SUNKAMMA (D) BY LRS.versusS. PUSHPARAJ (D) BY LRS.

                             [2017) 14 S.C.R. 488



A                        SUNKAMMA (D) BY LRS.
                                      v.
                        S. PUSHPARAJ (D) BY LRS.
                       (Civil Appeal No. 2225 of2007)
B                           DECEMBER 14,2017
             [R. K. AGRAWAL AND R. BANUMATHI, JJ.]
         Possession - Law.fit! possession of property - Appellants/
  defendants disputed the title and possession of the plaintiff over
C suit property-site 110.47 - Respondent/plaintiff claimed the
  possession over the suit property by virtue of agreement of sale
  with PW-2 and registered general power of attorney executed in his
  favour by PW-2 - Trial court dismissed the suit filed by plaintiff to
  restrain the defendants from interfering with plaintiff's peaceful
  possession o,fproperty - However, High Court accepted the claim
D of plaintiff's possession - Held: Appellants have mereZv averred
  that the documents i.e. agreement of sale and registered general
  power of attorney are forged and not acceptable - Nothing further
  has been elicited from PW-2 to show that he had no right to sell suit
  property-site no.47 to the plaintiff - Plaintiff only sought for
E permanent injunction before the Courts below in which he is only
  requil'ed to prove that he is in /av.fit! possession of the suit property
  - The findings of the High court based upon the general power of
  attorney and the evidence of PW-2 favouring plaintiff that he is in
  possessio/1' of suit property-site no.47. cannot be said to be perverse
  warranting interference.
F
         Dismissing the appeal, the Court
           HELD: 1. Though the appellants/defendants disputed the
    title and possession of the plaintiff over site no.47, the defendants
    have merely averred that the documents relied upon by the
    plaintiff that is agreement of sale and general power of attorney
G   are forged and not acceptable. Nothing further has been elicited
    from PW2 fo show that he had no right to sell site no.47 to the
    plaintiff. The defendants went to the extent of denying the identity
    of PW-2. Be it noted, the plaintiff's suit was only for permanent
    injunction in which the plaintiff is only required to prove that he
H
                                     488
   SUNKAMMA (D) BY LRS. v. S. PUSHPARAJ (D) BY LRS.                     489



is in lawful possession of the suit property. The High Court based      A
upon the general power of attorney and the evidence of PW2
held in favour of plaintiff that he is in possession of site no.47.
These findings of fact cannot be said to be perverse warranting
interference. [Para 6](491-G-H; 492-A-B)
      2. Contention of appellants/defendants is that site no.47 is      B
not covered under sale deed dated 21.04.1975 in favour of PW-2
vide which defendant had sold land to PW-2. Further, contention
of appellants is that merely on the basis of registered power of
attorney, title and ownership of immovable property (site no.47)
could not have been transferred to the plaintiff. The Court is
refraining from going into the merits of this contention for two        C
reasons. Firstly, since the present suit and further appeal thereon
emanates from the suit pertaining to permanent injunction where
the touchstone upon which the suit has to be decided is "lawful
possession" and not "ownership". Secondly, appellants/
defendants have filed separate suit against PW-2 and the                D
respondents, for a declaration that appellants are the owners of
'B' Schedule property thereon (which includes site no.47) and
other reliefs. It is clear from the additional documents filed, the
said suit has been dismissed against which an appeal is said to
have been filed and pending. Therefore, Court not to express
any opinion on the question of title and ownership of respondent/       E
plaintiff on the basis of registered general power of attorney. [Para
7)(492-C-E]
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2225
of2007.
                                                                        F
      From the final Judgment and Order dated 24.08.2006 of the High
Court of Kamataka at Bangalore in R.F.A. No.1100/2003 connected
with R.F.A. No.l 083/2003.
       P.S. Dutta, Sr. Adv., Karunakar Mahalik, B. Vishwanath
.Bhandarkar, Priyang Nath i;hukla, V.N. Raghupathy, Advs. for the       G
'Appellant.
:·   Shailesh Madiyal, Mahesh Thakur, Sudhanshu, Advs. for the
Respondent.


