Aandroose v. C.L. Theodar

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 01.08.2022 DELIVERED ON : 12.08.2022

CORAM:

THE HONOURABLE MR.JUSTICE P.VELMURUGAN and M.P.(MD)No.2 of 2012 1.Aandroose 2.C.Sivaramasankaran 3.M.Kannan ... Appellants / Defendants 1, 3 & 4 -Vs1.C.L.Theodar 2.C.M.Tharsilammal ... Respondents 1 and 2 / Plaintiffs 3.R.Charlas 4.P.Saroja 5.P.Gopalakrishnan 6.K.Murugammal ... Respondents 3 to 6 / Defendants 2, 5 to 7 (Respondents 4 & 5 remain ex-parte in lower Court. Hence, notice may be dispensed with).

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PRAYER : Appeal Suit is filed under Section 96 of the Code of Civil Procedure to set aside the decree and Judgment dated 05.09.2011 made in O.S.No.87 of 2009, on the file of the Additional District Sessions Court, Fast Track Court No.I, Tirunelveli.

For Appellants : Mr.R.T.Arivukumar For R1 : Mr.S.Srinivasa Raghavan For R2 : Died For R3 : No Appearance For R6 : Mr.N.Balakrishnan

JUDGMENT

The respondents 1 and 2 / plaintiffs had filed the suit in O.S.No. 87 of 2009, on the file of the learned Additional District and Sessions Judge, Fast Track Court No.I, Tirunelveli, seeking declaration and permanent injunction, wherein the appellants and the respondents 3 to 6 are the defendants. 2.The brief facts of the plaint are as follows:- (i)The 1st plaintiff is the son of the 2nd plaintiff. The 2nd plaintiff was in possession and enjoyment of the suit property through the sale deeds dated 18.06.1962 and 09.05.1968. The suit property is a vacant site. The patta had also 2/26

been issued in respect of the suit property in the name of the 2nd plaintiff in Patta No.1175. The 2nd plaintiff has executed a settlement deed in favour of the 1st plaintiff on 04.08.2006. From that date onwards, the 1st plaintiff is in possession and enjoyment of the suit property. The 1st plaintiff is working in Ooty and the 2nd plaintiff is the aged person and residing at Nagercoil. Taking advantage of the same, the 1st defendant has created a power deed, as if the 2nd plaintiff has executed a power deed in favour of the 1st defendant on 11.01.2002. The 2nd plaintiff has never executed any power deed in favour of the 1st defendant. The power of attorney dated 11.01.2002 is a forged document. The 2nd plaintiff has never signed any document in Tamil and never intended to sell the property.

(ii)Based on the said forged power of attorney, the 1st defendant has sold some portion of the second item in the suit property to the 2nd defendant on 18.01.2006. In turn, the 3rd defendant as a power agent of the 2nd defendant has sold the same to the 4th defendant on 04.10.2006. Based on the said agreement dated 04.10.2006, the 4th defendant has requested the Tahsildar, Palayamkottai to issue patta and the same was rejected on 30.04.2007, directing the 4th defendant to get relief through the Civil Court.

filed an appeal before the Revenue Divisional Officer, Tirunelveli and the Revenue Divisional Officer has ordered to issue joint patta to the 4th defendant on 18.07.2008. Aggrieved by the same, the plaintiffs have filed an application before the District Revenue Officer and the same is pending. (iii)In the meanwhile, it came to light that the 6th defendant has created a sale agreement as if the 2nd plaintiff has executed a sale agreement in favour of the 6th defendant in respect of the suit property on 20.05.2004. Thereafter, the 6th defendant has cancelled the same on 16.11.2004. The said two documents are forged. The 5th defendant and her husband, namely, Paramasivan are also colluded with the other defendants. The 1st defendant filed a suit in O.S.No.

651 of 2005 on the file of the Principal District and Sessions Court, Tirunelveli against the plaintiffs and the husband of the 2nd plaintiff, seeking declaration in respect of power of attorney and permanent injunction. In order to get ex-parte decree, the 1st defendant has given wrong address of the plaintiffs in the suit. When the matter stood thus, the plaintiffs went for inspection of the suit property and applied for encumbrance. On 18.07.2006, they got encumbrance certificate.

