Madras High Court
Sarojini (Died) vs A.Ramesh Babu on 28 September, 2021
A.S.No.507 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 28.09.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.S.No.507 of 2017
Settu (Died)
1.Sarojini (Died)
2.Tamil Kavitha
3.Tamisharasi ...Appellants
Vs.
A.Ramesh Babu ...Respondent
Prayer: Appeal Suit filed under Section 96 of the Code of Civil
Procedure against the Judgement and Decree dated 10.07.2017, passed
in O.S.No.6 of 2013, on the file of the III Additional District Judge,
Vellore at Tirupattur.
1/20
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
For Appellants : Mr.S.Subbiah
Senior Counsel
for Ms.Elizabeth Ravi
For Respondent : Mr.P.A.Sudesh Kumar
JUDGMENT
The defendants 2 to 4 are before this Court challenging the
Judgement and Decree passed by the III Additional District Judge,
Vellore at Tirupattur in O.S.No.6 of 2013. The defendants 2 to 4 had
been added subsequently after the demise of the sole defendant, S.Settu
by orders dated 22.09.2015 in I.A.No.77 of 2015. For the ease of
understanding the parties are referred to in the same litigative status as
before the Trial Court. The plaintiff had filed a suit referred above for
the following reliefs:
“a) declaring the plaintiff's right, title and interest to the suit
property,
b) directing the defendants to deliver vacant possession of
suit schedule mentioned property to the plaintiff within the time to
be fixed by this Hon’ble Court,
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
c) in default of the defendants permitted the plaintiff to take
possession of suit schedule mentioned property through court
process,
d) directing the defendants to pay damages of Rs.5,000/-
per month to the plaintiff from the date of suit till the plaintiff, is put
to possession of the schedule mentioned property.
2. The suit was filed in respect of the following properties:
“Vellore District, Ambur Sub-District, Ambur Taluk,
Devalapuram Village, Govt. Dry S.No4/1A, as sub division 4/1A2
and 4/1A3, extent 1.64 acre of dry land, in this layout formed in the
extent of 0.64 acre and in this layout plot No.17 and 18 and RCC
house building thereon with ground floor and 1st floor with electric
wirings and fittings, service connection.
Boundaries : North of street, South of Street, East of
Mahamada Bi property, West of V.Abdullah Basha and
M.Madhiyallagan properties, in the middle east to west both sides
30 feet, north to south both sides 50 feet, total extent 1500 sq.foot
(139.35 sq.metre) site and R.C.C. house building of ground floor
and 1st floor with electric service connection and drinking water tap
connection and meter deposit.”
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
Plaintiff's Case:
3. It is the case of the plaintiff that the suit property belonged to
the deceased 1st defendant. The 1st defendant had executed a general
power of attorney dated 24.08.2012 in favour of one M.Balaji Prasad in
respect of the same. On the strength of this general power, the power
agent had sold the suit property to the plaintiff by a registered sale deed
dated 05.09.2012. The sale consideration arrived at was a sum of
Rs.11,00,000/-, which was already paid by the plaintiff to the 1st
defendant through his power agent.
4. It is the further case of the plaintiff that on the date of the sale,
the 1st defendant had requested the plaintiff to grant him three months
time to vacate the suit property, in which they were then residing.
However, contrary to this promise, the 1st defendant had failed to
vacate the premises and thereafter started evading the promise to
vacate. The plaintiff would therefore submit that the 1st defendant has
to pay compensation of Rs.5,000/- per month as damages with effect
from 05.12.2012 for the wrongful use and occupation of the suit
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
property. The plaintiff had also revoked the permission to continue in
occupation of the property with effect from 06.12.2012.
5. It is the case of the plaintiff that setting out all these facts, he
had issued a legal notice to the 1st defendant calling upon him to vacate
and deliver vacant possession of the suit property on or before
31.01.2013 together with damages at the rate of Rs.5,000/- per month.
The 1st defendant refused to receive the legal notice and to handover
vacant possession of the property. This constrained the plaintiff to file
the above suit.
