- 1 - HC-KAR NC: 2025:KHC:27046 RSA No. 2628 of 2007 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 2628 OF 2007 BETWEEN: 1. JOSEPH VIVIAN LOBO, S/O THOMAS S LOBO, AGED ABOUT 72 YEARS, SINCE DECEASED REP. BY HIS LRS (a). MRS MYRTLE LOBO, W/O LATE JOSEPH VIVIAN LOBO, AGED ABOUT 78 YEARS, (b). MR IVAN LOBO, S/O LATE JOSEPH VIVIAN LOBO, AGED ABOUT 52 YEARS, BOTH RESIDING AT LOBO GARDENS, KADRI TEMPLE ROAD, MANGALORE - 575002. (AMENDED IN COMPLIANCE WITH ORDER DT 17.04.2021) …APPELLANTS (BY SRI VASANTH V FERNANDES, ADVOCATE FOR A1(A&B)) AND: RUDOLPH EDWARD LOBO, S/O THOMAS S LOBO, AGED ABOUT 65 YEARS, KADRI TEMPLE ROAD, MANGALORE-575 002. …RESPONDENT (BY SRI A KESHAVA BHAT, ADVOCATE FOR CAVEAT RESPONDENT) Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27046 RSA No. 2628 of 2007 THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 03.07.2007 PASSED IN RA.NO.324/2004 ON THE FILE OF THE II ADDL.DISTRICT JUDGE, D.K. MANGALORE, DISMISSING THE APPEAL AND UPHOLDING THE JUDGEMENT AND DECREE DATED 19.03.96 PASSED IN O.S.NO.44/1994 ON THE FILE OF THE IV ADDL. MUNSIFF, MANGALORE, D.K. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT Heard learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 2. This appeal is arising from a concurrent finding in a suit for injunction. 3. The Trial Court decreed the suit. The First Appellate Court dismissed the appeal by the defendant. Hence, this second appeal by the defendant. 4. This appeal was admitted on 19.08.2009 to answer the following substantial question of law: "Whether the Courts below were justified in decreeing the suit of the plaintiff-respondent ignoring the gift deeds at Ex.D.9 and Ex.D.10?" - 3 - HC-KAR NC: 2025:KHC:27046 RSA No. 2628 of 2007 5. The admitted facts are: - there was a compromise decree between the plaintiff, defendant and their mother. In terms of the said decree, certain properties were allotted to the plaintiff and the defendant. Their mother retained a life interest. 6. The present suit is filed by the plaintiff on the premise that in the said settlement, the suit property is allotted to the share of the plaintiff. Plaintiff filed a suit alleging interference by the defendant. 7. Defendant contested the suit. Defendant took a stand that plaintiff executed a power of attorney in favour of defendant's wife, and she acting on the said power of attorney, executed a gift deed in favour of the defendant in respect of the suit property and prayed for dismissal of the suit. 8. The Trial Court framed following issues: "(1) zÁªÁ C£ÀĸÀÆavÀ ¸ÀévÀÄÛ zÁªÁ ºÀÆqÀĪÀ PÁ®PÉÌ ªÁ¢AiÀÄ ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°èvÀÄÛ JAzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¸ÀĪÀgÉÃ? (2) zÁªÁ C£ÀĸÀÆa ¸ÀéwÛ£À ªÁ¢AiÀÄgÀ ªÀ»ªÁnUÉ CAzÀgÉ ªÁºÀ£À ¸ÁUÁlPÉÌ CrØ DvÀAPÀ ¥Àr¸ÀÄwÛzÁÝgÉAzÀÄ ªÀÄvÀÄÛ ¨ÉÃqÀªÁzÀ ªÀ¸ÀÄÛUÀ¼À£ÀÄß J¸ÉzÀÄ vÉÆAzÀgÉ PÉÆqÀÄwÛzÁÝgÉAzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¸ÀĪÀgÉÃ? (3) K£ÀÄ rQæ CxÀªÁ DzÉñÀ DUÀ¨ÉÃPÀÄ?" - 4 - HC-KAR NC: 2025:KHC:27046 RSA No. 2628 of 2007 9. The Trial Court held that the plaintiff is in possession of the suit property and decreed the suit. The defendant's appeal is also dismissed confirming the decree. 10. Learned counsel appearing for the defendant/appellant would contend that he has produced the proof relating to the execution of the power of attorney as well as the gift deed. It is his submission that the original power of attorney and the gift deed were retained by the plaintiff and the defendant has handed-over the same as per the request of the plaintiff and thus, he is enabled under law to produce secondary evidence of the power of attorney and the registered gift deed. Same were produced and without considering those documents, the Trial Court has decreed the suit invalidating the registered gift deed. 11. It is his further submission that without framing any issue relating to the validity of the gift deed and the power of attorney, the Court could not have decreed the suit holding that the gift deed is invalid or the power of attorney is not proved. - 5 - HC-KAR NC: 2025:KHC:27046 RSA No. 2628 of 2007 12. Learned counsel for the appellant would further submit that the First Appellate Court has also committed the same mistake of deciding on the validity of the gift deed without there being any issue on the validity of the gift deed. Thus, it is urged that the suit has to be dismissed and the Court has to uphold the execution of the gift deed as well as the power of attorney as both documents are established by leading secondary evidence. 