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2012 DIGILAW 657 (MAD)

M. Krishnakumar v. B. R. Sundaram

2012-02-07

T.RAJA

body2012
JUDGMENT 1. These two second appeals are directed against the judgment and decree passed by the learned Principal District Judge, Coimbatore in A.S.Nos.201 and 202 of 2003 dated 29.10.2004, in and by which, the first appellate Court reversed the judgment and decree passed by the learned II Additional District Munsif, Coimbatore holding specifically that the Vardhamanam receipts Exs.B1 to B11 are not genuine and valid one and thereby it also held that M.Krishnakumar, the plaintiff in O.S.No.1531 of 1993 is not entitled for any relief of permanent injunction in respect of A.S.No.202 of 2003 and consequently it further held that the plaintiffs B.R.Sundaram and three others in O.S.No.2633/1996 are entitled to the relief of rendition of accounts and permanent injunction against the defendant Krishnakumar as prayed for. 2. In respect of A.S.No.202/2003, for the reasons mentioned in the judgment and decree in A.S.No.201/2003, the appeal filed by Sundaram and others in A.S.No.202/2003 was allowed without costs. 3. This Court, at the time of admitting the second appeals, framed the following substantial questions of laws:- "1) When the plaintiffs in O.S.No.2633 of 1996 themselves having given a go-bye to the reasons given for execution of Vardhaman letters made by them in their original pleadings and admitted preparation and signing of Vardhaman letters, still is the learned District Judge right in reversing the decree of the trial Court? 2) When the plaintiffs having admitted receipt of entire consideration with reference to the properties for which power of attorney was executed, whether the suit as framed is maintainable?" 4. The learned Senior Counsel appearing for the appellant would briefly submit the facts leading to filing of second appeals. Originally, a suit for rendition of true and proper accounts for the sales effected till the date of suit was filed along with a prayer for permanent injunction restraining the defendant and his men, agents claiming under him from interfering or entering in the lands set out in the schedule therein and also praying for permanent injunction against the defendant from obstructing the plaintiffs' rights in the lands set out in the plaint schedule. For the sake of convenience, the parties are referred as Plaintiffs and Defendant as per their status in O.S.No.2633 of 1996. 5. The plaintiffs, numbering about 29, ventured into joint business of acquiring lands in Coimbatore and sell them for profit. For the sake of convenience, the parties are referred as Plaintiffs and Defendant as per their status in O.S.No.2633 of 1996. 5. The plaintiffs, numbering about 29, ventured into joint business of acquiring lands in Coimbatore and sell them for profit. The defendant also one such person who joined in the said venture. For that purpose, the plaintiffs and other persons purchased about 22.24 acres for developing the same into an approved lay out. They being absolute owners of the said property, the suit land was also developed into house sites under the approved lay-out. Subsequently, the plaintiffs executed a registered power of attorney dated 14.9.1990 in favour of defendant enabling the defendant to deal with the Town Planning Authority. With an intention to avoid confusion that would arise in the event ofselling the properties to third parties, they have executed power of attorney in favour of defendant purely for the purpose of facilitating easy and convenient sale of the plots. After all these, they issued a notice to the defendant that the power of attorney dated 14.9.1990 would be cancelled if the defendant failed to render true and proper accounts on the sale of lands. Thereafter, they filed the present suits praying for a direction to the defendant to render true and proper accounts till the date of filing the suits and also for other reliefs mentioned as above. 6. Of course in the above suits, the defendant who was a plaintiff in O.S.No.1531/1993 filed a detailed written statement dated 8.6.1998 stating that after the suit properties were purchased by the plaintiffs on 14.9.1990 for a sum of Rs.21,600/- per acre, the same was also handed over to the defendant by way of power of attorney dated 24.4.1990 giving all powers to the defendant to sell the same to the third parties for enhanced rate. But, after two days from the date of handing over the power of attorney on 26.4.1990, the plaintiffs once again approached the defendant for selling the same to the defendant. After discussion, the plaintiffs have received a sum of Rs.1 lakh on the date of execution of power of attorney on 14.9.1990 itself. But, after two days from the date of handing over the power of attorney on 26.4.1990, the plaintiffs once again approached the defendant for selling the same to the defendant. After discussion, the plaintiffs have received a sum of Rs.1 lakh on the date of execution of power of attorney on 14.9.1990 itself. The plaintiffs also executed varthamana letter dated 26.9.1990 stating that being owners of portion of the lands, they have received consolidated sum of Rs.1 lakh each on the date of execution of power of attorney on 14.9.1990 and they would not take any further steps to cancel the power of attorney executed in favour of the defendants, while so, it is not open for them to ask for the relief of rendition of accounts for having sold the land to the third parties. On that basis, he prayed for dismissal of the suits. It was further stated that when there was an understanding reached between the parties viz. plaintiffs and defendant by executing another varthamana stating that they will not cancel the power until the entire sites are sold out, it is not fair on the part of the plaintiffs to maintain the present suits as against their own terms contained in varthamana. One another Suit No.1531/1993 was filed by the Plaintiff/Defendant in O.S.No.2633/1996 for permanent injunction restraining the Defendants/Plaintiffs in O.S.No.2633/1996 from involving the General Power of Attorney dated 14.9.1990 in favour of plaintiff in any manner whatsoever and also further restraining them from rescinding the obligations already incurred, the trial Court tried both the suits jointly and finally dismissed the suit filed by B.R.Sundaram and three others against the defendant Krishnakumar in O.S.No.2633 of 1996. In view of the dismissal of one suit, the trial Court decreed the other suit filed by Krishnakumar in O.S.No.1531 of 1993 accepting the execution of Verthanama letters in favour of defendant Mr.Krishnakumar. 7. In view of the dismissal of one suit, the trial Court decreed the other suit filed by Krishnakumar in O.S.No.1531 of 1993 accepting the execution of Verthanama letters in favour of defendant Mr.Krishnakumar. 7. Under these background, learned Senior Counsel appearing for the appellant would submit that the plaintiffs B.R.Sundaram and three others have executed power of attorney along with 25 other similarly placed persons in favour of appellant/defendant herein stating that being the purchasers of lands in S.Nos.216/1 and 216/6 after giving all power to the defendant/appellant herein to sell the properties to third parties for best and higher prices and immediately after executing the power of attorney dated 14.9.1990, when the plaintiffs issued varthanama letters dated 26.9.1990 accepting a sum of Rs.1 lakh towards sale consideration of their lands, it is not open to the plaintiffs to state that they have not executed varthanama letters and further challenge the subsequent sales that had taken place, under these background, he pleaded further that the first appellate Court should have refused their challenge and ought not to have reversed the findings and the conclusion reached by the trial Court. It was also further contended that the trial Court has specifically given a judgment on a proper conclusion that the plaintiffs who have filed a suit before the trial Court, have not stated that they had copy of blank sheets viz. vardhanama letters and subsequently misused them after filled up by the defendant. Failure to produce any copy thereof before the trial Court that they were all subsequently used and filled up by the defendant was not properly looked into by the first appellate Court. 8. Therefore, it was again contended that the learned first appellate Court while reversing the judgment of the trial Court, failed to advert into all the reasons given by the trial Court in particular reference to an issue that the plaintiffs have not mentioned that they produced carbon copy of the blank sheet and the same came to be wrongly utilised by the defendant as varthanama letters, hence, such a failure of the Appellate Court goes to show that the appellate Court has committed a gross irregularity while reversing the correct findings reached by the trial court. 9. 9. While answering the said argument, the learned counsel appearing for the respondents would submit that the plaintiffs who have executed the power of attorney in favour of the defendant on 14.9.1990 ought not to have sold the property by way of creating vardhamana letter dated 26.9.1990, because there was no need for the plaintiffs, who have executed power of attorney in favour of defendant, to receive a sum of Rs.1 lakh towards cost of land, when they have already entered into an agreement to sell the property for making profit. It was also further contended that vardhanama letter dated 26.9.1990 has been rightly found by the first appellate court not only as a forged one but also was created for the purpose of filing the suit and therefore the said findings do not call for interference by this Court. Further contending that when power was given to sell the suit land for higher rate, the defendant/appellant herein, without even obtaining any proper permission from the plaintiffs/respondents herein, fraudulently alienated the property and set up a wrong case that the plaintiffs have sold the property through verdhanama letter dated 26.9.1990. 10. The plaintiffs in O.S.No.2633 of 1996 have executed general power of attorney in favour of defendant and have laid their claim before the trial Court for grant of decree directing the defendant to render true and proper accounts for the sales effected till the filing of the suit along with another prayer for permanent injunction restraining the defendant from alienating the suit land and obstructing the rights of the plaintiffs to sell the remaining rights in the land. The specific claim taken by the defendant/appellant in the varthanama receipt dated 26.9.1990 is that they were required for income-tax purpose and the carbon copy of blank varthanama receipts were given to the plaintiffs and the carbon copies were sought to be produced at the time of trial. The trial Court on examining this aspect has gone into these details stating that the plaintiffs have averred in the plaint that the defendant has obtained signatures in the blank vardhanama stating that they were required for income-tax purpose, but, unfortunately the blank vardhanama was wrongly utilised as though the plaintiffs have received Rs.1 lakh each towards the sale consideration of the suit land. The plaintiffs have miserably failed to produce the carbon copy of the alleged vardhamana before the trial Court to enable the trial Court to find out the correctness of the allegation made by the plaintiffs. 11. It is an admitted case that the power of attorney registered on 14.9.1990 was executed by 12 persons in favour of the defendant, hence it is the case of the defendant that when 12 persons have executed the power of attorney in favour of defendant jointly for the purpose of giving power to the defendant to sell the land at highest price and thereafter towards the respective shares of the 12 persons when they received a consolidated sum of Rs. 1 lakh each on the date of execution of general power of attorney on 14.9.1990 itself and again after few days, executing vardhanama letter dated 26.9.1990 giving an undertaking to the Defendants shows that they would not cancel the General Power of Attorney executed in favour of the Defendants for the reason that they have received Rs.1 lakh each towards full and final settlement of the sale consideration. 12. Under these circumstances, when lawyer's notice Ex.A12 was issued, only by 4 out of 12 persons, who have executed the registered power of attorney, the Defendant has replied to the legal notice dated 17.8.1993 informing the plaintiffs that when all the 12 persons have received their sale consideration towards the cost of the plot by executing vardhamana dated 26.9.1990 with undertaking that they would not cancel their registered Power of Attorney calling upon the Defendant to render true and proper accounts for sales effected is totally unfair and uncalled for. But, in the plaint filed before the trial Court, in para 12, they have pleaded that they were not questioning the sales effected by the defendant before 17.8.1993. Even before the trial Court, the other parties who have executed the power of attorney along with four plaintiffs, have not even come to support the case of the plaintiffs to say that the defendant, at the time of executing the power of attorney, has wrongly taken their signatures in blank vardhanama receipts from the plaintiff stating that they were required for income-tax purpose and subsequently they were fabricated. 13. 13. Further, when the plaintiffs have taken a specific stand before the trial Court that a photostat copies of Exs.A6 to A9 were given by the plaintiffs to the defendant, the said copies were not filed before the trial Court to show that the plaintiffs have affixed their signatures in blank vardhamana papers, therefore the trial Court safely reached a conclusion that non-production of photo copy of the carbon copy of vardhamana by the plaintiffs has proved their claim that the plaintiffs were paid with Rs.1 lakh each towards the sale consideration of their respective shares of lands, covered in general power of attorney. Besides, the other reasonings given by the trial Court that when 12 persons have executed power of attorney, only four alone are not entitled to cancel the general power of attorney, this reasoning, in my opinion, cannot be found fault with. When the genuineness and validity of vardhamana letters in Exs.B1 to B12 were finally accepted by the trial Court on the basis of proper oral and documentary evidence holding specifically that recitals in Ex.B8 has shown that the plaintiffs have received a sum of Rs.1 lakh each as sales price and thereby they have relinquished their rights in the suit properties by conferring absolute right upon the defendant Krishnakumar in dealing with the said properties, without giving any finding on this aspect, the first appellate Court erroneously reversed the judgment of the trial Court and thus committed serious error in law. 14. It is trite law that the first appellate Court should not ordinarily reject the witnesses accepted by the learned trial Court in respect of the credibility. In this context, it is worthwhile to refer a judgment of the Apex Court in State Bank of India and another v. Emmsons Internations Ltd and another (2012 (1) CTC 216), wherein the Apex Court while dealing with the power of the first appellate Court has held that as a first appellate Court, it must consider and address itself to all the issues and facts before setting aside the judgment of the trial Court. In this context, it is useful to refer paragraphs 21 and 22 of the said judgment, which is extracted hereunder:- "21. In Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs., 2001 (3) SCC 179 , this Court held (at pages 188-189) as under: "... In this context, it is useful to refer paragraphs 21 and 22 of the said judgment, which is extracted hereunder:- "21. In Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs., 2001 (3) SCC 179 , this Court held (at pages 188-189) as under: "... The Appellate Court has jurisdiction to reverse or affirm the findings of the Trial Court. First Appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court. ... while reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the Trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further Appeal that the First Appellate Court had discharged the duty expected of it .... 