Tirunelveli. Based on the same, a First Information Report has been registered in F.I.R.No.06 of 2007 against the defendants 1, 2 and 6 and the same is pending. (iv)In the meanwhile, the 2nd plaintiff has sent notice to the defendants 1 and 2. After receiving the same, they sent reply notice on 31.07.2006, wherein O.S.No.651 of 2005 is mentioned. After knowing the same, the plaintiffs are contesting the said suit. The patta in respect of the items 1, 3 and 5 of the suit property wrongly stands in the name of the 7th defendant. Therefore, the 2nd plaintiff has filed an application before the Tashildar, Palayamkottai, seeking correction of the name.

The Tahisldar directed the 2nd plaintiff to approach the Revenue Divisional Officer and get relief, in turn, the Revenue Divisional Officer has directed the 2nd plaintiff to get relief from the Civil Court. Therefore, the plaintiffs have filed the suit, seeking for declaration and permanent injunction. 3.The brief facts of the written statement filed by the defendants 1 to 3 are as follows:- The suit is not maintainable and the plaintiffs are not entitled to the relief of declaration and permanent injunction.

measured properly and the plaintiffs have no locus standi to file the suit. The plaintiffs have to prove the fact that the 2nd plaintiff was in possession and enjoyment of the suit property through three sale deeds and the document No.1977/68 has been lost due to the ageism of the husband of the 2nd plaintiff. They denied the averments mentioned in the plaint. The 1st defendant is a power agent of the 2nd plaintiff. To prevent the disturbance caused by the 6th defendant, the 1st defendant has advertised in respect of the suit property in Dhina Malar on 13.10.2004. The 1st defendant has filed a suit in O.S.No.651 of 2005 against the plaintiffs and the husband of the 2nd plaintiff. There are contradictions between the written statement filed by the plaintiffs in the said suit and the plaint filed in this suit.

Therefore, this suit is liable to be dismissed. 4.The brief facts of the written statement filed by the 4th defendant are as follows:- The suit property belonged to the 2nd plaintiff through the sale deeds dated 18.06.1962 and 09.05.1968 and the same is vacant site. The 4th defendant denied the fact that the document has been lost due to the ageism of the husband of the 2nd plaintiff.

the 2nd plaintiff in Patta No.1175. When the 4th defendant approached the Tahsildar seeking patta, the Tahsildar directed the 4th defendant to get relief through the Civil Court, since the case is pending in the Civil Court. In an appeal filed by the 4th defendant, it is ordered to include the 4th defendant's name in the patta on 18.07.2008. Therefore, the 4th defendant is in possession and enjoyment of the suit property. In respect of the suit property, the plaintiffs have no interest or title. Therefore, this suit is not maintainable. 5.The brief facts of the written statement filed by the 5th defendant are as follows:- The 6th defendant approached the 5th defendant through land brokers, by name, Ponnusamy and Manoharan and offered to sell the suit property, claiming themselves as representatives of the 2nd plaintiff.

To prove the same, they showed a copy of a Recurring Deposit Pass Book issued by the Post Master, Perumalpuram Post Office, with photo identity in the name of Tharsil Ammal and cancellation deed executed in Melapalayam Sub Registrar's Office. Believing the same, the 5th defendant agreed to purchase the property.

entered into sale agreement with the 5th defendant on 19.02.2006 and a sum of Rs. 3,00,000/- has been paid on the same day itself. Even after receiving a sum of Rs. 13.75 lakhs, the said lady evaded to execute the sale deed. Therefore, the 5th defendant has lodged a complaint before the Commissioner of Police, Tirunelveli City, who forwarded the same to the City Crime Branch, Tirunelveli City. Thereafter, the 5th defendant came to know that already a complaint is pending against the defendants 1 and 2 in Crime No.6 of 2007. The 5th defendant having supported the case of the plaintiffs before the criminal investigation has not denied the title of the plaintiffs and hence, she is an unnecessary party to this suit. Hence, the suit is bad for non-joinder of necessary parties and mis-joinder of unnecessary parties.

