- 1 - RFA No. 100187/2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100187 OF 2020 BETWEEN: 1. SMT.PADMAVATI SINCE DECEASED BY HIS LR’S 1A) PANDAPPA S/O. KRISHNAPPA SHIROL AGE: 56 YEARS, OCC: AGRICULTURE, R/O: RAINAOUR, TQ. SAUNDATTI, DIST: BELAGAVI. 1B) SHIVANAND S/. KRISHNAPPA SHIROL AGE: 53 YEARS, OCC: AGRICULTURE, R/O: UPPIN ONI, YARAGATTI, DIST: BELAGAVI. …APPELLANT (BY SRI. V.M. SHEELVANT, ADVOCATE) AND: 1 . SRI. YAMANNAPPA FAKKIRAPPA HUBBALLI AGE: 78 YEARS, OCC: AGRICULTURE, R/O: GADDIKARAVINAKOPPA, TQ: BAILHONGAL, DIST: BELAGAVI-590001. Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA Date: 2025.03.17 13:04:37 +0530 - 2 - RFA No. 100187/2020 2 . RAMAPPA GANGAPPA HULAKUND AGE: 69 YEARS, OCC: BUSINESS, R/O: RAINAPUR, TQ: SAUNDATTI, NOW R/AT: RUKAMINI, DIST: BELAGAVI-590001. 3 . SRI. SIDDAPPA TIPPANNA HULAKUND AGE: 78 YEARS, OCC: AGRICULTURE, R/O: YARAGATTI, TQ: SAUNDATTI, DIST: BELAGAVI-590001. …RESPONDENTS (BY SRI. K.L. PATIL, ADVOCATE FOR R2; SRI. MANJUNATH A. KARIGANNAVAR, ADVOCATE FOR R3; NOTICE TO R1 IS SERVED) THIS RFA IS FILED UNDER SECTION 96 R/W. ORDER 41 RULE 1 OF CPC., PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 21.12.2019 PASSED BY THE SR. CIVIL JUDGE, SAUNDATTI AT SAUNDATTI IN O.S.NO.77/2013 AND ACCORDINGLY DECREE THE SUIT OF THE PLAINTIFF WITH COST IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 13.02.2025, THIS DAY, UMESH M ADIGA, J., DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - RFA No. 100187/2020 CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This appeal is filed by the plaintiffs challenging the judgment and decree dated 21.12.2019, passed in O.S.No.77/2013, by the learned Senior Civil Judge, Saundatti. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. The appellants were legal heirs of the deceased plain- tiff. The respondents were defendants. The plaintiff filed the suit for the relief of declaration and injunction. The said suit was decreed by the trial Court and the same is challenged by legal heirs of the deceased plaintiff. 4. Brief facts of the case of both the parties before the trial Court are as under: 5. It is a case of plaintiff that she was the owner of land in block No. 449/1, measuring 1 acre 29 guntas situated at Rainapura village of Savadatti taluk. It was originally be- longing to her father and he relinquished the said pro- - 4 - RFA No. 100187/2020 perty in her favor. Accordingly her name was mutated in the revenue records. Thereafter she has been in possession and enjoyment of the suit property. Plaintiff's husband and sons have landed properties and they are do- ing business and getting good income every year. The fam- ily of the plaintiff is progressive agriculturist. They do not have any debts till filing of the suit. There was no any ne- cessity for the plaintiff to alienate suit property to anybody at any point of time. It is further con- tended by the plaintiff that she never executed any Power of Attorney in favor of anybody including defendant No.1 to deal with the suit property. Defendant No.1 is a stranger to her. It is further case of plaintiff that defendant No.1 created Power of Attorney dated 13.12.2002 by forging her signature. The contents of the General Power of Attorney was totally bogus, concocted and created with an intention to grab the property belonging to the plaintiff. There was no occasion for the plaintiff to au- thorize defendant No.1 to execute general power of attorney in his favour. Defendant nos.1 and 2 colluding with con- cerned authorities, have falsely created the - 5 - RFA No. 100187/2020 alleged General Power of Attorney (for short GPA) only with an intention to gulp the property belonging to the plaintiff. The Plaintiff is a woman and she is a rustic villager and also an illiterate. Taking undue advantage of the same, defen- dant Nos.1 and 2 colluding with the Notary public, got cre- ated GPA purporting to be executed by the plaintiff. Defen- dant Nos.1 and 2 on the strength of alleged GPA dated 13.10.2002 created the registered sale deed dated 17-09-2003 in respect of suit property. Defendants No.1 and 2 got mutated the revenue records even without issuing notice to the plaintiff. Plaintiff is totally unaware about the said transactions. 6. It is further contended by the plaintiff that few days prior to filing of the suit defendant No.2 tried to interfere in the plaintiff's peaceful possession and enjoyment of the property; on inquiry. she came to know about these facts. Therefore, she filed the suit with following prayers: a) To declare that she is the owner and in possession of the suit property holding that the sale deed dated 17-09-2003 and GPA 13-12- - 6 - RFA No. 100187/2020 2002 in respect of the suit property are not bind- ing on the plaintiff. b) Restraining defendant No. 2 or anybody acting on his behalf, from causing obstruction to the peaceful possession and cultivation or use and enjoyment of the suit property and alterna- tively, if for any reason, the plaintiff is found to be out of possession of the suit property, the same may be awarded to her from the defendant No. 2. 