The central legal point established in the judgment is that the plaintiff's failure to prove the cancellation of Power of Attorney and subsequent sale of properties led to the dismissal of the suit.

JUDGMENT :

Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code to set aside the judgment and decree, dated 27.04.2010 passed in O.S.No.679 of 2007 on the file of the Additional District Court-cum-Fast Track Court No.IV, Coimbatore, Tiruppur.

A. The Appeal Suit :

This Appeal Suit is filed aggrieved by the judgment and decree, dated 27.04.2010 in O.S.No.679 of 2007, on the file of the Additional District Court-cum-Fast Track Court - IV, Coimbatore, Tiruppur, in and by which, the suit filed for partition and separate possession of the 1/3rd share in the suit property was dismissed by the Trial Court. For the sake of convenience, the parties are referred to as per their array in the Original Suit itself.

B. The Plaint :

2. The case of the plaintiff is that the defendant is the brother of the plaintiff. In the year 1963, the plaintiff, the defendant, another brother namely, Subbiah Naidu and their mother, Rangammal, partitioned the property belonging to them vide Doct.No.856/1963 on the file of the Sub-Registrar, Sulur. Thereafter, the said Subbiah Naidu relinquished all his rights in favour of the defendant. Suit properties belonged to the mother of the plaintiff and the defendant Rangammal. She died intestate in the year 1970. After her death, the suit properties were enjoyed in common. While so, the plaintiff and the defendant decided to form a lay out of the suit property and sell the same and accordingly, the plaintiff executed a General Power of Attorney to promote and sell the suit property as sites and the said Power of Attorney, dated 27.03.1965 was registered as Doct.No.4/1965 on the file of the Sub-Registrar, Sulur. However, since there was no progress, the plaintiff gave proper intimation to the defendant and with his knowledge, the registered power was cancelled on 19.04.1975 which was registered as Doct.No.76/1975 on the file of the Sub-Registrar, Sulur. The defendant, after cancellation of the Power of Attorney, has attempted to alienate the suit property. Hence, the plaintiff issued a public notice and thereafter, the present suit is filed.

C. The Written Statement & The Reply :

3. The suit is resisted by the defendant by filing written statement. It is the contention of the defendant that as far as the suit property is concerned, except for the properties ad-measuring 1.28 cents in G.S.No.367/2 and 36.5 cents in G.S.No.363, all the other properties are sold to third parties as house sites pursuant to Power of Attorney, voluntarily executed by the plaintiff in favour of the defendant. The plaintiff had received his share of the sale consideration directly from the purchasers. The plaintiff discharged all his debts only out of the said sale consideration. At present, there are several buildings and more than 100 persons are in occupation of the suit property. As far as the above said 2 extents mentioned in G.S.No.367/2 and G.S.No.363 are concerned, the plaintiff and the defendant have got 1/2 undivided share along with one C.R.Venkatsalu Naidu, brother of the plaintiff and the defendant’s father. Therefore, unless the said co-owners are also impleaded as parties, no partition in respect of the said lands is also possible. As a matter of fact, the plaintiff is not co-operating for partition of the said property.

4. Additional written statement was also filed to the amended plaint. To the written statement filed by the defendant, the plaintiff filed a reply, in which, it was contended that the plaintiff cancelled the Power of Attorney on 19.04.1975 well before the properties are sold and the plaintiff also handed over a copy of cancellation deed to the defendant for his information. Having received the information, the defendant sold the property with a malafide intention to cause wrongful loss to the plaintiff.

D. The Issues :

5. On the strength of the above pleadings, the Trial Court framed six issues which are as follows:-

(i) Whether the properties in G.S.No.367/2 and G.S.No.363 alone are available for partiti