Defendants' case:
6. The 1st defendant had not filed any written statement, though
the suit was filed on 08.02.2013. The 1st defendant had not appeared
through counsel before the Trial Court and pending the proceedings he
had also passed away and his legal heirs were brought on record as
defendants 2 to 4 and they are the appellants before this Court. On
their entering appearance in the suit, the 3rd defendant had filed a
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
written statement, which was adopted by defendants 2 and 4.
7. The defendants at the outset would deny the allegations
contained in the plaint as false and vexatious. They would submit that
the value of the property is nearly Rs.40,00,000/-. The 1st defendant
had purchased the property as a vacant site and had thereafter
constructed a house consisting of three floors and other amenities (the
suit schedule however reflects only the ground floor and first floor of
an RCC building constructed upon Plot Nos.17 and 18).
8. It is their case that they had been in continuous possession of
the suit property and they own no other property. They would also
contend that there was no legal necessity for the 1st defendant to sell the
property nor was there a need to execute a power of attorney. They
would contend that the power agent, Balaji Prasad was a stranger to the
1st defendant and therefore the Power of attorney executed in his favour
cannot be relied upon. The, subsequent sale deed dated 05.09.2012
executed by the power agent for and on behalf of the 1st defendant was
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
also not a true and enforceable document.
9. The defendants would further contend that the contention in
the plaint that the symbolic possession had been handed over on the
date of the execution of the sale deed in favour of the plaintiff was
totally wrong. It is the defendants who have been and who continue to
be in possession and enjoyment of the entire premises.
Trial Court:
10. On considering the pleadings on both the sides, the learned
III Additional District Judge, Vellore at Tirupattur had framed the
following issues:
“i)Whether the suit has been not properly valued for
the purpose of Court fee as alleged in the statement?
ii)Whether the general Power of attorney dated
24.8.2012 alleged to have been executed by D1 in fevour of
Balaji Prasad is true and valid?
iii)Whether the sale deed dated 5.9.2012 executed by
Balaji Prasad as Power of attorney of D1 in favour of
plaintiff is true and valid ?
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
iv)Whether the defendants are in permissive
possession of the suit property as alleged in the plaint ?
v)Whether the plaintiff is entitled to the relief of
declaration of title?
vi)Whether the plaintiff is entitled to possession as
prayed for?
Vii)Whether the plaintiff is entitled to damage as
prayed for?
Viii)To what other relief?”
11. To prove their case the plaintiff had examined himself as
P.W.1 and four others as P.W.2 to P.W.4 and marked Ex.A.1 to
Ex.A.5. On the side of the defendants, the 3rd defendant had examined
herself as D.W.1 and marked Ex.B.1 to Ex.B.7.
12. The learned Judge on considering the evidence on either side
came to the conclusion that the 1st defendant had executed Ex.A.1,
general power of attorney in favour of his power agent, who inturn had
executed the sale deed, Ex.A.2 in favour of the plaintiff and therefore
the sale deed dated 05.09.2012 was a valid one.
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
13. The learned Judge also held that, in the light of the
availability of registered document Ex.A.1, Ex.A.2 and Ex.A.5, and
considering the fact that the defendants were not in a position to rebut
the same, the oral evidence let in by the defendants cannot be taken
note of especially in relation to the execution of Ex.A.2 sale deed. The
learned Judge, however held that defendants 2 to 4 continued to be in
possession and enjoyment of the suit property and had rejected the
claim of the plaintiff for damages. Therefore, the suit was allowed to
the extent of declaring the plaintiff's title to the suit property and his
right to recover possession of the same from the defendants 2 to 4.
14. Challenging the said Judgement and Decree the defendants 2
to 4 are before this Court. After hearing the arguments of the counsels,
the following points for consideration arise in the above First Appeal:
(i) Whether the sale in favour of the plaintiff was true
and valid especially when the passing of consideration to
the deceased 1st defendant has not been proved by the
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
plaintiff?
(ii) Whether there is an impersonation of the plaintiff
since the person identified in Ex.A.2 and Ex.A.5 are totally
different and the name of the father of the 1st defendant
given in Ex.A.1 and Ex.A.5 are different?
