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HIGH COURT OF JUDICATURE AT MADRAS
P.R. SHIVAKUMAR, J.
K. Sundararaj – Appellant
Versus
R. Chellamuthu & Others – Respondents
S.A. No. 429 of 2007
Decided On : 05-02-2015
Indian Evidence Act - Section 114 – Indian Penal Code - Sections 147, 263, 323 & 506(i) – Criminal Procedure Code - Section 91 – Civil Procedure Code - Section 96 - Order 41 - Rule 31 - Peaceful possession and enjoyment of property - Permanent injunction - Deed of general power of attorney - Plaintiff filed Court of District Munsee against respondents herein for a declaration that deed of general power of attorney allegedly executed by him in favor of first respondent herein second defendant and registered as Document office of Sub-Registrar is forged void and invalid for a declaration that anything done by first respondent second defendant pursuant to said deed of power of attorney shall be void and not binding on appellant plaintiff and for a permanent injunction restraining respondents herein defendants from entering into suit property and disturbing plaintiffs peaceful possession and enjoyment of same - Trial Judge by judgment and decree decreed suit as prayed for against which second defendant first respondent in second appeal alone filed an appeal file of Sub-Court - Lower appellate Judge by judgment and decree reversed judgment of trial Court and set aside decree passed by trial Court with result that original suit came to be dismissed - As against reversing judgment and decree of lower appellate Court appellant herein plaintiff has brought forth present second appeal on various grounds set out in memorandum of grounds of second appeal – Held, Fact remains that neither trial Court nor lower appellate Court adverted to said aspect - In light of fact that there is some correction in thumb impression register relating to office attendance for registration of document copies of which have been marked as Courts below ought to have considered effect of same and failure to do so will amount to an omission to consider a material aspect for rendering a correct and complete finding regarding issue in controversy - Examination of person who held office of Sub-Registrar as could have thrown light on above said aspect of case - Unfortunately neither plaintiff nor defendants chose to summon him to examine as a witness - Plaintiff appellant could have summoned then Sub-Registrar to bring truth - Having failed to do so he has tried to cause blame on defendants respondents - Therefore third substantial question of law has to be answered holding that non-examination of Sub-Registrar concerned who registered deed of Power of Attorney shall be a minus point for respondent defendants - But it cannot be stated to be vital to their defense case - Fact remains that parties to suit have not chosen to adduce best evidence for resolving controversy - Plaintiff could have taken steps for getting opinion of a handwriting expert as to whether signatures found appellant plaintiff are not Similarly defendants have also showed lethargy and failed to adduce best evidence available at their disposal - In fact when it is case of plaintiff that deed of Power of Attorney itself is a forged one respondents who have purchased property on strength of power of attorney could have evinced interest to sustain their title - They have not chosen to lead any evidence - failure on their part to lead evidence can be understood because in case deed of power of attorney is held to be null and void their remedy would lie against second defendant first respondent - That is reason why second defendant first respondent alone chose to file appeal as against decree of trial Court granted in favor of plaintiff appellant herein - However even second defendant had not chosen to enter box nor did he examine any one of attesters in proof of his defense case - Under said circumstances lower appellate Court is not right in law in dismissing suit besides setting aside decree granted by trial Court in favor of plaintiff - Appeal is allowed
P.R. SHIVAKUMAR, J.
1. The plaintiff in the original suit is the appellant in the second appeal. The first defendant in the suit is the second respondent and the second defendant in the suit is the first respondent in the appeal. Defendants 3 and 4 in the original suit are the respondents 3 and 4 in the second appeal.
2. The plaintiff filed the suit O.S. No. 218 of 2004 in the Court of District Munsif, Kangeyam against the respondents herein for a declaration that the deed of general power of attorney dated 26.02.2001 allegedly executed by him in favour of the first respondent herein/second defendant and registered as Document No. 37/Book 4 in the office of Sub-Registrar, Vellakoil is forged, void and invalid, for a declaration that anything done by the first respondent/second defendant pursuant to the said deed of power of attorney dated 26.02.2001 shall be void and not binding on the appellant/plaintiff and for a permanent injunction restraining the respondents herein/defendants from entering into the suit property and disturbing the plaintiff's peaceful possession and enjoyment of the same. The learned trial Judge, by judgment and decree dated 15.06.2006, decreed the suit as prayed for, against which the second defendant (first respondent in the second appeal) alone filed an appeal in A.S. No. 32 of 2006 on the file of Sub-Court, Dharapuram. The learned lower appellate Judge, by judgment and decree dated 25.01.2007, reversed the judgment of the trial Court and set aside the decree passed by the trial Court with the result that the original suit came to be dismissed. As against the reversing judgment and decree of the lower appellate Court, the appellant herein/plaintiff has brought forth the present second appeal on various grounds set out in the memorandum of grounds of second appeal.
3. Since the ranks of the respondents are not in line with the ranks of the defendants in the original suit, for sake of convenience and clarity, the parties are referred to in accordance with their ranks in the original suit and in appropriate places, when necessity arises, their ranks in the second appeal also shall be indicated.
4. The plaintiff (appellant in the second appeal) filed the original suit based on the allegations found in the plaint as well as the reply statement that are, in brief, as follows:
The plaintiff's father purchased the first item of the suit properties in two parts - one from C. Palanisamy Chettiar under a sale deed dated 19.02.1971 and the other from Palanisamy and another under a sale deed dated 07.11.1974. After the said purchases, the father of the plaintiff clubbed both the portions into a single plot and the same is shown as Item 1 of the plaint schedule properties. In a portion of Item 1, the father of the plaintiff put up a mill and in the other portion he put up a house and was in enjoyment of the same. On the death of the father of the plaintiff on 04.11.1990, Item 1 of the suit properties became the property of the joint family consisting of plaintiff, his brothers and their mother. Item 2 of the suit properties was purchased by the plaintiff under a sale deed dated 06.02.1985 as the self-acquisition and he was in exclusive possession and enjoyment of the same.
5. The plaintiff had borrowed some amount for his business from the first defendant R. Subramaniam, who was doing finance business in the name and style of Sri Manikumar Finance at Vellakoil. While repaying the said amount borrowed from him, there arose a difference of opinion between the plaintiff and the first defendant and consequently, the first defendant made attempts to recover a huge amount by using coercive methods with the help of his close associates. Hence, on a complaint made by the plaintiff, a criminal case was instituted against the first defendant and his close associates in C.C. No. 129 of 1999 on the file of the Judicial Magistrate, Kangeyam. The institution of the criminal case enraged the first defendant and he along with hi
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