6.The brief facts of the written statement filed by the 7th defendant are as follows:- This defendant did not trespass illegally into the suit property on 17.07.2009 or any other date as alleged by the plaintiffs. The plaintiffs are liable for damages caused to this defendant by such defamatory statement. There is no cause of action at all for the plaintiffs to file the suit against this defendant. The 8/26

suit is not maintainable without challenging the sale deed dated 20.09.1984 in favour of this defendant. The plaintiffs are not entitled to get any relief as prayed in the plaint.

7.Based on the above said pleadings, the trial Court framed the following issues:- "1.Whether the plaintiffs are entitled to suit properties through the settlement deed dated 04.08.2006?; 2.Whether the statement of the defendants 1 to 3 that the settlement deed dated 04.08.2006 is not acted upon is right?; 3.Whether the plaintiffs are not in possession of the suit properties?;

4.Whether the 1st plaintiff is entitled to the relief of declaration and permanent injunction?;

5.Whether the suit is bad for non-seeking the relief of independent possession?;

6.Whether the stamp fee paid by the plaintiffs is right? and 7.To what relief the plaintiffs are entitled?. 9/26

8.In order to substantiate the case, during the trial on the side of the plaintiffs, three witnesses were examined as P.W.1 to P.W.3 and 41 documents were marked as Exs.A.1 to A.41. On the side of the defendants, four witnesses were examined as D.W.1 to D.W.4 and 10 documents were marked as Exs.B.1 to B.10.

9.On conclusion of the trial, after hearing the arguments advanced on either side, the trial Court has decreed the suit, by its judgment and decree dated 05.09.2011.

10.Challenging the said judgment and decree dated 05.09.2011, the defendants 1, 3 and 4 have filed the present Appeal Suit before this Court. 11.The learned counsel for the appellants would submit that the suit property originally belonged to the 2nd respondent herein. The 1st respondent is the son of the 2nd respondent. The 2nd respondent on 11.01.2002, had executed a power of attorney in favour of the 1st appellant to manage the property and also authorize to sell the property. Based on the power of attorney, the 1st respondent 10/26

sold some portion of the properties in the second item to the 3rd respondent and as a power agent of the 3rd respondent, the 2nd appellant sold the properties to the 3rd appellant. Since the respondents 1 and 2 disturbed the possession of the property, the 1st appellant filed O.S.No.651 of 2005 and also gave complaint to the police. Since the 2nd respondent executed power of attorney in favour of the 1st appellant, he sold all the properties on various dates to various persons. Therefore, the suit for declaration and injunction filed by the respondents 1 and 2 was not maintainable. On the date of filing of the suit, the respondents 1 and 2 are not having any title or possession. Even patta also transferred to the name of the appellants and other respondents.

Based on the power of attorney, after selling the properties, the 2nd respondent alleged to have executed a settlement deed in favour of the first respondent, who is none other than the son of the second respondent, which is not valid. Further, delivery of possession has not been handed over to the 1st respondent. In order to only deprive the rights and claims of the appellants and other respondents, the 2nd respondent said to have executed settlement deed in favour of the 1st respondent that was not acted upon. The same will not bind the rights and titles of the appellants and other respondents.

12.He would further submit that even the 2nd respondent on the date of execution of the power of attorney handed over one of the title deeds Ex.B.1 and therefore, the respondents 1 and 2 cannot say that the power of attorney is forged and the same will not bind the respondents 1 and 2. The said power of attorney is a registered one. Till now, the same has not been cancelled by the 2nd respondent. Now, the respondents 1 and 2 are not in possession and patta also transferred to the name of the purchasers. The trial Court failed to appreciate the fact that though the 2nd respondent has executed power of attorney Ex.B.5 and handed over Ex.B.1 original sale deed, now, after filing written statement during the trial, the respondents 1 and 2 have stated that they lost documents.

However, they have not proved that they lost documents and the trial Court failed to appreciate that on the date of filing of the suit, the 1st respondent was not in possession of the property and the 1st respondent was claiming title only under the settlement deed dated 04.08.2006 and the respondents 1 and 2 have not proved the settlement deed. Even prior to execution of the settlement deed, already the 2nd respondent has executed power deed in favour of the 1st appellant and based on the power deed, the 1st appellant sold the properties to the respondents 3 and 4 also other respondents.

been passed to the 1st respondent. Therefore, the suit for declaration of title and injunction is not maintainable.

13.The learned counsel for the respondents 1 and 2 would submit that Exs.A.1 to A.4 are the title deeds stand in the name of the 2nd respondent. As per Exs.A.1 to A.4, the 2nd respondent is the owner of the suit properties. The 1st respondent is the son of the 2nd respondent. The 2nd respondent has executed a settlement deed in favour of the 1st respondent on 04.08.2006 and therefore, the 1st respondent is entitled to the suit properties. The 1st appellant executed a forged document dated 11.01.2002, as if the 2nd respondent executed the power of attorney in favour of the 1st appellant. The 2nd respondent has never executed any power of attorney in favour of the 1st appellant. The said power of attorney is a forged document and that will not bind the respondents 1 and 2.

The 2nd respondent has never signed in any document in Tamil, she is in habit of signing all the documents only in English. The 2nd respondent has never intended to sell the properties and since the said power of attorney is a forged document and it is not legal, the 1st appellant has no right to execute any sale deed.

sale deed in favour of the 3rd respondent herein in respect of some portion of properties in the second item of the suit properties. The 2nd appellant as a power agent of the 3rd respondent executed the sale deed in favour of the 3rd appellant. Based on the illegal sale deed, the 3rd appellant with the help of the revenue people, included his name in the joint patta and subsequently, the revenue authority has directed the 3rd appellant to get a relief through the Civil Court. 14.He would further submit that the 5th respondent has forged a sale agreement dated 20.05.2004, as if the 2nd respondent executed a sale agreement in favour of the 5th respondent and subsequently, the 5th respondent said to have cancelled the sale agreement dated 16.11.2004.

Therefore, all the appellants and the respondents 3 to 6 collusively created a forged document, claiming title, taking advantage of the fact that the 2nd respondent is an aged person and the 1st respondent is residing in Ooty. The appellants have not proved the power of attorney said to have executed by the 2nd respondent in favour of the 1st appellant. Therefore, once the respondents 1 and 2 denied the power of attorney, it is for the 1st appellant to prove the power of attorney that has not been proved. Even after filing the suit also, they created forged documents to encumber the property.

15.He would further submit that the 1st appellant has entered into a sale agreement with one Jeyachandra Pandian on 13.01.2012. During the pendency of this appeal, the said Jeyachandra Pandian in active collusion with the 1st appellant has chosen to file a collusive suit in O.S.No.233 of 2014 on the file of the learned Principal Subordinate Judge, Tirunelveli against the 1st appellant for the relief of specific performance based on the said forged agreement and an act of collusion and fraud between the said Jeyachandra Pandian and the 1st appellant has resulted in a mediation agreement before the mediation centre attached to the learned Principal Subordinate Judge, Tirunelveli. Based on the mediation agreement, a decree came to be passed in O.S.No.233 of 2014 on 23.03.2015.

The act of fraud and collusion did not stop there and based on the compromise obtained by the said Jeyachandra Pandian in active collusion and connivance with the 1st appellant, an execution petition was also filed before the learned Principal Subordinate Judge, Tirunelveli in E.P.No.6 of 2015 by the said Jeyachandra Pandian, in which the 1st appellant, who was sole respondent, remained ex-parte.

Jeyachandra Pandian, behind back the respondents 1 and 2 in collusion and connivance with the 1st appellant.

16.He would further submit that the respondents 1 and 2 have filed a revision petition in C.R.P.(MD)No.1272 of 2022 and C.M.P.(MD)No.5235 of 2022 before this Court, challenging the decree passed by the learned Principal Subordinate Judge, Tirunelveli and this Court has granted an order of stay of further proceedings of the Principal Subordinate Court, Tirunelveli in O.S.No.233 of 2014, in C.R.P.(MD)No.5235 of 2022, by its order dated 28.06.2022. Therefore, the 1st appellant has not approached the Court with clean hands and he has created fraudulent documents and entered into the fraudulent transactions to create encumbrance in the suit properties.

