properties. 56. Be it what it may, Fact remains that out of the four lands in four different survey numbers, 360 sites are formed. What is the arrangement that has been arrived at by the plaintiff, his father and brother with the other landowners to get 152 sites out of 360 sites and which are the sites that actually fell into the share of the plaintiff, no connecting documents is placed on record. 57. Pertinently, apart from examining the plaintiff, neighbouring landowners are not examined to establish that plaintiff was the owner of 152 sites and out of the 152 sites, what are the sites that fell into the share of the plaintiff which is the suit properties not forthcoming on record. 58. Under such circumstances, very title to the suit property is not established by the plaintiff to any extent. - 37 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 59. Defendant no doubt took a contention that the sites which the plaintiff has included in the schedule are not the sites formed in the private layout as per Exhibit P1. But, some of the sites were belonging to 'Karim Sab Nagar' and later on called as Srigandada Nagar. 60. Plaintiff however stated that there was only one power of attorney executed by plaintiff, his father and his brother in favour of the first defendant in respect of Site No.351 alone and in order to deceive the plaintiff, the first defendant concocted two power of attorneys on 04.12.1987 and on 06.12.1987 and dealt with the suit sites as if he is the power of attorney appointed by the plaintiff, his father and brother. 61. In that regard at least the brother of the plaintiff could have been examined by the plaintiff in order to show that he did not execute any Power of attorney in favour of the first defendant. - 38 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 62. No doubt in the plaint there is an averment to the effect that after the written statement came to be filed by the defendant in OS No.5208/1997, he enquired his brother whether he has executed any power of attorney and his brother has pleaded ignorance about the same. If that is so, it was incumbent on the part of the plaintiff to examine his brother and to establish that neither his brother nor his father or the plaintiff have executed another power of attorney on 04.12.1987. 63. There is a mention in the plaint about the power of attorney dated 06.12.1987, but the plaintiff maintained that the said power of attorney was only with regard to the Site No.351. 64. In other words, if the agent has acted beyond the directions of the principal/s, the action lies for working out the damages by the plaintiffs and not to seek the declaration. - 39 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 65. Further, the plaintiff failed to establish that there was a the power of attorney dated 04.12.1987 and 06.12.1987 are forged one inasmuch as the original of those power of attorneys are not summoned before the Court. 66. Mere marking the photocopies of the said power of attorney vide Exhibit P3 and Exhibit P4 did not absolve the responsibility of the plaintiff in getting the original documents placed before the court by at least by issuing the notice under Order XII Rule 8 of the Code of Civil Procedure. 67. Further, to place the photocopies on record and marking it before the Court would not take the proof of the document. 68. It is settled principles of law and requires no emphasis that mere marking of a document is not the proof of the document. - 40 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 69. Thus, in the absence of any foundation being laid for placing the secondary evidence on record as is contemplated under Section 65 of the Indian Evidence Act, the evidentiary value or the probative value of Exhibit P3 and Exhibit P4 cannot be looked into by the Court while appreciating the case of the plaintiff. 70. Thus, in the absence of non summoning of the original power of attorney from the custody of the first defendant, has resulted in drawing the adverse inference against the plaintiff. 71. It is one thing that if the plaintiff had summoned the original power of attorneys from the custody of the first defendant and if the defendant has failed to comply the order. But when the plaintiff himself did not make any such attempt, the plaintiff cannot take advantage of non-production of the original power of attorneys from the custody of the first defendant which - 41 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 has been rightly appreciated by the learned trial Judge if not in happy words. 72. Therefore, in the absence of any title document placed on record by the plaintiff and mere filing of criminal complaint and filing charge sheet by the Rajagopal Nagar Police Station, based on the complaint filed by the plaintiff that first defendant has concocted the power of attorneys by Exhibit P3 and Exhibit P4 itself will not be treated as proof that the first defendant has concocted those powers of attorneys and dealt with the sites for which the plaintiff, his father and brother is the owner cannot be countenanced in law. 73. 73. Having said thus, when there is a discrepancy as to the layout plan and ownership rights of the suit properties, non-summoning of the original power of attorneys to establish that power of attorneys were concocted by the first defendant and thereby alienation made by the first defendant would not bind the plaintiff or - 42 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 rightly appreciated by the learned trial Judge in the impugned judgment while dismissing the suit of the plaintiff. 74. Even after re-appreciation of the material on record, this Court is of the considered opinion that the plaintiff having failed to prove the title over the suit property and placing such necessary proof on record to establish the fact that the first defendant concocted two powers of attorney on 04.12.1987 and 06.12.1987. 75. In view of the foregoing discussion, this Court is of the considered opinion that the learned trial Judge has arrived at the right decision if not in happy words and proper reasons. Therefore, impugned judgment cannot be termed as perverse so as to upset the same. 76. Thus, invariably, this Court has to answer point number 1, 2 and 4 'in the negative' and point No.3 would not arise for consideration. - 43 - HC-KAR NC: 2025:KHC:48750 RFA No. 95 of 2008 77. Regarding point No.5: 78. In view of recording of finding on Points No.1 to 4, following order is passed: ORDER Appeal is meritless and hereby dismissed. No order as to the costs. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 5 CT-SG