Shajan Lal vs Ramachandran Pillai
2023 Latest Caselaw 8625 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR. JUSTICE SATHISH NINAN
         WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945
                            RFA NO. 57 OF 2011
 AGAINST THE JUDGMENT AND DECREE DATED 30.11.2010 IN OS 124/2007 OF SUB
                             COURT, KATTAPPANA
                                      -----
APPELLANT/2ND DEFENDANT:

             MR.SHAJAN LAL,
             S/O. ABRAHAM, AGED 27 YEARS, RESIDING AT KURUVIKOMBIL HOUSE,
             MAKUZHI P.O., KADAMAKUDI VILLAGE, KATTAPPANA,
             IDUKKI DISTRICT.

             BY ADVS.
             SRI.S.SREEKUMAR
             SRI.P.MARTIN JOSE
             SRI.M.A.MOHAMMED SIRAJ
             SRI.P.PRIJITH



RESPONDENTS/PLAINTIFF & DEFENDANTS 1, 3 AND 4:

     1       MR.RAMACHANDRAN PILLAI,
             S/O PARAMESWARAN PILLAI, PERMANENTLY R/AT NADAYIL-
             PADINJATTATHIL(H),THAZHAM, CHATHANNOOR PO.,KOLLAM DISTRICT,
             KERALA AND PRESENTLY WORKING AT PB NO.13955,DUBAI,
             UAE,REPRESENTED BY HIS POWER OF ATTORNEY RATHEESH CHANDRAN,
             S/O.RAMACHANDRAN NAIR, T.C. 47/85, SRI.DURGA NAGAR, KARAMANA
             P.O., TRIVANDRUM, PIN 695002.

     2       MR. BABY CHERIAN ,S/O. K.C.KOSHY
             RESIDING AT VALETHU KIZHAKKE THAKADY, KODUKULANJI MURI, AALA
             VILLAGE, CHENGANNOOR, PATHANAMTHITTA, DISTRICT, PIN-689 121.

     3       MR. C.E.RAJAN
             RESIDING AT B.B.VILLA, MAMBRA MURI, CHERIYANAD, CHENGANNOOR,
             PATHANAMTHITTA DISTRICT-689 121.
 RFA NO. 57 OF 2011                   -2-


     4     MR.KOSHY VARGHESE, SO. KOSHY,
           RESIDING AT THAKIDIYIL PUTHENVEEDU, KODUKULANJI, AALA
           VILLAGE-689 126.

           BY ADVS.

           SRI P.CHANDRASEKHAR
           SRI.N.ASHOK KUMAR
           SRI.RAJESH NAIR




     THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 09.08.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                     SATHISH NINAN, J.
           = = = = = = = = = = = = = = = = = =
                   R.F.A. No.57 of 2011
           = = = = = = = = = = = = = = = = = =
          Dated this the 9th day of August, 2023

                       J U D G M E N T

The second defendant in a suit for a declaration

that a power of attorney and a sale deed under challenge

in the suit are null and void, for declaration of title

and recovery of possession, and for mandatory and

prohibitory injunctions is the appellant. The suit was

decreed by the trial court.

2. The plaint schedule property has an extent of 3

acres and 76 cents. The plaintiff claims title over the

same as per Ext.A1 Sale Deed No.2094/1992. The first

defendant is the brother of one Koshy, who was a thick

friend of the plaintiff. Both of them were abroad at

UAE. Koshy decided to return to his native place. He

proposed to make an investment in cardamom plantation.

As suggested by Koshy, the plaintiff also ventured into

the same and purchase of plaint schedule property under R.F.A. No.57 of 2011

Ext.A1. Koshy was entrusted to manage the property and a

power of attorney was given by the plaintiff to Koshy in

the said regard. Later Koshy wanted to avail a loan and

the plaintiff agreed for the same. Subsequently Koshy

passed away. The first defendant-the brother of Koshy,

agreed to look after the property. Sometime later, he

suggested to the plaintiff that there is no income from

the property and it would be better to dispose of the

property. The plaintiff agreed for the same. The

plaintiff executed a power of attorney in favour of the

first defendant to manage the property and to enter into

sale agreements in respect of the property. Sometime

later, the first defendant paid an amount of ` 10 lakhs

to the plaintiff, stated to be advance sale

consideration from an intended purchaser. Subsequently

the first defendant informed the plaintiff that there

were litigations between the heirs of Koshy consequent

to which has arisen delay in completion of the same. In

August, 2007 the plaintiff came to his native place. On R.F.A. No.57 of 2011

enquiries he understood that the first defendant had

already executed a Sale Deed No.2959/2002 in favour of

the second defendant in respect of the plaint schedule

property on the strength of a Power of Attorney

registered as No.162/2002. The plaintiff denies of

having executed any such power of attorney. It is

contended that the power of attorney is forged and

fabricated and that the consequential sale deed is also

null and void. The plaintiffs seeks for: -

(a) Declaration of his title over the plaint schedule

property.