7. Defendant No.1 in his written statement denied the contentions of the plaintiff. According to him, he and plaintiff are permanent resident of Gaddi Karaveena Koppa village of Bailhongal taluk. Plaintiff intended to sell the suit property for her financial constraints of his family. For that purpose she executed GPA in his favour authorizing him to sell the suit property, before Notary public on 13-12-2002 and on strength of the GPA defendant No.1 executed a reg- istered sale deed dated 17.09.2003 in favour of defendant No.2, for valuable consideration of - 7 - RFA No. 100187/2020 Rs.69,000/- and he paid the said amount to the plaintiff. The defendant No.1 produced the original GPA before the Sub Registrar Murugod. The Sub Registrar verified the GPA executed by the Plaintiff in favour of Defendant No.1 and has registered the sale deed and retained GPA in the office. Therefore, both the Power of Attorney as well as sale deed dated 17.09.2003 is binding on the rights of the plaintiff over the suit properties. The Plaintiff has filed this suit to harass defendant Nos.1 and 2. With these reasons, prayed to dismiss the suit with cost. 8. Defendant No.2 in his written statement denied the plaint averments and contended that defendant No.1 on be- half of the plaintiff as her GPA had executed the sale deed on 17.09.2003 in his favour, by receiving the sale consid- eration of Rs.69,000/-. After the execution of the sale deed, he got mutated the revenue records as per law. Notice of the same was sent to the plaintiff by the concerned revenue authorities. The plaintiff never objected for the same. This suit is filed after the lapse of nearly about 12 years from the date of execution of the sale deed. Therefore, the suit is - 8 - RFA No. 100187/2020 barred by time. The sale deed is valid and binding on the rights of the plaintiff. He further contended that from the date of execution of the sale deed, he has been in peaceful possession and enjoyment of the suit property. With these reasons, prayed for dismissal of the suit with costs. 9. Defendant No.3 got impleaded in the suit. According to his contention, he is the owner of remaining portion of survey No.449, measuring 1 acre 29 guntas. The plaintiff is his sister. He also contended that defendant Nos.1 and 2 colluding each other and with the other authorities created false GPA and on the strength of the said GPA, created the sale deed, without the knowledge of the plaintiff. Therefore, the said GPA or sale deed does not bind the rights of the plaintiff. He further contended that survey No. 449 is totally measuring 3 acres 19 guntas. His father had executed the Will bequeathing the said property in his favour as well as in favour of plaintiff. Both of them are en- titled to half share in the said property i.e. each entitled for 1 acre and 29 guntas. After death of his - 9 - RFA No. 100187/2020 father, revenue records were mutated in mutation No.3406 dated 19-11-1985. There is no partition between himself and the plaintiff in the said property. Therefore he prayed for partition and separate possession of his half share in the survey No. 449 totally measuring of 3 acres, 19 guntas. 10. From the rival contention of the parties, the trial Court framed the following issues. (1) Does the plaintiff prove the share in the sun property? (2) Does the defendant prove that, suit is barred by limitation? (3) Does the defendant prove that the court fees paid is insufficient (4). Does the plaintiff prove that, the sale deed dated 17-09-2003 IN not binding upon plaintiff's share? (5) What order or decree ? Additional issues (1) Whether the plaintiff proves that the general power of attorney dated 13-12-2002 alleged to have been executed in favour of the defendant No.1 is forged document? - 10 - RFA No. 100187/2020 (2) Whether the plaintiff proves that she is in lawful possession and enjoyment of the suit properties as absolute owner? (3) Whether the plaintiff proves that the defendant No.2 has interfered with her lawful possession and enjoyment of suit properties? (4) Whether the defendant No.3 is entitled to relief claimed in his counter claim? (5) Whether the defendant No.2 proves that the counter claim set out by the defendant No.3 is bad for non-inclusive of all the ancestral and joint family properties? 