13. Learned counsel for the respondent would submit that the plaintiff has never executed the power of attorney in favour of the wife of the defendant and wife of defendant was not competent to execute a gift deed and gift deed is not acted upon. 14. Learned counsel appearing for the plaintiff/respondent would also submit that the suit is only for bare injunction. The Court had granted the liberty to the defendant to file a suit to establish his claim if any, based on the title deed. Thus, the judgment does not affect the right of the defendant if any, subject to he establishing his claim in a properly constituted suit. - 6 - HC-KAR NC: 2025:KHC:27046 RSA No. 2628 of 2007 15. This Court has considered the contentions raised at the bar and perused the records. 16. As could be seen from the pleadings, the suit is only for bare injunction. Plaintiff does not make any reference to the gift deed or the power of attorney in the plaint. 17. It is the defendant who has come out with the defence based on the gift deed and the power of attorney. No issue is framed relating to the proof/validity of the gift deed and the power of attorney. However, it is noticed that the Trial Court has held that the gift deed is invalid. However, in paragraph 19 of the judgment, the Court has come to the conclusion that it cannot get into the question of the validity of the gift deed. 18. The First Appellate Court has also affirmed the said finding. 19. Since the Court itself has come to two different conflicting conclusions viz., (a) that the gift deed is invalid (b) the question relating to the validity of the gift deed cannot be looked into in this case, this Court is of the view that there has - 7 - HC-KAR NC: 2025:KHC:27046 RSA No. 2628 of 2007 to be a proper adjudication on the gift deed asserted by the defendant in a properly constituted suit. 20. It is further noticed that the First Appellate Court has made the following observations: "Defendant may file separate suit to establish his title over the disputed area". 21. It is noticed that the First Appellate Court has reserved the liberty to the defendant to file suit if needed. 22. This Court is of the view that the plaintiff should also be given a liberty to file a suit to establish his claim if he desires to institute the suit challenging the gift deed or the power of attorney. 23. Since the question relating to the gift deed is decided without any issue, this Court is of the view that the finding of the Trial Court as well as the First Appellate Court on the validity of the gift deed and the power of attorney has to be set-aside. Accordingly, the findings relating to the validity of the power of attorney or the gift deed are set-aside. - 8 - HC-KAR NC: 2025:KHC:27046 RSA No. 2628 of 2007 24. Liberty is reserved to both the parties as to file an appropriate suit for appropriate relief as advised in law. 25. It is brought to the notice of this Court that records produced by the parties before the Trial Court are misplaced and pursuant to the direction issued by this Court the file is reconstructed. 26. The parties are permitted to use the certified copies of the reconstructed documents before the Trial Court, in case any suit is filed. 27. Since the suit is decreed and the appeal is dismissed and there was no stay order granted by this Court, this Court would modify the decree for injunction by holding that the said decree shall be operative as long as the appellant's title over the suit property is not established in the suit to be filed. 28. In case, in the subsequent suit to be filed if appellant's title is established then, the decree for injunction does not come in the way of granting appropriate consequential relief (if claimed) in favour of the appellant. - 9 - HC-KAR NC: 2025:KHC:27046 RSA No. 2628 of 2007 29. In case, the appellant fails to establish his title over the property, the decree for permanent injunction shall operate against the appellant. All other contentions are left open. Sd/- (ANANT RAMANATH HEGDE) JUDGE BRN List No.: 1 Sl No.: 70