VIJAYALAKSHMI Vs. MUDASSIR ASLAM KHAN AND ORS.

JUDGEMENT

(1.) These two petitions have been filed seeking to quash the impugned order passed by the I Additional Senior Civil Judge, Kolar in M.A. No. 66/2013 and M.A. No. 61/2013 respectively dated 19.12.2014 produced as per Annexure 'F'.

(2.) Heard the arguments of learned counsel for the respective parties in both the petitions.

(3.) In W.P. No. 8905/2015 learned counsel for the petitioner during the course of her arguments has submitted that petitioner -defendant has purchased two sites bearing Nos. 29 & 30, V.P. Khata No. 493 and 494 respectively of Petechamanahalli Village, Kasaba Hobli, Kolar Taluk within the limits of Dodda Hasala Gram Panchayat from its vendor under the registered sale deed dated 22.8.2012. The sites were carved out of three survey numbers i.e., Sy. Nos. 105, 106 and 107 of Petechamanahalli, Kasaba Hobli, Kolar Taluk. It is the case of the respondents -plaintiffs that the vendor one Venkatachalapathi and his father Venkataramanappa have executed registered General Power of Attorney in the year 1991 in respect of the very suit schedule properties in favour of the plaintiffs, under which, they came to be in possession of the said sites. The Trial Court considered the application I.A. No. 1 filed by the plaintiffs for temporary injunction on merits and during the course of its order has observed that materials placed on record shows that the owner of the property has cancelled the earlier Power of Attorney executed on 25.5.1991 in favour of Ameerjan and Mudasir Aslam Khan on 27.04.1992 and on the same day another General Power of Attorney was executed by Venkatachalapathi and Venkataramanappa in favour of the respondents -plaintiffs, which itself creates serious doubt in the case of the respondents -plaintiffs. Learned counsel has submitted that petitioner came into possession of the suit schedule properties and the name of the petitioner was mutated and she started construction work and also completed the same, whereas the respondents -plaintiffs have not produced any document to show their possession and title over the said properties. Though total extent of the property owned by Venkataramanappa and Venkatachalapathi is 2 acres 39 guntas, but the General Power of Attorney is only in respect of 2 acres and what has happened with regard to 39 guntas of land is also not mentioned by the respondents -plaintiffs. Hence, she has submitted that the Trial Court has considered all these aspects of the matter and rightly dismissed the application filed by the respondents -plaintiffs in O.S.674/2013. It is submitted that respondents -plaintiffs have challenged the said order by filing the Miscellaneous Appeal No. 66/2013 before the First Appellate Court. Though the First Appellate Court in its judgment has observed that there is no perverse or capricious view taken by the Trial Court, but it has wrongly allowed the appeal in -part and directed the parties to maintain status -quo. Hence, she has submitted that the said view taken by the First appellate Court interfering with the order passed by the Trial Court is illegal and the First Appellate Court ought not to have been allowed the appeal. It is also submitted by the learned counsel for the petitioner that as the scope in the Miscellaneous Appeal is limited, the judgment rendered by the First Appellate Court is not sustainable in law. Hence, she has submitted to allow the petition and to set -aside the order passed by the First Appellate Court. In support of her contentions, learned counsel for the petitioner -defendant has relied upon the decision of the Hon'ble Supreme Court reported in : (2006) 5 SCC 282 in the case of Seema Arshad Zaheer and others v/s. Municipal Corporation of Greater Mumbai and others and drawn the attention of this Court to the relevant paragraphs of the said decision.