11. Plaintiff to prove her case, got examined herself as PW.1 and got marked 11 documents as per Ex.P.1 to P.11. Defendant No.1 got himself examined as DW.1 and got marked Ex.D.1 to D.3. The defendant No.1 got examined 4 witnesses i.e., DW.2 to DW.5 the defendant No.2 was examined himself as DW.6 and got examined one witness as DW.7. The Defendant No.3 got examined himself as DW.8. Defendants. got marked 27 documents as per Ex.D1 to D27. - 11 - RFA No. 100187/2020 12. The learned trial judge after hearing the arguments on both sides and appreciating pleading and evidence on record answered the issue Nos.1, 4 and additional issue No.1, 2, 3, 4 in the negative, issue Nos.2, 3 and Additional issue No.5 in the affirmative and dismissed the suit. The trial Court has also dismissed the counter claim of defendant No.3. Being aggrieved by the judgment and decree dated 21.12.2019, the plaintiff has filed this appeal. The defendant No.3 has not filed the appeal challenging the rejection of the counter claim. 13. We have heard the arguments of the learned counsel appearing for both sides. 14. Learned Counsel appearing for the Appellant vehe- mently contended that plaintiff’s consistent contentions are that she had not executed any GPA in favor of defendant No.1 to deal with the suit property. The alleged GPA is a fabricated, forged and falsely created document and on the basis of such a document, no right, title or interest over the suit property could be transferred in - 12 - RFA No. 100187/2020 favor of defendant No.2. The material document to prove the case of the defendants 1 and 2 is the alleged Power of Attorney. Defendants contend that it is an unregistered Power of Attorney. Both the defendants No.1 and 2 did not produce the original Power of Attorney or copy of the same before the court. It is contended by the defendant No.1 and 2 that at the time of registration of the sale deed, original Power of Attorney was given to Office of the Sub Registrar and that was not returned to him and after filing of the suit, he filed an application through process of the court to sum- mon the said document. The office of Sub-Registrar inti- mated that as per the orders of the Registrar, the said document which was not important document, was destroyed. Therefore, he was unable to pro- duce a said document. It is also worth to note that even he has not produced the copy of GPA or a true copy of the said document. The said contention is also not tenable. There is no such procedure to retain GPA produced at the time of registration of the document at their office. If that was the case, defendant No.2 could have obtained copy of the same. Therefore, the contentions of the defendant No.1 that the - 13 - RFA No. 100187/2020 original power of attorney was handed over to the office of Sub Registrar at the time of registration of sale deed is not believable. He further submits that in the said sale deed there is no endorsement that the original power of attorney was given to office of Sub Registrar at the time of registra- tion of the document and the said document was retained in their office. Hence, execution of GPA is not proved. 15. Learned counsel for the plaintiff further contended that the alleged power of attorney is an unregistered document. Under Section 17 of the India Registration Act, it is compul- sory registrable document. Hence, on the basis of such un- registered GPA, defendant No.1 could not have executed sale deed. Therefore even though sale deed is executed by that defendant No.2 will not get any right over the suit property. 16. Learned counsel for the plaintiff further submits that there are no records to prove that defendant No. 1 had paid the said consideration to the plaintiff. In the cross examina- tion of defendant No.2, he has admitted that he purchased agriculture lands in two places through Power of Attorney - 14 - RFA No. 100187/2020 and the owners of such lands had filed the suit before the court and in the both the cases, he lost his case and the sale deeds were set aside. It shows the conduct of defendant No.2. 17. Learned counsel for the appellant further submits that at the time of mutation of the revenue records no notice was given to the plaintiff by the revenue authorities; And without issue of notice the revenue records were mutated. Plaintiff being an illiterate and rustic villager, did not come to know about these facts till recently. Few days prior to filing of the suit when the defendant 2 tried to interfere in the plaintiff's peaceful pos- session and enjoyment of the property, at that time, on en- quiry she came to know these facts. Hence she has filed the suit. The defendant Nos.1 and 2 miserably failed to establish that plaintiff had executed the Power of Attorney in favour of defendant No.1. Execution of the Power of Attorney is not proved by the defendant Nos.1 and 2. Therefore, even if defendant No.1 executed - 15 - RFA No. 100187/2020 registered sale deed in favour of the defendant No.2, it does not bind rights of the plaintiff over the suit property. 