(b) A declaration that the Power of Attorney 162/2002

and Sale Deed No.2959/2002 are null and void.

(c) Recovery of possession on the strength of title.

(d) Mandatory injunction for return of the original of

Ext.A1 Sale Deed.

(e) Prohibitory injunction against encumbering,

alienating and trespassing into the plaint schedule

property.

R.F.A. No.57 of 2011

3. The defendants denied the plaint allegations. It

was contended that the power of attorney is true and

genuine and that the sale deed is valid. It was also

contended that the plaint schedule property was conveyed

to the second defendant for a sale consideration of ` 15

lakhs, out of which ` 10 lakhs was paid directly to the

plaintiff and ` 4,60,677/- towards the loan account of

the plaintiff with the Malanadu Co-operative

Agricultural Development Bank. Accordingly, they prayed

for dismissal of the suit.

4. The trial court found the power of attorney to

be a forged and fabricated one and declared them as null

and void. A decree for recovery of possession was

granted to the plaintiff on the strength of title. The

defendants were further directed to hand over the

original of Ext.A1 sale deed to the plaintiff.

Prohibitory injunction was granted restraining

encumbering the plaint schedule property and from

committing waste therein.

R.F.A. No.57 of 2011

5. Heard Sri.S.Sreekumar, learned Senior Counsel on

behalf of the appellant, Sri.P.Chandrasekhar, the

learned counsel for the first respondent and Sri.N.Ashok

Kumar for the other respondents.

6. The points that arise for determination are: -

(i) Is the finding of the trial court that the Power

of Attorney 162/2002 is a forged and fabricated

document, based on evidence?

(ii) Is the finding of the trial court that the suit

is filed within the period of limitation, correct in

law?

(iii) Was the court right in having granted a decree

for recovery of possession, mandatory and prohibitory

injunctions?

7. Ext.A3 is the photostat copy of the disputed

Power of Attorney bearing No.162/2002. The power of

attorney is dated 25.10.2002 and registered on the same

date. It is the plaintiff's definite plea in the plaint

that, during the period from 13.01.2002 till 04.12.2002, R.F.A. No.57 of 2011

he was abroad at Dubai. Such pleading is not disputed by

the defendants in their written statement. To

substantiate that the plaintiff was abroad during the

period, he produced Ext.A5, notarised copy of his

passport. The exit and entry stamps therein proves the

correctness of the plaintiff's plea. No further

deliberation is necessary to hold that the plaintiff has

not executed and registered the Power of Attorney

bearing No.162/2002 dated 25.10.2002. Consequently, the

power of attorney, and the Sale Deed No.2959/2002

executed on the strength of such power of attorney are

null and void. Incidentally it is also to be noticed

that, but for the residence of the first defendant at

Chengannur, the residence of the plaintiff is at

Trivandrum and the property in question is situated at

Kattappana, however, the power of attorney is seen

registered at the Sub Registry's Office, Chengannur. No

special reason is assigned as to why the power of

attorney happened to be executed and registered at R.F.A. No.57 of 2011

Chengannur.

8. The trial court further took note of the

signature of the plaintiff as obtaining in Ext.A3 power

of attorney, along with his signature in his passport

(Ext.A5), Ext.A2 Power of Attorney (undisputed) and also

Ext.X1 register summoned from the Malanadu Co-operative

Agricultural Development Bank. The Court noticed that

the signature in Ext.A3 is apparently different from

that seen in other documents.

9. The learned Senior Counsel would contend that

the trial court went wrong in relying on the photostat

copy of the documents which are only secondary evidence.

The learned Senior Counsel relied on the judgments in

Siddiqui H. (dead) by Lrs. v. A. Ramalingam 2011 4 SCC 240, Ravindran

P.R. v. Lakshmi and Ors. 2018 (5) KHC 231 to substantiate the

contention. It is also urged that the trial court went

wrong in having proceeded to make a comparison of the

signatures and especially with mere photostat copies. R.F.A. No.57 of 2011

10. Objection with regard to admission of secondary

evidence falls within the realm of mode of proof.