Since this Court has already held that the power of attorney is not valid and the respondents 1 and 2 have strongly denied the power of attorney, the 1st appellant has not proved the power of attorney. Therefore, once the power of attorney is not proved, based on the power of attorney, if any transactions are taken place, the same are also not valid. Therefore, the appellants and other respondents are not legally entitled to claim any of the suit property.

materials and also decreed the suit. Therefore, there is no merit in the appeal and the appeal is liable to be dismissed.

17.In support of the contentions, the 1st respondent has relied upon the following judgments:- (i)S.P.Chengalvaraya Naidu (dead) by Lrs., Vs. Jagannath and others reported in (1994) 1 SCC 1;

(ii)Satluj Jal Vidyut Nigam Vs. Raj Kumar Rajinder Singh (dead) through legal representatives and others reported in (2019) 14 SCC 449; and (iii)Illloth Valappil Ambunhi (D) by L.Rs., Vs. Kunhambu Karanavan reported in 2021 (1) MWN (Civil) 86.

18.Heard both sides and perused the materials available on record carefully.

19.Admittedly, the suit property originally belongs to the 2nd respondent herein. In order to substantiate the same, title deeds stand in the name of the second respondent has been filed and marked as Exs.A.1 to A.4. The appellants have also not disputed the right and title of the 2nd respondent. 17/26

20.According to the appellants, the 2nd respondent said to have executed the power of attorney in favour of the 1st appellant and based on that, the 1st appellant sold some portions in the second item of the property in favour of the 3rd respondent and the 3rd respondent said to have executed power of attorney to the 2nd appellant to sell the property to the 3rd appellant and patta also stands in their name. Since the said power of attorney has not been cancelled, based on the said power of attorney the 1st appellant sold the property to various persons and they are in possession of the property. The 2nd respondent is not an owner of the suit property on the date of filing the suit and the respondents 1 and 2 are not in possession of the property. Therefore, the suit for declaration and injunction is not maintainable.

21.According to the respondents 1 and 2, the 1st appellant created forged document of the power of attorney and created encumbrance. When the respondents 1 and 2 had gone to inspect the suit property, they came to know that some land grabbers have created certain forged documents. Therefore, they applied for encumbrance certificate and came to know the fact only on 18.01.2006 that forged power of attorney has been created on 11.01.2002. Hence, 18/26

they have taken several steps and also made complaints before the police and the police has also made enquiry. In the meanwhile, even in the year 2005, the 1st appellant filed the suit and sent summon to the respondents 1 and 2 in the wrong address, in order to manage not to serve the summons to the respondents 1 and 2. Since the respondents 1 and 2 are not parties to either power of attorney or any of the sale deed said to have been executed to other appellants, other respondents and third parties, based on the forged power of attorney, they have not challenged any of the documents. Further, the 2nd respondent as a owner of the property has executed a settlement deed in favour of his son / 1st respondent under Ex.A.5, dated 04.08.2006 and patta also stands in the name of the 2nd respondent under Ex.A.6.

The appellants are claiming titles, as if the 2nd respondent has executed a power of attorney in favour of the 1st appellant and the 1st appellant transferred the properties to other appellants, other respondents and third parties. The 2nd respondent, who is the owner of the property, denied that she never executed the power of attorney and further, she stated that she is in the habit of signing all the documents only in English, she has never signed in Tamil. Then it is for the appellants to prove that the document is a genuine one and to prove the execution of the document, when the 2nd respondent denied the execution of the document.

The 1st appellant should have examined any one of the witnesses and proved the said documents.

22.In this case, a careful reading of the entire pleadings and documents shows that though the appellants have stated that the 2nd respondent executed the power of attorney in favour of the 1st appellant, the 2nd respondent denied the same in the plaint as well as the evidence. However, the 1st appellant has not proved the said power of attorney in the manner known to law. In the meanwhile, even the appellants have not chosen to examine any of the witnesses to prove the same and even have not taken any steps to send the signature found in the power of attorney to the forensic lab with the admitted signatures. At any ankle, this Court finds that the appellants have not proved the power of attorney.