18. Learned counsel for the appellant further submits that the trial Court did not consider all these facts. When defen- dant Nos.1 and 2 failed to produce the alleged GPA holding that plaintiff had executed GPA on the basis of a vague statement of PW-1 is erroneous. Unless defendant No.1 proves that he was authorized by the plaintiff to execute the sale deed, the alleged sale deed will not bind the rights of the plaintiff. These facts were not at all considered by the learned trial Judge and erroneously dismissed the suit of the plaintiff. Therefore, prayed to reverse the judgment. 19. Learned advocate for defendant Nos.1 and 2 contended that plaintiff executed General Power of Attor- ney in favor of defendant No.1. To prove the same fact, de- fendant No.1 examined the Notary as DW.4 and got marked registers maintained by the Notary. DW.4 in his deposition has corroborated the evidence of DW.1 and DW.6. There is no reason to disbelieve their evidence and moreover under Section 85 of the Indian Evidence Act, evidence of DW-4 - 16 - RFA No. 100187/2020 shall be accepted and it shall be presumed that all the pro- cedure was duly followed at the time of execution of the General Power of Attorney before the Notary. 20. Learned counsel for the defendant No.2 further submits that original Power of Attorney was submitted to the office of Sub Registrar at the time of registration of the document. The said document was retained by the Sub Reg- istrar. Defendant Nos.1 and 2 did not take it back from the office of Sub Registrar. The defendant No.1 applied to the office of Sub Registrar to return the General Power of Attor- ney submitted at the time of registration or give the true copy of the said document. But the said authorities have is- sued Ex.D.1 stating that it was destroyed. Plaintiff also filed such an application before the office of Sub Registrar and the Assistant Registrar has issued a reply as per Ex.P.11. Both these documents clearly indicate that the said General Power of Attorney was destroyed by the office of Sub Registrar as per the orders of the Registrar. Under such circumstances, defendant Nos. 1 and 2 could not produce the said Power of Attorney. It will not affect the - 17 - RFA No. 100187/2020 rights of the parties. The defendants No.1 and 2 examined the relevant witnesses and taken all the efforts to prove the execution of the document. It is sufficient to believe that the plaintiff has executed the Power of Attorney in favor of de- fendant No.1. 21. Learned Counsel for defendant No.2 further submits that immediately after execution of the sale deed, the defendant No.2 filed application before the Revenue Author- ity for mutation of his name in the revenue records. The Revenue Authorities after issuing notice to the Plaintiff got mutated revenue records. The plaintiff did not object for change of the revenue records. He further submits that the sale deed was executed on 17-09-2003 and suit was filed during the year 2013 i.e., nearly after 10 years. The cause of action shown in the plaint is fictitious. The Defendant No.2 purchased the property for the purpose of cultivation of the land. After paying the sale consideration why any prudent man will not take the possession of the property. Therefore, the said contention of the plaintiff is not believable. The suit is filed to harass the defendant No. - 18 - RFA No. 100187/2020 2 and gulp his property. He also contended that registration of GPA is not compulsory as per Section 17 of the Indian Registration Act. No right over the suit property was created in favour of the defendant No.1 by the said GPA. The office of Sub Registrar did not object to register the sale deed. If really there was such a requirement then definitely the office of Registrar would not have registered the sale deed. All these facts clearly indicates that this suit is filed only to harass the defendant No.2 and with a evil intention to extract money from him. The learned trial judge considering all these facts and appreciating the evidence of both the parties, rightly dismissed the suit and it doesn't call for any interference by this court. Hence, prayed to dismiss the appeal. 22. Following questions emerges for our consideration: I. Whether learned trial Judge erred in holding that plaintiff had executed Power of Attorney in favor of defendant No. 1, authorizing him to execute the sale deed on her behalf. II. Whether learned trial Judge erred in holding that Defendant No.2 became owner of suit property by - 19 - RFA No. 100187/2020 virtue of sale deed executed by Defendant No.1 on the strength of alleged Power of Attorney. III. Whether the learned trial Judge erred in holding that the plaintiff was not in possession of the property? IV. Whether findings of the learned trial judge is arbitrary, perverse & interference by this court is required. V. What order or decree? 