The burden of proof is on the defendants to prove the genuineness of the power deed, and the plaintiffs must prove misrepresentation and fraud in challenging the genuineness of the deed.

This second appeal is focussed by the defendants as against the judgment and decree dated 13.02.2002 passed in A.S.No.28 of 1998 by the learned Subordinate Judge, Palani, in reversing the judgment and decree dated 06.01.1998 passed in O.S.No.839 of 1991 by the learned District Munsif, Palani.

2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.

3. Niggard and bereft of details, the case of the plaintiffs as stood exposited from the plaint could be portrayed thus:

The plaintiffs are the absolute owners of the suit properties measuring an extent of 1 acre of land in 95, East Ayakudi Village, Palani Taluk, which they wanted to get divided into various house sites only and intended to sell the same. Consequently, the plaintiffs executed the power deed, Ex.A1 in favour of the second respondent, whom they knew for a pretty long time, so as to get the plots carved out into plots and not to sell the property through him. However, taking undue advantage of the plaintiffs illiteracy various additional recitals in the power deed Ex.A1 crept in, as though the plaintiffs authorised the second respondent to sell their land also. The second defendant unauthorizedly and illegally sold the plaintiffs property in favour of the defendants 1 and 3 as per two sale deeds Ex.B1 and B2 dated 19.09.1986 respectively, at the rate of 50 cents each. Hence, the suit.

4. The defendants filed refutatory written statement, denying and refuting, challenging and impugning the allegations/averments in the plaint by taking various pleas; the pith and marrow, the warp and woof of them would inter-alia run thus:

Volitionally and voluntarily the plaintiffs executed the power deed as contained in Ex.A1, authorizing the second defendant to execute the sale deed on behalf of the plaintiffs also and in commensurate with it, Exs.B1 and B2 emerged at the instance of the second defendant. The sale considerations concerning Exs.B1 and B2 were received by the plaintiffs. Accordingly, they prayed for the dismissal of the suit.

5. The trial Court framed the relevant issues. During trial, the first plaintiff examined himself as P.W.1 and Exs.A.1 to A.6 were marked on the side of the plaintiffs; D.Ws.1 to 4 were examined and Exs.B.1 to B14 were marked on the side of the defendants.

6. Ultimately, the trial Court dismissed the suit.

7. Being aggrieved by and dissatisfied with the Judgment and decree of the trial Court, the plaintiffs filed A.S.No.28 of 2008 before the Sub Court, Palani, which reversed the Judgment and decree of the trial Court and decreed the original suit.

8. Animadverting upon the first appellate Courts Judgment and decree, this second appeal is focussed by the defendants on various grounds; the gist and kernel of them would inter-alia run thus:

The Judgment and decree of the first appellate Court is against law and weight of evidence as suo-motu the doctrine of “non-est factum” has been ushered in. There was no issue framed in that regard by the trial Court. In the absence of any prayer to get set aside the power deed, the first appellate Court was not justified in deciding the case in favour of the plaintiffs. The prayer to get set aside Exs.B1 and B2 was also not made in the plaint. The suit was barred by limitation. Accordingly, they prayed for setting aside the Judgment and decree of the first appellate Court and for the dismissal of the original suit.

9. At the time of admitting this second appeal, my learned Predecessor framed the following substantial question of law:

“1. Whether the lower appellate court is right in law in invoking the Doctrine of “non-est Factum” in the absence of any pleading or proof, especially when no issue in this regard was raised before the Trial Court?

2. Whether the Lower Appellate Court has not misdirected itself in applying the Doctrine of “non-est Factum”, and holding Exhibit A-1 void and not voidable, when the disparity alleged is only regarding