                                                                        H
490             SUPREME COURT REPORTS                         [2017] 14 S.C.R.


A              The Judgment of the Court was delivered by
              R. BANUMATHI, J. 1. This appeal arises out of the common
      judgment of the High Court ofKarnataka at Bangalore dated24.08.2006
      in and by which the High Court allowed RF.A. No.1100 of2003 preferred
      by respondent No. I/ plaintiff thereby decreeing the suit for permanent
B     injunction in respect of site no.47 and dismissing R.F.A.No.l 083 of2003
      preferred by appellants/defendants in respect of site no.53.
              2. Appellants/defendants were owners ofland measuring 3 acres
      30 guntas in Sy. No. 255 of Dodda Banasawadi Village, K.R. Puram
      Hobli, Bangalore, South Taluk. Out of which, the defendants sold 39
      guntas of land to Madhavan Pillai (PW2) under a registered sale deed
C     dated 21. 04.197 5. After the purchase, Madhavan Pillai formed a layout
      plan (Ex.PS) of site no.4 7, as per which the site no.4 7 is on the eastern
      side of site no.53. The matter in dispute pertains to two sites namely site
      no.47 and site no.53 in Sy. No.255 ofDodda Banaswadi Village which
      are adjoining each other and forming part of 39 guntas ofland. Plaintiff
D     had filed a suit for permanent injunction in O.S.No.424of1995 restraining
      the defendants from interfering with plaintiff's peaceful posse'ssion of
      suit property - both sites no.4 7 and 53 and the suit was partly decreed by
      the trial court by judgment dated 12.06.2003 restraining the appellants/
      defendants from interfering with plaintiff's peaceful possession and
      enjoyment of site no.53. So far as site no.47, the trial court dismissed
E     the suit. Being aggrieved by the judgment and decree of the trial court,
      the plaintiff filed R.F.A. No.1100 of2003 challenging the dismissal of
      suit in regard to site no.47. Similarly, defendants filed R.F.A. No. I 083
      of2003 challengingjudgmcnt and decree in respect of site no.53. By
      common judgment, the High Court allowed the appeal filed by respondent/
F     plaintiff in regard to site no.4 7 and dismissed the appeal filed by the
      defendants.
         3. Case of respondent/plaintiff is that site no.53 was sold by
  Madhavan Pillai (PW2) to plaintiff by way of a registered sale deed
  dated 16.06.1975. In support of his claim of ownership and possession in
G site no.5 3, plaintiff had produced judgment and decree of the earlier suit
  in 0. S. No.1756of1982 dated 26.08.1985 in his favour restraining the
  defendants from interfering with his peaceful possession of the suit
  property which was subsequently confirmed by the High Court in RF.A.
  No.86of1986 by judgment dated 21.02.1986. Based on the evidence of
  respondent/plaintiff (PW!), Madhavan Pillai (PW2) and the decree in
H O.S.No.1756of1982, the trial court held that the rcspondcnt/plaintiffis
  i·SUNKAMMA (D) BY LRS. v. S. PUSHPARAJ (D) BY LRS.                        491
                 [R. BANUMATHl, J.)

the owner of the property in site no.53 and granted permanent injunction. A
Even though defendants challenged the judgment in favour ofrespondent/
plaintiff with respect to site no.53, before the High Court, it was stated
before us that there is no serious dispute between the parties with respect
to site no.53.
          4. Site No.47: So far as site no.47 is concerned, Plaintiff had B
produced an agreement of sale dated 09.09.1986, by virtue of which
Madhavan Pillai (PW2) agreed to sell site no.47 to the plaintiff for a
consideration ofRs.48,000/- and the entire sale consideration ofR~.48,000/
- had been paid to Madhavan Pillai. But plaintiff stated that due to ban
of registration of revenue sites, Madhavan Pillai (PW2) executed a
~~gistered general powerofattomey dated 03 .05 .1988 in favour of plaintiff C
and that pursuant to the general power of attorney, plaintiff has been in
possession and enjoyment of site no.47. As plaintiff's case was not
supported by a registered sale deed, the trial court declined to accept the
~!aim·,,.It("•""
(..
          of plaintiff with respect to site no.4 7
11     5. In appeal, the High Court noted that the trial court failed to take D
into consideration the testimony of Madhavan Pillai (PW2) wherein he
deposed to the effect that he agreed to sell site no.4 7 to plaintiff and that
he had executed a registered general powerof attorney dated 03.05.1988.
PW2-Madhavan Pillai had also stated that the sale deed could not be
executed as there was a ban ofregistration ofrevenue sites. Madhavan E
Pillai stated that in 39 guntas of land which he had purchased from the
defendants, he formed a layout, 20 feet road was proposed in between
sites no.53 and 47. PW2 further stated that since Bangalore Development
Authority (BDA) formed the road in the western portion of Sy. No.255,
the road in between sites no.47 and 53 was given up and the revised
layout plan for 20 feet ro,ad was formed (Ex.P9). Madhavan Pillai stated F
that respondent/plaintiff is in possession of sites no.4 7 and 53. Based on ·
!he evidence of PWs 1 and2 and the general power of attorney (Ex.P7),
the High Court held that the plaintiff is in possession of site no.47 and
granted permanent injunction in favour of the plaintiff.
       6. Though the appellants/defendants disputed the title and a·
possession of the plaintiff over site no.47, the defendants have merely
averred that the documents relied upon by the plaintiff that is agreement
of sale (09.09.1986) and general power of attorney (03.05.1988) are
forged and not acceptable. Nothing further has been elicited from PW2
to show that he had no right to sell site no.47 to the plaintiff. The H
492                SUPREME COURT REPORTS                      [2017] 14 S.C.R.


A defendants went to the extent of denying the identity of Madhavan Plllai
  (PW2). Be it noted, the plaintiff's suit O.S.No.424of1995 was only for
  pennanent injunction in which the plaintiff is only required to prove that
  he is in lawful possession of the suit property. The High Court based
  upon the general power of attorney and the evidence of PW2 held in
B favour of plaintiff that he is in possession of site no.47. These findings
  of fact cannot be said to be perverse warranting interference.
         7. Contention of appellants/defendants is that site no.47 is not
  covered under the sale deed in favour of Madhavan Pillai (21.04.1975).
  Further contention of appellants is that merely on the basis of registered
C power ofattorney, title and ownership ofimmovable property (site no.47)
  could not have been transferred to the plaintiff. We refrain from going
  into the merits of this contention for two reasons. Firstly, since the
  present suit and further appeal thereon emanates from the suit pertaining
  to permanent injunction where the touchstone upon which the suit has to
  be decided is "lawful possession" and not "ownership". Secondly,
D appellants/defendants have filed separate suit in O.S.No.5327 of 1995
  against Madhavan Pillai and the respondents, for a declaration that
  appellants are the owners of 'B' Schedule property thereon (which
  includes site no.47) and other reliefs. As seen from the additional
  documents filed before us, the said suit has been dismissed on 17.12.2016
  against which an appeal is said to have been filed and pending. Therefore,
E we deem it appropriate, not to express any opinion on the question of
  title and ownership of respondent/plaintiff on the basis of registered
  general power of attorney.
             8. The present appeal arises out of the suit filed by plaintiff/
      respondent for pennanent injunction and the courts below rightly decided
 F    the same on the question of possession. Based on the general power of
      attorney and the evidence of PWs I and 2, the High Court rightly held
      that the plaintiff is in possession and we do not find any reason warranting
      interference.
             9. In the result, the appeal is dismissed. No costs.
 G

      Ankit Gyan                                                    Appeal dismissed.