23. Point Nos.1 to 4 are interconnected. Therefore, we discuss them together. 24. The crux of this matter is whether plaintiff had executed Power of Attorney in favor of defendant No.1 to sell the suit property belonging to her? Looking to contentions of defendant No.1 & 2, it is burden of the defendants No.1 & 2 to show that plaintiff had executed a Power of Attorney in favour of defendant No.1 to execute the sale deed. Plaintiff has denied execution of such a Power of Attorney. Defendant No.1 did not produce the Power of - 20 - RFA No. 100187/2020 Attorney or copy of the same. According to his contention original Power of Attorney was given to the office of Sub Registrar at the time of registration of the sale deed and the office of Sub Registrar retained the said original GPA with their office and it was not returned. The said document was later destroyed in their office. Therefore he could not produce the same before the court. He has also produced Ex.D.1 to show that the Power of Attorney given by defendant No.1 was destroyed by the office of Sub Registrar as per the directions of District Registrar. 25. The said Power of Attorney was said to be executed on 13-12-2002 and the sale deed was executed on 17-09-2003. Defendant No.1 and 2 even have not produced Xerox copy of the said Power of Attorney to show that such a document was executed by the plaintiff in favour of defendant No.1. It is a material document in this case to prove the contention of defendant No.1. When the material document itself is not placed on the record, it is difficult to believe that plaintiff had executed such a document. In the absence of the said document it is not - 21 - RFA No. 100187/2020 possible to know the contents of the said General Power of Attorney said to be executed by the plaintiff in favour of defendant No.1, it is a fatal to the contentions of the defendant Nos.1 and 2. 26. The reasons for execution of the Power of Attorney in favour of defendant No.1 is also very much necessary to probabalise contention of defendant No.1. During the cross-examinations of PW1, it was brought out by the defendants that plaintiff has husband and children. If so then why she would execute a Power of Attorney in favour of unknown person, for execution of the sale deed? According to contentions of defendant No.1, both Plaintiff and defendant No.1 are residents of the same village and it is disputed by the plaintiff. Defendant No.1 did not brought out in the cross examination of PW1 that he was nearest relative or close family friend and plaintiff had faith and trust on him. DW1 in his evidence also not stated about the same. It is also not his case that he paid value of the said property to plaintiff and hence she had executed GPA in his favour. - 22 - RFA No. 100187/2020 27. Normally power of attorney will be given to a person on whom executant’s has faith, trust and confidence that such person would protect his/her interest and he would perform the work given to him properly. During the cross-examination of PW-1 she denied suggestions of defendant No.1 that defendant No.1 was a well-known person to her and hence she executed GPA in his favour. These facts create serious doubt in the mind of a prudent person about execution of GPA in favour of defendant No.1. It is also worth to note that sale talks were not held in the presence of plaintiff. It is also not the case of defendant No.1 that prior to execution of Power of Attorney, he paid substantial money to the plaintiff, to meet her financial constraints, therefore, she executed the Power of Attorney in his favour. Hence, It is difficult to believe that a rustic villagers having husband and children would execute GPA in favour of an unknown person to deal with the property belonging to her. Said facts are not probable. - 23 - RFA No. 100187/2020 28. In view of the non-production of original or at least Xerox/true copy of alleged GPA, it is not possible to hold that plaintiff had executed the GPA authorizing defendant No.1 to execute the sale deed in respect of suit property. For the reasons discussed above, it is also difficult to believe that plaintiff had executed such a document in favour of defendant No.1. 