Bare permanent injunction suit not maintainable when title disputed via power of attorney denial; declaration required.

COMMON JUDGMENT :

P.B. BALAJI, J.

These Second Appeals have been filed against the Judgment and Decree dated 12.03.2025 made in A.S. Nos. 56 to 58 of 2019 on the file of the Sub Court, Melur, which confirmed the Judgment and Decree in O.S. Nos. 72, 81 and 82 of 2008 on the file of the District Munsif Court, Melur, dated 28.08.2017, respectively.

2. I have heard Mr. C. Vakeeswaran, learned counsel for the appellants, and Mr. R. Suriyanarayanan, learned counsel appearing for the contesting first respondent. I have also gone through the records placed before me by way of a typed set of papers, as well as the decisions relied upon by the learned counsel for the appellants.

3. The plaintiffs are the appellants in these Second Appeals. Having unsuccessfully sought the relief of permanent injunction to restrain the defendants from interfering with the alleged peaceful possession and enjoyment of the respective properties belonging to the plaintiffs, these appeals have been filed. The case of the plaintiffs in the respective suits is that they are bona fide purchasers for value, of plots in an approved layout and that the original owners, namely the first defendant and two others, had executed a power of attorney in favour of one Mr. N. Subramanian on 31.10.1990, and that the plaintiffs purchased the suit properties from the said power agent who represented the owners, including the first defendant. According to the plaintiffs, they were put in possession, and since the first defendant started interfering with their possession, the suits came to be filed. The suits were resisted by the first defendant, contending that the power of attorney was not executed by him and that the lands continued to be in his possession and enjoyment. The sisters of the first defendant, namely defendants 2 and 3, were also arrayed as parties to the suits. The Trial Court as well as the First Appellate Court negatived the claims of the plaintiffs and dismissed the suits for permanent injunction.

4. The learned counsel for the appellants, Mr. C. Vakeeswaran, would firstly contend that the first defendant, except for the denial of execution of the power of attorney, has not placed any material to disprove the title of the plaintiffs and, therefore, there was no necessity for the appellants to seek the relief of declaration. In this regard, the learned counsel has relied on the judgment of the Hon’ble Supreme Court reported in 2008 (4) SCC 594 in the case of Anathula Sudhakar v. P. Buchi Reddy (dead) by LRs and others. It is also the submission of Mr. C. Vakeeswaran, learned counsel for the appellants, that though the first defendant denied the execution of the power of attorney, contending that his name is only Sonai Samban and not Oyyappan @ Sonai Samban as described in the power of attorney, reference is made to Ex. A14 – sale agreement, and the fact that the second defendant had attested the power of attorney in Ex. A5 as one of the attesting witnesses. The learned counsel would state that the plaintiffs had clearly established that the first defendant alone had executed the power of attorney. He would also rely on Exs. A6, A8 and A12 – Revenue records, to contend that subsequent to the purchase, the plaintiffs have also paid kist in their names and have thereby clearly established possession of the suit property, entitling them to the relief of permanent injunction. The learned counsel also relied on the decision of the Hon’ble Supreme Court reported in 2006 (4) Supreme 62 in the case of Anil Rishi v. Gurbaksh Singh, wherein the Hon’ble Supreme Court dealt with the distinction between burden of proof and onus of proof, and held that the initial burden would always be on the plaintiffs, and where a fiduciary relationship is alleged, the same must be established before any presumption of undue influence can be drawn. The learned counsel would therefore pray for the Second Appeals to be admitted and heard on merits on the following substantial questions of law, s