Objections to the admission of secondary evidence is to

be urged at the time of its marking. Photostat copies of

the documents were admitted in evidence without any

objection. Thereafter, it is not open for the appellant

to contend against its admissibility (See R.V.E. Venkatachala

Gounder v Arulmigu Viswesaraswami &V.P Temple (2003) 8 SCC 752,

Dayamathi Bhai v KM Shaffi (2004) 7 SCC 107, Ranvir Singh v Union of India

(2005) 12 SCC 59, T.C.Lakshmanan v. Vanaja & Ors. (2011 SCC OnLine

KER 4171). As regards the comparison of signature made

by the trial court, it is necessary to notice that the

finding/conclusions arrived at by the Court is not

rested on such comparison.

11. It would be appropriate to observe that, even

on the uncontroverted pleadings in the plaint the

plaintiff was abroad on the date on which the Power of

Attorney No.162/2002 was executed and registered.

Further evidence on the same was not necessary. In spite R.F.A. No.57 of 2011

of the same, that the plaintiff has produced a notarised

copy of his passport to substantiate the same. If the

defendants had any challenge regarding the same, it was

open for them to take appropriate steps seeking

production of relevant documents. Such a course was not

adopted. When the plaintiff denied the execution of the

Power of Attorney No.162 of 2002 on the strength of

which Sale Deed No.2959/2002 was executed by the first

defendant, the burden was squarely on the defendants to

prove the due execution and genuineness of the power of

attorney. In spite of the same, defendants 1 and 2 did

not even mount the witness box. No steps were taken to

prove the said documents. On the evidence, the trial

court was right in having held against the power of

attorney and the sale deed.

12. It is the argument of the learned Senior

Counsel that, though the plaintiff had knowledge of the

power of attorney and the sale deed in the year 2002

itself, the suit is filed only in 2007 which is beyond R.F.A. No.57 of 2011

the statutorily prescribed period of three years. Hence

the suit is barred by limitation, it is contended.

Though a plea of limitation was not raised in the

written statement, the trial court formulated an issue

regarding limitation and considered the same. The

material on which the defendants contend that the

plaintiff had knowledge regarding the documents in 2002

itself are, Ext.B1 Release Deed executed by the Malanadu

Co-operative Agricultural Development Bank and Ext.X1

register maintained in the Bank. Ext.B1 is the Release

Deed in respect of a loan availed by Koshy, the brother

of the first defendant as the power holder of the

plaintiff. The loan availed by Koshy was repaid by his

brother does not mean that the plaintiff was aware of

the sale deed or the power of attorney. Ext.X1 is the

register of the Bank which shows that the plaintiff had

withdrawn his shares. However, that does not in any

manner help in imputing knowledge of the sale or the

power of attorney upon the plaintiff. Here it is to be R.F.A. No.57 of 2011

noticed that, as PW1, the plaintiff has deposed that an

amount of ` 10 lakhs was received towards advance sale

consideration in the year 2004. There is no challenge or

dispute on the said statement. Neither the first or

second defendant stepped into the witness box to prove

that the plaintiff was aware of the sale deed and power

of attorney in the year 2002 itself. Therefore, the

finding of the trial court on the issue of limitation is

correct and warrants no interference.

13. It is next argued by the learned Senior Counsel

that the entire sale consideration was paid and hence

there could not be a decree for recovery of possession.

As noticed earlier, according to the plaintiff, he has

received only ` 10 lakhs and as advance sale

consideration. There is nothing to indicate that the

amount paid into the loan account was as part of the

sale consideration. That apart, as noticed above, it is

the plaintiff's case that an amount of ` 10 lakhs was

received in the year 2004 towards advance sale R.F.A. No.57 of 2011

consideration. The said contention is not challenged.

That apart, if at all any amount was paid towards sale

consideration, that does not result in transfer of

interest in the property. There is no right vested with

the defendants to resist the suit for recovery on title.

14. The title of the plaintiff under Ext.A1 is

beyond dispute since even the defendants claim title

under the plaintiff. The power of attorney and the sale

deed having been found to be null and void, the

plaintiff is entitled for declaration of title and

recovery of possession. The plaintiff is entitled to get

return of his original title deed. The defendant is

liable to be restrained from encumbering and committing

waste in the property. The trial court was right in

having granted a decree accordingly.

15. The finding of the trial court, are based on

evidence. As discussed in the earlier part of the

judgment, the court has appreciated the evidence in the

right perspective. The judgment and decree of the trial R.F.A. No.57 of 2011

court warrants no interference.

The appeal fails and is dismissed.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge