The burden of proof lies on the party asserting facts, with claims of forgery regarding a registered power of attorney necessitating all relevant parties to be joined to the suit for effective adjudication.

JUDGMENT :

P.VADAMALAI, J.

This Second Appeal is preferred against the judgment and decree, dated 08.02.2018 passed in A.S.No.20 of 2016 on the file of the Principal Subordinate Court at Nagercoil, Kanyakumari District, reversing the judgment and decree, dated 29.02.2016 made in O.S.No.249 of 2012 on the file of the District Munsif-cum-Judicial Magistrate Court, Boothapandi.

2. The appellant is the plaintiff and the respondent is the defendant in O.S.No.249 of 2012 on the file of the District Munsif-cum-Judicial Magistrate Court, Boothapandi.

3. For the sake of convenience, the parties are referred as plaintiff and defendant as arrayed in O.S.No.249 of 2012 on the file of the District Munsif-cum-Judicial Magistrate Court, Boothapandi.

4. It is the case of the plaintiff that the suit property is measuring 5.58 cents comprised in new R.S.No.747/4A 45, Teachers Colony, Shenbagaramanpudur Village, Thovalai Taluk, Kanyakumari District. The plaintiff’s husband Sudalaikannu purchased the suit property from its original owner Sankarji through registered sale deed, dated 24.05.1996. The plaintiff and the said Sudalaikannu have no issue out of wedlock. Sudalaikannu died intestate on 29.10.2006, leaving the plaintiff and her mother-in-law Chellathai as legal heirs. Chellathai died on 29.12.2007. Thereafter, the plaintiff is in exclusive possession and enjoyment of the suit property. So, the plaintiff planned to sell the suit property. On obtaining encumbrance, she learnt that one Sivalingam purchased the suit property from one Udayar as the power of attorney of the plaintiff and her mother-in-law on the basis of the alleged power deed. The plaintiff and her mother-in-law never executed any power of attorney in favour of Udayar at any point of time. He might have forged it. The plaintiff is in possession of suit property which stood in her husband’s name. Hence, the plaintiff lodged a police complaint against Udayar, Sivalingam and others. Knowing these facts, the defendant purchased the suit property from Sivalingam under sale deed, dated 11.02.2009. Hence, the plaintiff has filed the suit for declaration and permanent injunction.

5. It is the case of the defendant that the suit property originally belonged to Sudalaikannu. After his death, the plaintiff and the mother of Sudalaikannu namely Chellathai executed a registered power of attorney in favour of Udayar under document No.488/2007. Prior to her death, the said Udayar sold the suit property to one Sivalaingam through registered sale deed under document No.1731/2007. From the said Sivalingam, the defendant purchased the suit property through registered sale deed, dated 11.02.2009 under document No.2519/2009. So, the defendant is bonafide purchaser. The suit is bad for non-joinder of Udayar and Sivalingam as parties for arriving fair decision. The plaintiff is well aware of execution of power of attorney. The defendant is the lawful owner of the suit property. The plaintiff has no title or right over the suit property and hence, she is not entitled to any decree as sought in the suit.

6. The trial Court has framed the following issues:

(1) Whether it is correct that the suit property is in exclusive possession and enjoyment of the plaintiff?

(2) Whether the plaintiff is entitled to the relief of declaration?

(3) Whether the plaintiff is entitled to the relief of permanent injunct