15. Mr.S.Subbiah, learned senior counsel appearing on behalf of
the learned counsel for the appellants / defendants 2 to 4 would contend
that suspicious circumstances surround the execution of Ex.A.1, power
of attorney followed by Ex.A.2, sale deed. He would contend that in
Ex.A.1 power of attorney, the name of the father of the 1st defendant is
shown as Chinna Kannu, whereas in the photo ID, Ex.A.5, given at the
time of registration his father's name is shown as Chinna Kutty. The
pan card attached also shows the father's name as Chinna Kannu.
16. The learned senior counsel would further state that the
documents Ex.A.2 and Ex.A.5 does not inspire confidence since the
photo graph of the plaintiff affixed in both these documents appeared
to be different and therefore casts a doubt on the very execution of the
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
sale deed. He would further contend that though in Ex.A.5 agreement
of sale, it is stated that a sum of Rs.10,00,000/- had been received on
the date of the agreement, in Ex.A.2 sale deed it has been stated that
sum of Rs.10,00,000/- was received on the date of the said document.
17. The learned senior counsel would therefore contend that the
very passing of consideration has not been proved by the plaintiff to the
deceased 1st defendant. He would argue that the entire transaction has
been orchestrated by the power agent of the deceased 1st defendant who
was none other than the brother-in-law of the plaintiff and therefore
they have all ganged up to usurp the property.
18. The learned senior counsel would draw the attention of the
Court to the cross examination of the plaintiff, where the plaintiff
would admit that in the documents, he has been shown only as Ramesh
and not as Ramesh Babu. He would also draw the attention of the
Court to the pleading in the plaint and in the proof affidavit of the
plaintiff that the entire sum of Rs.11,00,000/- had been paid to the
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
power agent, which would clearly show that the plaintiff has not been
able to establish the receipt of the sale consideration by the 1st
defendant.
19. The learned senior counsel would further submit that the
signatures of the 1st defendant appears to be different in the document
Ex.A.5 as well as Ex.A.1. He would submit that nowhere in the
pleading has the plaintiff made a mention about the agreement of sale
Ex.A.5 and the said document has been marked only during the
evidence through the 1st defendant who was examined as D.W.4. He
would draw extensively from the evidence of P.W.3, the power agent to
state that he had no personal knowledge about the passing of
consideration to the plaintiff. Therefore, in the absence of such proof
the very sale deed fails and cannot be taken note of. That apart, an
argument has been put forward that the suit schedule property consists
of three floors. However, the suit has been filed only with reference to
the ground and the 1st floor and there is no explanation as to why the
other floors have not been included in the sale deed and the plaint. He
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
would therefore pray that the appeal be allowed and the Judgement and
Decree of the Trial Court be set aside.
20. The learned senior counsel would rely on the following
Judgements in support of his contentions:
(i) 2019-1-L.W-927 – A.Mahimmaidas Vs. P.Parameshwari
and another, has been cited on the side of the appellant in support of
the argument that where passing of consideration has not been proved
the sale agreement should be held to be falsified.
(ii) (2017) 3 SCC 702 – Executive Officer, Arulmigu
Chokkanatha Swamy Koil Trust, Virudhunagar Vs. Chandran and
others, that the Court should not rely on a document which is not
supported by any pleadings. He would contend that Ex.A.5 has not
been relied upon in the plaint and it has all of a sudden marked through
P.W.4.
21. Per contra, Mr.Sudesh Kumar, learned counsel appearing on
behalf of the plaintiff would submit that the passing of consideration
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
has been proved by filing Ex.A.5, agreement of sale in which in very
and categoric terms, the deceased 1st defendant has himself accepted the
receipt of the sum of Rs.10,00,000/- on the date of the execution of the
agreement of the sale and what remained to be paid was a sum of
Rs.1,00,000/-, which was payable at the time of the execution of the
sale deed and this payment has been proved by the evidence of D.W.2.
22. The learned counsel would further submit that the only plea
taken in the written statement of the 3rd defendant was that:-
(a)They are not worldly wise and are illiterate.
(b)The defendants are in possession of the suit
property and except for the suit property they have no
other properties.
(c)There is a collusion between the plaintiff and the
said Balaji Prasad.
23. The learned counsel would further contend that all the
argument that are now been adduced have not been pleaded by the
defendants / appellants before the Trial Court and therefore they cannot
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
be permitted to raise these defenses now at this Nth hour. He would
therefore submit that no exception can be taken to the Judgement and
Decree under appeal and the appeal ought to be dismissed.