Therefore, once execution of the power of attorney has not been proved and the appellants admitted that the 2nd respondent is the owner of the property, if any transactions made by the 1st appellant in favour of other appellants and other respondents are not valid and not binding on the 2nd respondent. 23.

suit and the Court need not take weakness of the defendants for granting relief to the plaintiffs. In this case, the respondents 1 and 2 are the plaintiffs, who have filed the suit for declaration and permanent injunction. In order to substantiate their claim, they pleaded that the suit property belonged to the 2nd respondent and in order to substantiate the pleadings, the 2nd respondent examined herself as D.W.2 and also Exs.A.1 to A.4 title deeds stand in the name of the 2nd respondent have been produced and marked as documentary evidence. The appellants also admitted the same. Therefore, as already stated, the power of attorney said to have executed by the 2nd respondent is a forged one and the appellants have not proved the same. The 2nd respondent is the owner of the property and she has executed the settlement deed in favour of her son / 1st respondent under Ex.A.5 dated 04.08.2006. Though the appellants have denied the same, it is the registered document.

24.The settler and settlee have appeared before the Court. The settler / 2nd plaintiff / 2nd respondent herein was examined as P.W.2 and the settlee / 1st plaintiff / 1st respondent herein was examined as P.W.1. They have categorically stated that the 2nd respondent has executed the settlement in favour of the 1st 21/26

respondent, which has been marked as Ex.A.5 and they have also stated that on the date of execution of the settlement deed Ex.A.5, possession also handed over to the settlle / 1st plaintiff / 1st respondent herein. Ex.A.6 clearly shows that patta also stands in the name of the 2nd respondent. Therefore, from Exs.A.1 to A. 6, it is clearly seen that originally, the suit properties belonged to the 2nd respondent and based on the settlement deed Ex.A.5, the suit properties are transferred to the 1st respondent and now, the 1st respondent is the owner of the suit property. Therefore, from the evidence of P.W.1 and P.W.2 and Exs.A.1 to A.6, it is seen that the respondents 1 and 2 have clearly proved that they are the owners of the suit property.

Though now, the 1st respondent alone is the owner of the property, since the 1st appellant created the forged document and denied the title, both the respondents 1 and 2 had jointly filed the suit. Though the appellants and other respondents have stated that they are in possession of the property and the 3rd appellant's name is included in the joint patta, once the power of attorney is not valid, based on the illegal power of attorney, if a sale or transaction is made ultimately, the same is also illegal and invalid. Further, patta is not a document of title.

proved their title and possession. Admittedly, the property is vacant site. 25.It is settled principles of law that the possession follows title. Even though the appellants and other respondents created certain forged documents, the same are held as illegal and not binding the respondents 1 and 2. Though the appellants attempted to make some encumbrance, they were prevented from entering into the possession by the respondents 1 and 2 by making complaints before the police. The appellants have not proved that they are in possession, except there are certain documents and the revenue records as joint pattadharars and other documents, which are not valid.

Further, the 2nd respondent has never executed the power of attorney, sale deed or sale agreement in favour of any other persons and the appellants have also not proved that the person, who has got title and right over the property, has executed any sale deed or any other transaction. Hence, they are not entitled to either title or possession. Therefore, the respondents 1 and 2 have proved their case and since the documents regarding other transaction are executed subsequent to the illegal power of attorney, the same will not bind the respondents 1 and 2 and the same will not affect the rights and possession of the respondents 1 and 2.

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26.As this Court is the First Appellate Court as a fact finding Court, it has to re-appreciate the entire evidence independently and arrive at an independent conclusion. On re-appreciation, this Court finds that the respondents 1 and 2 have proved their title and possession and the trial Court has rightly appreciated all materials and granted relief of declaration and permanent injunction. Further, this Court does not find any perversity in the findings of the trial Court, hence, no reason to set aside the judgment and decree of the trial Court. As there is no merit in the appeal, the appeal is liable to be dismissed, accordingly, dismissed.

27. In the result, the appeal is dismissed and the judgment and decree passed by the trial Court are confirmed. No costs. Consequently, connected miscellaneous petition is closed.

12.08.2022 Index : Yes / No Internet : Yes / No Myr 24/26

To 1.The Additional District Sessions Judge, Fast Track Court No.I, Tirunelveli.

2.The Record Keeper, V.R.Section, Madeira Bench of Madras High Court, Madurai.

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P.VELMURUGAN , J.

Myr Judgment made in 12.08.2022 26/26