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2020 DIGILAW 153 (MAD)

V. Vijayalakshmi v. R. Malarvizhi

2020-01-22

S.M.SUBRAMANIAM

body2020
JUDGMENT : (Prayer: Appeal Suit is preferred under Section 96 of the Code of Civil Procedure against the judgment and decree dated 19.08.2013 passed in O.S.No.25 of 2011 on the file of the learned I Additional District and Sessions Judge, Vellore.) 1. The present appeal suit is directed against the judgment and decree dated 19.08.2013 passed by the learned I Additional District and Sessions Judge, Vellore in O.S.No.25 of 2011. 2. The appellant in the appeal suit is the defendant in the suit and the respondent in the appeal suit is the plaintiff in the suit. 3. The respondent, who is the plaintiff in the original suit, instituted the suit for the relief of declaration of title, recovery of possession, for damages and for the use and occupation of the premises. 4. The facts in nutshell, as narrated in the plaint, are that the respondent/plaintiff is the absolute title holder of the suit property and she is in continuous possession and enjoyment of the same right from the date of purchase through a registered Sale Deed dated 19.01.2004. 5. The appellant/defendant requested the respondent/plaintiff to live with her family in the said house and also agreed to vacate the said house on or before the plaintiff’s demand. Thus, the respondent/ plaintiff has verbally allowed the appellant/defendant to reside there. The appellant/defendant was continuously residing there. The defendant’s mother late Smt.Radha Ammal and the appellant/ defendant jointly sold their house i.e., the suit property, for their family expenses through their Power of Attorney Holder by name Mr.Saravanan on 02.06.1997 and the same was executed in favour of one Mr. M.G. Ramalingam. Thereafter, the said Mr. M.G. Ramalingam had sold the suit property on 19.11.2004 in favour of the respondent/plaintiff. Thus the respondent/plaintiff is the second purchaser. 6. At that point of time, the appellant/defendant was residing in the suit property with the permission of Mr. M.G. Ramalingam. The appellant/defendant requested the respondent/plaintiff for two months time to vacate the suit house. Later on the appellant/defendant changes her attitude against the plaintiff by misusing the permission granted to reside in the suit house and refused to vacate the suit house. Under those circumstances, the respondent/plaintiff was constrained to institute the suit for declaration of title and recovery of possession (mandatory injunction) and for damages. 7. Later on the appellant/defendant changes her attitude against the plaintiff by misusing the permission granted to reside in the suit house and refused to vacate the suit house. Under those circumstances, the respondent/plaintiff was constrained to institute the suit for declaration of title and recovery of possession (mandatory injunction) and for damages. 7. The defendant disputed the contentions as narrated in the plaint and filed written statement stating that the respondent/plaintiff has come forward with the suit by fabricating the documents in order to grab the ancestral property of the appellant/defendant. The suit property originally belonged to the father of the defendant as he acquired the same from the Cooperative Society. The respondent/ plaintiff neither purchased the suit property on 19.11.2004 nor sold the same to the appellant/defendant. The suit property is the ancestral property of the appellant/defendant. The respondent/plaintiff is having forged documents in respect of the suit property and she is not entitled for any relief in the suit. 8. The husband of the appellant/defendant, namely Mr.Venugopal, has given petition to the District Registrar, with a request not to register any document pertaining to the suit property and also he received reply from the District Registrar. The appellant/ defendant has approached Mr.Saravanan and his men for a loan amount of Rs.50,000/- to meet out the medical expenses of her husband. At that time, Tvl.Saravanan, Ravi and Sridhar obtained signatures from the appellant/defendant, her mother, minor daughter Venthamarai Selvi and Srinivasan and took them to the Katpadi Sub Registrar Office and obtained signatures in the blank papers and later those papers were converted into fabricated documents by using the signatures for the purpose of creation of Power of Attorney. 9. At the outset, it is contended that the Power of Attorney is the fabricated document and based on the fabricated Power of Attorney, the sale was executed in favour of Mr.M.G.Ramalingam, who in turn sold the property to the respondent/plaintiff in the present suit. 10. 9. At the outset, it is contended that the Power of Attorney is the fabricated document and based on the fabricated Power of Attorney, the sale was executed in favour of Mr.M.G.Ramalingam, who in turn sold the property to the respondent/plaintiff in the present suit. 10. The learned counsel appearing on behalf of the appellant/defendant mainly contended that the suit property is the ancestral property of the appellant/defendant and her father was the title holder and after the demise of her father, one Mr.Saravanan fraudulently created the Power of Attorney by obtaining the signatures in blank sheets from the mother of the appellant/defendant as well as the appellant/defendant and executed the sale documents and therefore, the respondent/plaintiff cannot acquire any title derived from and out of a bogus Power of Attorney and hence, no relief can be granted in the suit. 11. The learned counsel appearing on behalf of the appellant/ defendant reiterated that the Trial Court had only gone through the documents blanketly and granted the relief of declaration. Such an approach of the Trial Court is erroneous in view of the fact that the facts as narrated by the appellant/defendant as well as deposed before the Court, had not been considered by the Trial Court. 12. Soliciting the attention of the deposition, the learned counsel for the appellant/defendant reiterated that on several occasions, the witnesses had deposed that the property originally belonged to the father of the appellant/defendant and after his demise, the mother of the appellant/defendant and the appellant/defendant are entitled to inherit the property and the subsequent sale by Mr.Saravanan, by creating fraudulent Power of Attorney was not considered. 