22. The above view has been followed by a 3-Judge Bench decision of this Court in Madhukarand Others v. Sangram and Others, 2001 (4) SCC 756 , wherein it was reiterated that sitting as a Court of First Appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings." 15. The learned Senior Counsel appearing for the appellant would submit that one of the significant aspects raised in the case is relating to the admission of the plaintiff for executing Vardhamana letters after receiving a sum of Rs.1,00,000/- each towards the sale consideration on the land. On this aspect some of the witnesses who assigned the Vardhamanam letters like Rajarathinam residing at Door No.259C, Third Street, Coimbatore were examined before the Court. The sale deed Ex.A.15 shows that the document was prepared on 3.9.1990. However on the date of execution of the document, he also admitted that he was residing at Door No.131, 8th Cross Street, 100 Feet Road. The sale deed Ex.A.15 shows that the document was prepared on 3.9.1990. However on the date of execution of the document, he also admitted that he was residing at Door No.131, 8th Cross Street, 100 Feet Road. Therefore, comparing the different address given for Rajarathinam on the date of preparation of Ex.A.15, the sale deed dated 3.9.1990 though argument was advanced that the Vardhamanam was created by the defendant but the signature found in the Vardhamanam was that of Rajarathinam. Further, enough evidence was also elicited to that effect. Therefore, when executing Vardhamana, the carbon copy was given to said Rajarathinam. The xerox copy of the carbon sheet of Vardhamanam, produced before the Court shows that Vardhamanam was executed on payment of Rs.1,00,000/- each by the plaintiff. Therefore, when the factum of execution of Vardhamanam for valuable consideration was proved, the question of making an attempt to say that the false and forged Vardhamanam was created is far from truth. In fact, the original sale deed was marked by the defendants as Exs.B.2 to B.5, under such circumstances, the trial Court has come to the conclusion that if the plaintiff had not given the original sale deed Vardhamanam, the same deed would not have come to the hands of the defendant. Nontheless, when the signatures of the plaintiff found in the Vardhamanam have been accepted as their own signatures, the trial Court has come to the conclusion that on receipt of sale consideration of Rs.1,00,000/- towards the costs of the land, they executed the Vardhamanam, however, to disprove this fact, no significant evidence was ever let in by the plaintiff. 16. Therefore, when the plaintiff in O.S.No.2633 of 1996 has admitted the preparation and signing of Vardhamanam letters, the learned trial Court by looking into the other attendant circumstances, reached its conclusion that the Vardhamanam letters have been executed by the plaintiff, such a conclusion, in my considered opinion, should not have been reversed by the first appellate Court without assigning any cogent reasons thereon. That apart, in the suit, all the 12 persons jointly executed a registered power of attorney dated 14.9.1990, they are Ex.A5, Ex.A77 and Ex.B1. That apart, in the suit, all the 12 persons jointly executed a registered power of attorney dated 14.9.1990, they are Ex.A5, Ex.A77 and Ex.B1. While so, to cancel a proper power of attorney executed in accordance with law in favour of the Defendant Mr.Krishnakumar by all 12 persons, only four persons cannot cancel such a power of Attorney by sending a lawyers notice by 4 persons. On the other hand, all the 12 persons should cancel the power of Attorney by way of registered cancellation deed. As it was not done the plaintiff cannot maintain a suit. Secondly, all the sale deeds that had taken place will legally bind the plaintiffs since the power of Attorney executed by registered deed has not been lawfully cancelled. As against this, when appeal was filed, the learned first appellate Court reversed the findings of the trial Court without considering all the issues. 17. Under these background, if I look at the rulings of the Hon'ble Apex Court in STATE BANK OF INDIA AND ANOTHER V. EMMSONS INTERNATIONAL LIMITED AND ANOTHER (2012 (1) CTC 216), it has been made clear that a Court of appeal can re-appreciate the entire evidence and come to the conclusion by giving its own reasons on all the issues of law and facts. But in my view, the first appellate Court has failed to follow the fundamental rule governing the exercise of its jurisdiction under Section 96 of the Code of Civil Procedure, 1908. That apart where the first appellate Court reversed the judgment of the trial Court, it requires to consider all the issues on law and fact, this would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty cast upon it. But the learned Appellate Court failed to give its reasons on all the issues. This flaw vitiates the entire judgment of the first appellate Court and therefore, the impugned judgment cannot be sustained. 18. For the above reasons, the impugned judgment is not in accordance with Section 96 of the Code of Civil Procedure, 1908. 19. Accordingly, both the second appeals are allowed by setting aside the impugned judgment, with the result the judgment and decree passed by the trial Court are restored. No costs.