Discussion:
24. On a consideration of the evidence both oral and
documentary, the following dates and events emerge:
Dates Events
09.01.2012 A registered sale agreement executed by the 1st defendant
Settu in favour of the plaintiff.
This agreement recites that the total sale consideration is
a sum of Rs.11,00,000/- and that on the date of the
agreement, a sum of Rs.10,00,000/- had been paid by the
plaintiff in favour of the 1st defendant and that the
balance sum of Rs.1,00,000/- would be paid within a
period of 11 months.
24.08.2012 Registered power of attorney executed by S.Settu
appointing one Balaji Prasad as the Power Agent.
This deed refers to the agreement between the plaintiff
and the 1st defendant and also the fact that it was only the
balance amount that was payable by the purchaser to the
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
Dates Events
said Settu.
05.09.2012 This deed executed by the said Settu through his power
agent in favour of the plaintiff, Ramesh Babu. The sale
deed Ex.A.2 also refers to the agreement of sale deed
dated 09.01.2012 entered into between the 1st defendant
and the plaintiff and the sale deed also mentions that the
sum of Rs.10,00,000/- had been paid on the date of the
execution of the agreement of sale.
25. A reading of these documents clearly shows that the original
owner S.Settu who had been arrayed as the 1st defendant in the suit had
entered into the agreement with the plaintiff as early as on 09.01.2012.
The said Settu had died on 12.07.2014 and till the date of his death he
has not questioned the execution of the agreement of sale and nor has
he sought to cancel the power of attorney which was executed on
24.08.2012. He had also not chosen to contest the case during his
lifetime. It was only after his lifetime that the defendants 2 to 4 have
taken up it on themselves to defend the suit.
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
26. Admittedly, the defendants 2 to 4 do not have any direct
knowledge about the transaction that had been entered into between the
plaintiff and the deceased 1st defendant. Therefore, the Court has to
consider the documents that has been filed in respect of the plaintiff's
case. Ex.A.5 agreement of sale which has been executed nearly 8
months prior to the execution of the Ex.A.1, sale deed, indicates that
the deceased 1st defendant had entered into the agreement of sale only
with the intention of selling the property to the plaintiff. This intention
is further reiterated in the power of attorney Ex.A.1 dated 24.08.2012.
Therefore, the manifest intention of the 1st defendant was only to
transfer his interest in the suit property to the plaintiff.
27. The documents, particularly Ex.A.2 would clearly show that
the plaintiff was purchasing the suit property. The annexure contained
therein also highlights the property that has been sold and which is the
subject matter of the suit. The discrepancies in the photo graph and the
plea of the impersonation has not been pleaded in the written statement
and has been raised for the first time. It is needless to state that when
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
allegations of fraud are pleaded the same has to be set out in detail.
Order VI Rule 4 of the Code of Civil Procedure stipulates that where
party is pleaded mis-representation, fraud, breach of trust, willful
default, undue influence etc., the facts of fraud with all its particulars
has to be stated in the pleadings and parties cannot rely upon vague
statements.
28. A perusal of the written statement filed by the 3rd defendant
would indicate only a general denial and general allegations that the
power of attorney followed by the sale deed are all creations of fraud.
However, these acts of fraud have not been elaborated upon.
Therefore, the arguments adduced which is not supported by pleadings
does not advance the case of the defendants / appellants.
29. The Trial Court has in very great detail examined the
evidence both oral and documentary to arrive at a conclusion that the
plaintiff has proved his case.
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
30. I do not find any reason to disagree with the said findings of
the Trial Court and accordingly points for consideration are answered
against the defendants 2 to 4 / appellants and the appeal is dismissed.
However, there shall be no order as to costs.
28.09.2021
Index : Yes/No
Internet : Yes/No
kan
To
The III Additional District Judge,
Vellore at Tirupattur.
https://www.mhc.tn.gov.in/judis/
A.S.No.507 of 2017
P.T. ASHA, J,
kan
A.S.No.507 of 2017
28.09.2021
https://www.mhc.tn.gov.in/judis/