13. The Trial Court framed the following issues for consideration:- (i) Whether the plaintiff is entitled for the relief of declaration as prayed? (ii) Whether the plaintiff is entitled for the mandatory injunction directing the defendant, her men to vacate the suit property? (iii) Whether the plaintiff is entitled for damages at Rs.10,000/- for the period from October 2009 till date as prayed? (iv) To what other relief the plaintiff is entitled? 14. On the side of the plaintiff, PWs-1 to 4 were examined as witnesses and Exs.A-1 to A-12 were marked as documents and on the side of the defendant, DW-1 was examined as a witness and Exs.B-1 to B-16 were marked as documents. 15. (iv) To what other relief the plaintiff is entitled? 14. On the side of the plaintiff, PWs-1 to 4 were examined as witnesses and Exs.A-1 to A-12 were marked as documents and on the side of the defendant, DW-1 was examined as a witness and Exs.B-1 to B-16 were marked as documents. 15. With reference to issue No.(i), the Trial Court made an adjudication with reference to the facts, documents as well as the evidences placed by the respective parties to the suit. 16. One Mr. P.S. Krishnamachari was the original owner of the suit property. The said Mr. P.S. Krishnamachari is the father of the appellant/defendant. Admittedly, he purchased the suit property vide Sale Deed dated 23.06.1950, which was marked as Ex.A-9. After the demise of Mr. P.S. Krishnamachari, the suit property was devolved on his wife Smt.Radha Ammal alias Chenchi Ammal and her daughter Vijayalakshmi, who is the defendant in the suit. 17. Smt.Radha Ammal and her daughter Vijayalakshmi executed a registered Power of Attorney in favour of one Mr.Saravanan on 18.09.1996, which was marked as Ex.A-8. In the Power of Attorney, the children of Vijayalakshmi/defendant also joined as Executants though they had no right over the suit property. During the relevant point of time, the Power Agent Saravanan sold the suit property in favour of one Mr. M.G. Ramalingam on 02.06.1997 and the Sale Deed has been marked as Ex.A-7. 18. The respondent/plaintiff purchased the suit property from Mr.M.G.Ramalingam on 19.11.2004 and the Sale Deed has been marked as Ex.A-1. Thus, the respondent/plaintiff became the absolute owner of the suit property. After purchasing the suit property, mutation of names were effected and the EB Card and EB Receipts in the name of the respondent/plaintiff have been marked as Ex.A-2 dated 01.10.2005. The House Tax Receipts, Water Tax Receipts, Encumbrance Certificate were marked as documents by the respondent/plaintiff as Exs.A-3, A-4 and A-6 respectively and the Lawyer’s notice was marked as Ex.A-5. 19. The Trial Court with reference to Issue No.(i) made a finding that all these documents does not establish any title to the appellant/defendant. The suit property was sold on 02.06.1997. 19. The Trial Court with reference to Issue No.(i) made a finding that all these documents does not establish any title to the appellant/defendant. The suit property was sold on 02.06.1997. As per Ex.A-7, the suit property was sold to one Mr.M.G.Ramalingam and if at all the appellant/defendant was aggrieved on account of said action of the Power of Attorney Mr.Saravanan, proper action should have been taken during the relevant point of time for the redressal of any remedy. However, no such action was taken by the appellant/ defendant during the relevant point of time, either by challenging the Power of Attorney or the Sale Deeds executed by Mr.Saravanan. 20. In the absence of any such action during the relevant point of time, the Trial Court arrived a conclusion that the respondent/ plaintiff established her title with reference to the suit property as the Power of Attorney was a registered one and based on the registered Power of Attorney, the Sale Deed was executed in favour of Mr.M.G.Ramalingam, who in turn sold the suit property to the respondent/plaintiff and none of these documents were challenged by the appellant/defendant during the relevant point of time and under those circumstances, the respondent/plaintiff has proved her title through those documents. 21. With reference to issue No.(ii) regarding the possession of the suit property, the Trial Court made a finding that undoubtedly the appellant/defendant was in possession of the suit house as a permissive occupant. Though the Power of Attorney as well as the subsequent Sale Deeds were not challenged, the appellant/defendant was permitted to reside in the house and at later point of time, the appellant/defendant refused to vacate the house, which resulted in institution of the suit by the respondent/plaintiff. 22. Under those circumstances, the Trial Court arrived a conclusion that the appellant/defendant can be a permissive occupant and mere occupation would not confer any title regarding the suit property. This being the categorical finding and with reference to issue Nos.(iii) and (iv) also, the Trial Court is of the opinion that the respondent/plaintiff is entitled to get the damages in view of the fact that the appellant/defendant was in possession of the suit property as a permissive occupant and for costs. This being the categorical finding and with reference to issue Nos.(iii) and (iv) also, the Trial Court is of the opinion that the respondent/plaintiff is entitled to get the damages in view of the fact that the appellant/defendant was in possession of the suit property as a permissive occupant and for costs. This Court is of the considered opinion that the principle to be followed, as a person, the respondent/ plaintiff, who instituted the suit, must establish her case at the first instance and the appellant/defendant can establish her case thereafter. 23. In the present case, the respondent/plaintiff could able to establish through documents that she is the absolute owner of the suit schedule property. The facts admitted regarding the original title holder Mr.P.S.Krishnamachari as well as the registered Power of Attorney and subsequent execution of Sale Deeds are not disputed by the parties concerned. 24. Under those circumstances, this Court is of an opinion that the Trial Court has not committed any perversity or infirmity, as such, with reference to the materials placed by the parties. In fact, the Trial Court proceeded the case in a right perception and the conclusion arrived is in consonance with the documents as well as the evidences considered by the Trial Court. 25. This being the factum, this Court is not inclined to interfere with the judgment and decree dated 19.08.2013 passed by the learned I Additional District and Sessions Judge, Vellore in O.S.No.25 of 2011 and accordingly, the judgment and decree of the Trial Court is confirmed. Consequently, the present appeal suit stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is also dismissed.