IN THE HIGH COURT OF MADRAS
T. Mathivanan, J.
B. Raghumaran (Rep. by his Power Agent, R. Bharathidasan) - Appellant
Versus
Mrs. Pushpabai & Ors. - Respondents
S.A. No. 392 of 2015 and M.P. No. 1 of 2015
Decided On : 08-06-2016
Code of Civil Procedure, 1908 – Sections 5(2) and 100 - Evidence Act - Section 114 – Civil Suit - Sale Deed - Encumbrance of suit properties - Cancellation of Power Deed- Whether lower Appellate Court erred in law in holding that second defendant had no knowledge about Cancellation of Power Deed, when his evidence and that of first defendant prove otherwise - When conduct of defendants show that Sale Deed under Ex.B2, was executed without any consideration, whether lower Appellate Court erred in law in holding that defendants had no knowledge about Ex.A5 - Originally suit was filed by plaintiffs to declare Sale Deed which is said to have been executed in favour of first defendant by second defendant as null and void, not binding upon him and consequently to restrain defendants from making further encumbrance of suit properties by any means - Appeal filed by defendants in A.S. on file of Additional Subordinate Judge, was allowed reversing judgment and decree of trial Court - Held, lower Appellate court is absolutely right and perfect in answering the issue and given the finding saying that the second defendant had no knowledge about the cancellation of Power Deed (Ex.B1) - There is no proof to show that the Sale Deed under Ex.B1, was executed without any consideration and hence the second substantial question of law is also answered as against the appellant/plaintiff. It is also answered that the defendants had no knowledge about Ex.A5 (cancellation deed) General Power of Cancellation Deed - On perusal of order, it reveals that first defendant had lodged a complaint with Police as against plaintiff B. Raghumaran and others, alleging that they had trespassed into her property, which is purchased by her measuring 5025 sq. feet - Based on her complaint, Police Officer, who was placed in-charge of Mayiladuthurai Police station had registered a case under Sections 452 & 457 of IPC- Subsequently, that complaint was forwarded to Tahsildar of Mayiladuthuai - Sub Divisional Executive Magistrate-cum-Revenue Divisional Officer, and directed both parties to maintain peace and tranquillity and both of them were restrained from exercising their rights over property till their rights are properly adjudicated in Competent Civil Court - Appeal dismissed.
T. Mathivanan, J.
This memorandum of second appeal has been directed against the judgment and decree dated 22.09.2014 and made in the appeal in A.S. No. 30 of 2012 on the file of the Additional Subordinate Judge, Mayiladuthurai.
2. The appellant herein is the plaintiff in the suit in O.S. No. 174 of 2010, whereas the respondents are the defendants.
3. For the sake of convenience and for easy reference, the appellant may hereinafter be referred to as the plaintiff, whereas, the respondents be referred to as the defendants, where ever, the context so require, as it is the character of the parties to the suit.
4. Originally the suit was filed by the plaintiffs to declare the Sale Deed dated 21.03.2007, which is said to have been executed in favour of the first defendant by the second defendant as null and void, not binding upon him and consequently to restrain the defendants from making further encumbrance of the suit properties by any means.
5. The defendants had contested the suit by filing their written statement. On scrutinisation and appreciation of the evidences both oral and documentary, the learned trial Judge viz., Principal District Munsif, Mayiladuthurai had proceeded to decree the suit as prayed for.
6. The appeal filed by the defendants in A.S. No.30 of 2012, on the file of the Additional Subordinate Judge, Mayiladuthurai was allowed reversing the judgment and decree of the trial Court. Being aggrieved by the judgment of the first Appellate Court, the plaintiff stands before this Court with this appeal.
7. Heard Mr. V. Raghavachari, learned counsel appearing for Mr. Avinash Wadhvani, learned counsel, who is on record for the appellant and Mr. R. Subramanian, learned counsel appearing for Mr. G.N. Sreedharan, learned counsel, who is on record for the respondents 1 & 2.
8. This Second Appeal came to be admitted based on the following three substantial questions of law:
(a) Whether the lower Appellate Court erred in law in holding that the second defendant had no knowledge about the Cancellation of Power Deed, when his evidence and that of the first defendant prove other wise?
(b) When the conduct of the defendants show that the Sale Deed under Ex.B2, was executed without any consideration, whether the lower Appellate Court erred in law in holding that the defendants had no knowledge about Ex.A5?
(c) When the second defendant had admittedly not handed over the entire sale consideration and there is no proof for paying a sum of Rs.5,50,000/- by him to his principal, whether the lower Appellate Court erred in law in not drawing proper inference to it?
Apart from the substantial questions of law formulated above, this Court finds that the following three additional substantial questions of law are also involved in this case and therefore, they are being formulated as contemplated under the proviso (2), Sub-Section 5 of Section 100 of Code of Civil Procedure.
(i) Whether the power agent Mr. R. Bharathidasan is having competency to verify and sign the plaint on behalf of the plaintiff Mr. B. Ragumaran?
(ii) Whether the Additional District Munsif Court, Mayiladuthurai was not having pecuniary jurisdiction to entertain the suit?
(iii) Whether the suit in O.S.No.174 of 2010 is barred by limitation?
The arguments advanced by Mr. V. Raghavachari, learned counsel appearing for the plaintiff have been mainly revolving around the first substantial question of law only. He has invited the attention of this Court to the documents under Ex. A6 & A7 viz., the letter from one A. Kannan, to the second defendant, Thangaraj (A6) and the returned envelope (A7) respectively. Ex. A6, is in vernacular language. The translated version in English is given as under:
"you were appointed as my power agent under a registered Power of Attorney Deed dated 15.12.2006, in respect of my properties (vacant house sites) comprised in T.S. No. 372/ 10-B measur
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