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2021 DIGILAW 2298 (MAD)

Kesava Goundar v. Jayalakshmi

2021-09-07

P.T.ASHA

body2021
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of the CPC against the Judgement and Decree dated 14.06.2016 made in A.S.No.98 of 2009 by the learned Principal District Judge, Villupuram, confirming the Judgement and Decree dated 11.11.2008 passed by the learned Principal District Munsif, Ulundurpet, in O.S.No.117 of 2006.) 1. This Second Appeal is filed challenging the Judgment and Decree of the Principal District Judge, Villupuram, in A.S. No. 98 of 2009, in and by which the learned Judge had confirmed the Judgment and Decree of the Principal District Munsif, Ulundurpet, in O.S. No. 117 of 2006. The facts which are considered necessary to dispose of the above Second Appeal is alluded to herein below. The parties to the lis are referred to in the same rank as before the Trial Court. 2. The plaintiff had filed the suit O.S.No.117 of 2006, on the file of the Principal District Munsif, Ulundurpet, seeking the relief of a declaration and recovery of possession from the 1st defendant and for damages. She had come to the Court contending that the suit property belonged absolutely to the 2nd defendant. On 01.09.2005, the 2nd defendant had executed a registered power of attorney in favour of Kuppa Goundar son of Narayana Goundar, who is none other than the husband of the plaintiff. On 14.09.2005, Kuppa Goundar as power agent of the 2nd defendant had sold the suit property to the plaintiff for a total sale consideration of Rs.30,000/-. The suit property is part of a larger extent of 5.67 Acres, comprised in survey No.210 of Kattu Edayar Village, Rishivendiyam, Kalakuruchi, Villupuram District. 3. It was also the plaintiff’s case that the 1st defendant had desired to purchase the suit property and having failed in his attempt to do so, he had instigated the 2nd defendant to cancel the power that he had given to Kuppa Goundar. It appears that on 17.11.2005, the power given to Kuppa Goundar was canceled by the 2nd defendant. Thereafter, the plaintiff and her husband were served with the caveat which was filed by the 1st defendant. After filing the caveat the 1st defendant had forcibly taken possession of the suit property and had refused to vacate the same. Therefore, left with no other alternative the plaintiff has come forward with the above suit. 4. Thereafter, the plaintiff and her husband were served with the caveat which was filed by the 1st defendant. After filing the caveat the 1st defendant had forcibly taken possession of the suit property and had refused to vacate the same. Therefore, left with no other alternative the plaintiff has come forward with the above suit. 4. This suit of the plaintiff was resisted by the 1st defendant inter alia contending that the total extent of 5.67 acres together with a Well, 5 H.P. Motor and pump-sets was the ancestral property of the 2nd defendant. The 2nd defendant was permanently residing at Chennai and therefore, he had leased out the lands to the 1st defendant long ago. On 04.06.2001, the 1st defendant had purchased an extent of 1 acre out of this 5.67 acres within specified boundaries. He had got the revenue records mutated in his name. On 04.06.2001, the 2nd defendant had executed a Will bequeathing the remaining extent of 4.67 acres along with other lands belonging to the 2nd defendant in favour of the 1st defendant. 5. While so, Kuppa Goundar, the plaintiff’s husband who was fully aware of all these transactions had approached the 2nd defendant and obtained a power in his name in respect of the suit property. Thereafter, making use of the said power, Kuppa Goundar had alienated the property to his wife, the plaintiff. The power of attorney and the sale deed are not valid documents and the plaintiff is bound to prove the same. It was also the case of the 1st defendant that the plaintiff has never in possession and enjoyment of any portion of the property and it was always the 1st defendant who was enjoying the land since he has been a lessee in respect of the same for several years. The 2nd defendant had thereafter, sold the extent of 4.67 acres to the 1st defendant under a registered sale deed dated 29.11.2005. Therefore, the 1st defendant was the absolute owner and in possession of the entire extent of 5.67 acres. The 1st defendant would therefore contend that there was absolutely no cause of action for the filing of the suit and therefore, the suit deserves to the dismissed. 6. Therefore, the 1st defendant was the absolute owner and in possession of the entire extent of 5.67 acres. The 1st defendant would therefore contend that there was absolutely no cause of action for the filing of the suit and therefore, the suit deserves to the dismissed. 6. The 2nd defendant has also filed a written statement and a perusal of the same would show that it is nothing but a re-production of the written statement filed by the 1st defendant. 7. The learned Principal District Judge, Villupuram had framed the following issues (which has been translated from the vernacular): (i) Whether the plaintiff is entitled to a declaration of her title in respect of the suit property and she is entitled to recover possession of the same from the 1st defendant through Court? (ii) What are the other reliefs that the plaintiff is entitled to? 8. After the issues were framed the parties had gone to trial. During the trial the plaintiff had examined herself as P.W.1 and one Ganeshan as P.W.2. She had marked Ex. A-1 to Ex.A-5 in support of her contentions. On the side of the defendant, the 1st defendant had examined himself as D.W.1 and the 2nd defendant was examined as D.W.2. The defendants had marked Ex.B-1 to Ex.B-8. The learned Principal District Munsif, Ulundurpet, on considering the evidences on record both oral as well as documentary rendered a finding that the power of attorney executed by the 2nd defendant in favour of Kuppa Goundar was a valid document and the sale deed executed thereafter by the said Kuppa Goundar in favour of the plaintiff was valid and binding on the 2nd defendant and that the sale in favour of the 2nd defendant had taken place thereafter. Therefore, the learned Trial Judge held that the plaintiff was entitled to the Decree as prayed for. 9. This Judgment and Decree was appealed against by both the defendants to the Principal District Judge, Villupuram, in A.S.No.98 of 2009. The learned District Judge on considering the evidences and the other records also concurred with the finding of the Trial Court and ultimately dismissed the appeal, thereby confirming the Judgment and Decree of the Trial Court. 10. It is challenging this Judgment and Decree that the defendants are before this Court. The learned District Judge on considering the evidences and the other records also concurred with the finding of the Trial Court and ultimately dismissed the appeal, thereby confirming the Judgment and Decree of the Trial Court. 10. It is challenging this Judgment and Decree that the defendants are before this Court. Pending the First Appeal, the 2nd defendant had died and considering the fact that he had sold his entire interest in the suit property in favour of the 1st defendant it appears that the Legal Representatives of the deceased 2nd defendant had not been brought on record. 11. This Court had admitted the above Second Appeal on the following Substantial Questions of Law: “(1) Whether the Courts below were correct in law in not framing an issue with respect to Ex.A.2 - Sale Deed that it was a sham and nominal one? (2) Whether the Courts below are correct in law in not considering the admission of the plaintiff as P.W.1 that she does not know if the sale consideration was paid by her husband to the 2nd defendant particularly when the payment of sale consideration to the 2nd defendant is not proved?” 12. Mr. S. Natarajan, learned counsel appearing on behalf of the appellant / defendant would submit that the Trial Court has failed to frame proper issues regarding the execution and the validity of the sale in favour of the plaintiff. He would further argue that the plaintiff has not proved the passing of consideration to the 2nd defendant in respect of the sale executed by the Power Agent in her favour as per Ex.A.2. This assumes significance since the defendant has denied the execution of the power of attorney in favour of Kuppa Goundar as well as the sale deed in favour of the plaintiff. The learned counsel would further submit that the 2nd defendant had already sold 1 acre to the 1st defendant and has also executed a Will in respect of the remaining extent on 04.06.2001 itself. Therefore, he would contend that nothing remains to be alienated. 13. The learned counsel would further submit that the 1st defendant has been in possession of the entire extent of 5.67 acres as a lessee many years prior to the suit and possession has not been taken by the plaintiff when she had purchased the property under Ex.A.2. Therefore, he would contend that nothing remains to be alienated. 13. The learned counsel would further submit that the 1st defendant has been in possession of the entire extent of 5.67 acres as a lessee many years prior to the suit and possession has not been taken by the plaintiff when she had purchased the property under Ex.A.2. This itself would clearly prove that the sale is only a sham and nominal one. He would further argue that the power of attorney was executed only with an intent of permitting Kuppa Goundar to have a pathway through the suit property to reach his lands and the said power of attorney has been totally misused by the said Kuppa Goundar by executing sale deed in favour of his wife. Therefore, he would submit that the sale deed is a sham and nominal one since possession has also not been given to the plaintiff. 14. The learned counsel would submit that the Court should look into the circumstances surrounding the execution of the deed in order to come to the conclusion as to whether the sale deed was intended to be so. He would rely on the Judgement reported in 2011 (5) CTC 543 - Lakshmamma Vs. Rathinamma, in support of his arguments that the oral evidence against the terms contained in written document regarding the nature of transaction is permissible as per the provisions of Section 91 and 92 of the Evidence Act. He would therefore pray that the appeal be allowed and the Judgement and Decree of the Courts below be set aside. 15. Per contra, Mr. L. Prabakar, learned counsel appearing on behalf of the plaintiff / respondent would submit that the power of attorney, Ex.A.1 had been executed by the said Kuppa Goundar specifically for selling the property and also to mortgage the same. The deed does not talk about the power being granted for forming a pathway. On the contrary, it is for selling the extent of 67 cents in S.No.210 of Kattu Edayar Village, Rishivendiyam, Kalakuruchi, Villupuram District. 16. The learned counsel would submit that the power of attorney was executed at Chennai where the principal, namely, the 2nd defendant was residing. On 14.09.2005 itself the sale deed had been executed in favour of the plaintiff and the plaintiff had also got the revenue records mutated in her name. 16. The learned counsel would submit that the power of attorney was executed at Chennai where the principal, namely, the 2nd defendant was residing. On 14.09.2005 itself the sale deed had been executed in favour of the plaintiff and the plaintiff had also got the revenue records mutated in her name. That the plaintiff intended to sell the property is evident from a mere perusal of Ex.A.5 letter sent by the 2nd defendant to one Annadurai, wherein, he has acknowledged the execution of the power deed in favour of Kuppan and that the power was intended to effect a sale. 17. Therefore, he would submit that it was in pursuance of the power of attorney, Ex.A.1 that the said Kuppa Goundar had executed the sale deed in favour of the plaintiff under Ex.A.2. He would further submit that the cancellation of the power of attorney has been effected under Ex.A.3 only on 17.09.2005 after the execution of the sale deed in favour of the plaintiff by the said Kuppa Goundar and nearly two months later the sale deed Ex.B.1 has been executed in favour of the 1st defendant. As on the date of the execution of the sale in favour of the 1st defendant the 2nd defendant was not the owner of the 67 cents which is the subject matter of the suit. The sale under Ex.B.1 would be valid only for an extent of 4 acres and not for an extent of 67 cents. That apart under Ex.A.2, 67 cents has been conveyed within specified boundaries. He would therefore submit that no case has been made out for interfering with the Judgment and Decree of the Courts below. Discussion: 18. Heard the counsels and perused the records. 19. The following dates and events would be useful for considering the case on hand. Dates Events 04.06.2001 The 1st defendant purchased 1 acre out of 5.67 acres within specified boundaries. Will executed by the 2nd defendant in favour of the 1st defendant. 01.09.2005 The 2nd defendant executes a power of attorney in favour of Kuppa Goundar for an extent of 67 cents out of total extent of 5.67 acres in S.No.210 of Kattu Edayar Village, Rishivendiyam, Kalakuruchi, Villupuram District. 14.09.2005 Kuppa Goundar as power agent sold the suit property to the plaintiff. 17.11.2005 The 2nd defendant cancels the power given to Kuppa Goundar. 14.09.2005 Kuppa Goundar as power agent sold the suit property to the plaintiff. 17.11.2005 The 2nd defendant cancels the power given to Kuppa Goundar. 29.11.2005 The 1st defendant purchased 4.67 acres from the 2nd defendant. 01.12.2005 Caveat lodged by the 1st defendant against the plaintiff and the 1st defendant. Discussion: 20. The suit is filed in respect of an extent of 67 cents comprised in S.No.210 of Kattu Edayar Village, Rishivendiyam, Kalakuruchi, Villupuram District, which is described within specified boundaries. The 2nd defendant is admittedly the owner of this property which is part of the larger extent of 5.67 acres. The 2nd defendant had executed the power of attorney in favour of the 1st defendant. He has admitted the execution in his letter sent to one Annadurai dated 02.09.2005, marked as Ex.A.5. Further the 2nd defendant in his evidence as D.W.2 has admitted this and the same has been extracted by the Court below is extracted herein below: “TAMIL” This would clearly show that the power of attorney is a valid document the same having been executed with the full knowledge and consent of the Principal. 21. A reading of its contents would clearly show that the power had been executed for the purpose of the sale of the said extent of 67 cents. The Courts below have taken note of the various acts that the power agent was authorised to do and one such power as set out in Ex.A.1, was the sale of the property. It is on the strength of this power of attorney that the property has been sold to the plaintiff. A reading of the contents of the sale deed Ex.A.2 would indicate that the sale consideration has been handed over by the plaintiff to the said Kuppa Goundar. In her evidence the plaintiff would submit that the said Kuppa Goundar who had received the sale consideration had also handed over it over to the 2nd defendant. In this regard, when the evidence of D.W.2 is analysed though he would initially submit that no consideration has been passed but when a question was put to him as to whether he has taken any proceedings for the non receipt of the sale consideration against either the plaintiff or the said Kuppa Goundar, the 2nd defendant had answered in negative. 22. 22. The 2nd defendant would also fairly concede that he was very much aware of the sale in favour of the plaintiff and despite such knowledge has proceeded to execute Ex.B.1, sale deed in favour of the 1st defendant. Therefore, it can be concluded that the plaintiff has paid the sale consideration for purchasing the property and the sale is not a sham and nominal one but intended to be acted upon. Therefore, question of law nos.1 & 2 is answered in favour of the plaintiff and against the defendant. 23. Another plea that has been taken at the time of arguments was that the power of attorney was never intended to be acted upon for executing the sale deed in this regard. A perusal of Ex.A.5 would show that the power has been executed for the sale, mortgage etc., of the property. There is no mention that it is executed for creating the pathway. Further, in the deed of cancellation of power, Ex.A.3, the 2nd defendant has not stated that he is canceling the power by reason of the fact that the power agent had misused the power to create the sale in favour of the plaintiff. On the contrary, he has contended that since he intends to personally involve himself in the sale, etc., of the suit property he did not require the services of the power of attorney. 24. Further, the 1st defendant as D.W.1 would submit that there is absolutely no dispute between him and the plaintiff with reference to 67 cents which forms the suit property. He would further depose that he is not aware about the contents of the plaint and neither is he aware of the contents of his written statement. Therefore, from this admission the Court has to only infer that the contents of the written statement has not been stated by the defendant. It appears that the written statement has been prepared by the 1st defendant. This Court is compelled to observe so since the contents of the 2nd defendant’s written statement is identical to that of the 1st defendant. Further, the 1st defendant immediately on getting the sale in his favour has rushed to file the caveat against both the plaintiff and her husband which speaks volumes about his knowledge of the sale in favour of the plaintiff. Further, the 1st defendant immediately on getting the sale in his favour has rushed to file the caveat against both the plaintiff and her husband which speaks volumes about his knowledge of the sale in favour of the plaintiff. This coupled with P.W.2’s admission in cross that he has executed the Power of Attorney comprehending its contents clearly proves the plaintiff’s case. 25. In these circumstances, the Second Appeal deserves to be dismissed and is accordingly dismissed. Consequently, connected Civil Miscellaneous Petitions are also closed. However, there shall no order as to costs.