29. Defendant No.2 contends that on the basis of disputed power of attorney, defendant No.1 has executed the sale deed in his favour. But defendant No.2 did not produce original sale deed before the court. Plaintiff has pro- duced certified copy of the said document as Ex.P5 and cer- tified Xerox copy of the said sale deed before the Court at Ex.P8. Defendant Nos.2 (DW6) in his evidence, very casu- ally says that he kept the sale deed in his car and it was misplaced and it was not traceable. Therefore, he could not produce the original sale deed before the court. The said reasons assigned by defendant No.2 is also not believable. 30. In the impugned judgment at paragraph No.29 Page No. 77. The learned trial Judge has extracted evidence of - 24 - RFA No. 100187/2020 PW.1, wherein she has stated that she had seen the Power of Attorney in the office of Village Accountant and she had given the said information to her Advocate while conducting this case. On that basis learned trial Judge held that she had knowledge about the said GPA but did not chal- lenge the same. 31. Learned counsel for respondent contends that the said evidence clearly indicates that she had seen the power of attorney executed by her in favour of Defendant No.1 and she has deliberately suppressed the said power of attorney and not produced before the court. The said submission of learned counsel for the defendant is not tenable. It is a stray sentence. It is not the case of defendant No.1 and 2 that they gave a copy of Power of At- torney to Village Accountant to make mutation in the reve- nue records. Hence, question of PW-1 could see the GPA in the office of village accountant is not possible and said evi- dence is a mistake of facts. No grounds are made out by the defendants to show that evidence of PW-1 is unreliable. - 25 - RFA No. 100187/2020 32. If we peruse the evidence of DW.1 to 7, it indicates that execution of GPA by the plaintiff is doubtful. The plaintiff is able to prove that she had not executed the Power of Attorney. The defendant No.1 and 2 failed to prove the said contention. 33. The evidence of DW1 and DW2 do not help their contention in view of non-production of material documents. Defendant No.1 without producing the power of attorney, intended to prove it. He examined DW4, who is a Notary Public, serving in Saundatti. DW4 on the basis of the Register produced by him at Ex.D3 has stated that a lady by name Padmavathi executed power of attorney in his presence, in favour of defendant No.1 and she signed on the power of attorney as well as Register at Ex.D3(c). In the cross-examination, the plaintiff denied her signature at Ex.D3(c). In the further cross-examination, he has stated that, defendant No.1 was residing in the house of plaintiff and he was looking after her. The said fact was told to him by defendant No.1 and it was accepted by the plaintiff. - 26 - RFA No. 100187/2020 34. The said power of attorney was executed on 13.12.2002 and he was examined on 03.08.2019, the said power of attorney is not produced before the Court. In Ex.D3 there is no reference about the above said fact. “He further says that he cannot identify the plaintiff in the Court. He has not enquired with the plaintiff about the contents of the GPA. The parties to the suit have not signed in the presence of the scribe. The witnesses to the GPA were not present before him and signed it. The advocate was present on behalf of the plaintiff and he also signed on the power of attorney, identifying the signature of the plaintiff.” All these evidence are relevant if power of attorney is placed on record. In view of the absence of GPA, the evidence of DW-4 do not help the contention of defendant Nos.1 and 2. 35. DW2, DW3 and DW5 are Managers of the Banks. They were examined to prove that the plaintiff has an account with their respective Banks and she signed on the account opening forms. It appears that during the cross- examination, PW1 denied that normally she put her thumb impression as her signature on the documents. She has - 27 - RFA No. 100187/2020 denied of having account in the Banks. To disprove the same, DW2, DW3 and DW5 were examined. They have produced the account opening forms containing the signature of plaintiff. The said evidence of DW2, DW3 and DW5 may help the defendants to prove that she has not put her LTM on the documents as signatures and on the contrary she used to sign the documents. Merely proving the same, it will not be sufficient to presume that she had executed GPA in favour of defendant No.1. Had defendant No.1 produced the said power of attorney, then it could have helped the Court to compare the signature of the plaintiff on the bank documents with the said GPA. 36. DW6 is defendant No.2; he has reiterated the contention in the written statement. In his cross- examination, he admits that plaintiff has got agricultural lands and her husband and children cultivating the said lands. He has also stated that he did not enquire with the plaintiff about the sale of the property. He has also stated about purchase of some more properties and suits filed by the sellers of said lands challenging sale deeds. The said - 28 - RFA No. 100187/2020 evidence of DW6 shows that all is not well with him. He did not produce the original sale deed said to be executed by defendant No.1. DW6 (defendant No.2) is not a rustic villager. He purchased some other lands and he has been facing litigation in that respects. When such is a fact, at least he could have taken Xerox copy of the GPA said to be executed by the plaintiff. He did not explain why he did not take back the original GPA said to be submitted to the Office of the Registrar, at the time of presentation of the sale deed for registration. The reason assigned by defendant No.1 and 2 regarding keeping the original GPA in the Office of Sub- Registrar appears to be story built up only to protect their interest. These facts create serious doubt about the execution of the GPA by plaintiff in favour of defendant No.1. 37. The learned Trial Judge did not appreciate the evidence of the witnesses examined by both the sides in the right perspective. The learned trial Judge accepted the evidence of DW4 in the absence of GPA said to be executed by the plaintiff. Unless material documents are placed on record, holding that it was executed by the plaintiff is incorrect and - 29 - RFA No. 100187/2020 contrary to law. There are no materials to show that the plaintiff had knowledge about the execution of the sale deed in favour of defendant No.2 and mutation of the revenue records in his name, immediately after the said transaction. The trial Judge has held that the plaintiff having knowledge about the transaction kept silent for about 10 years. The said observation is not based on materials. Therefore, opinion that deliberately she was not telling truth before the Court is incorrect findings. In view of the said reason, the finding of the Court is erroneous, arbitrary and perverse, that call for interference. 38. Defendant No. 3 is examined himself as DW-8. In his evidence, he has stated that there was no partition in the properties between him and plaintiff. From the cross- examination of PW-1 one can infer that there was a partition between herself and defendant No.3. It is also not in dispute that long back survey No.449 was divided/phoded and portion given to the share of plaintiff was given survey number as 449/1 and portion given to the share of defendant No.3 was given survey number as 449/2. - 30 - RFA No. 100187/2020 The said RTCs were placed before the trial court. If there was no partition and the records were not mutated, then how could the revenue authorities have divided/phoded the property and given a different subdivision number to both the properties is not explained by the defendant No.3. Hence, learned trial Judge rightly rejected counter claim of defendant No.3. 39. We have reconsidered and re-appreciated the evidence of both the parties. We are of the view that defendant No.1 failed to prove that plaintiff has executed the Power of Attorney in his favour. Therefore, defendant No.2 cannot become owner of suit property on the basis of sale deed executed by defendant No.1. 40. The learned trial Judge did not appreciate evidence of PW.1 properly. The learned trial Judge extracted certain statement made by PW-1 during her evidence and held that she had executed GPA in favour of defendant No.1. The learned trial Judge has not properly appreciated pleadings and evidence on record and erroneously held that Plaintiff had executed the Power of Attorney in favour of defendant - 31 - RFA No. 100187/2020 No.1 and defendant No.1 had executed the sale deed in favour of defendant No. 2 as GPA of plaintiff. The said findings are erroneous and hence, interference by this court is required. 41. For the aforesaid discussions, we answer point Nos.1 to 4 in the negative and proceed to pass following: ORDER (i) The appeal is allowed. No costs. (ii) The Judgment and decree passed by the learned Senior Civil Judge, Saundatti in O.S No.77 of 2013, dated 21.12.2019 is set aside. (iii) Plaintiff is declared as owner and in possession of the suit property. The GPA dated 13-12-2002 executed in favour of defendant No.1 and the sale deed dated 17-09-2003 executed by the defendant No.1 in favour of defendant No.2 is not binding on the rights of the plaintiff. (iv) Defendants are restrained from interfering in the plaintiff’s peaceful possession and enjoyment of the suit property. - 32 - RFA No. 100187/2020 (v) Office is directed to draw decree accordingly. (vi) Send back the TCR along with a copy of this judgment to the trial Court. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE AG/-