Madras High Court
Kannan Raja vs )Baskara Doss on 6 July, 2022
A.S(MD)Nos.292, 293 & 294/2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.07.2022
CORAM :
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
A.S(MD)Nos.292, 293 and 294 of 2008
and
M.P(MD)Nos.1, 1 and 1 of 2008
A.S(MD)No.292 of 2008:-
Kannan Raja ... Appellant
vs.
1)Baskara Doss
2)Ponnusamy
3)N.A.Pethu Raja ... Respondents
Appeal Suit filed under Section 96 of the Code of Civil
Procedure, against the judgment and decree dated 04.06.2008 made
in O.S.No.55 of 2007 on the file of the Principal District Court, Theni.
For Appellant : Mr.M.Vallinayagam, Senior Counsel, for
Mr.D.Nallathambi
For R1 : Mr.V.Janakiramalu
For R3 : Mr.P.T.S.Narendravasan
A.S(MD)No.293 of 2008:-
Kannan Raja ... Appellant
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A.S(MD)Nos.292, 293 & 294/2008
vs.
1)Baskara Doss
2)N.A.Pethu Raja ... Respondents
Appeal Suit filed under Section 96 of the Code of Civil
Procedure, against the judgment and decree dated 04.06.2008 made
in O.S.No.56 of 2007 on the file of the Principal District Court, Theni.
For Appellant : Mr.M.Vallinayagam, Senior Counsel, for
Mr.D.Nallathambi
For R1 : Mr.V.Janakiramalu
For R2 : Mr.P.T.S.Narendravasan
A.S(MD)No.294 of 2008:-
Kannan Raja ... Appellant
vs.
1)N.A.Pethu Raja
2)Baskara Doss ... Respondents
Appeal Suit filed under Section 96 of the Code of Civil
Procedure, against the judgment and decree dated 04.06.2008 made
in O.S.No.57 of 2007 on the file of the Principal District Court, Theni.
For Appellant : Mr.M.Vallinayagam, Senior Counsel, for
Mr.D.Nallathambi
For R1 : Mr.V.Janakiramalu
For R2 : Mr.P.T.S.Narendravasan
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A.S(MD)Nos.292, 293 & 294/2008
COMMON JUDGMENT
O.S.No.57/2007 was filed by one Kannan Raja as plaintiff
for declaration and permanent injunction in respect of the suit
property and to cancel the document dated 05.01.2006 created by
the defendants. O.S.Nos.55 and 56/2007 were filed by one Baskara
Doss as plaintiff for a permanent injunction in respect of the
respective suit properties. After trial, the trial Court dismissed
O.S.No.57/2007 and decreed the suits in O.S.Nos.55 and 56/2007
vide a common judgment and decree dated 04.06.2008.
Challenging the same, Kannan Raja/plaintiff in O.S.No.57/2007 and
1st defendant in O.S.Nos.55 and 56/2007, as appellant has filed
these three appeals.
2. Brief facts of the plaint in O.S.No.57/2007 are as follows:-
The 1st defendant herein/Pethuraja is the brother of the plaintiff
Kannan Raja who are the sons of one Alagiri Raja and Devaki
Ammal. Along with the the plaintiff and the 1st defendant, they have
another son by name, Pappuraja and two daughters namely,
Pathmavathi Ammal and Ramathilagam. There was a partition of
family properties on 29.03.1970. While so, on 17.06.1977, father of
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the plaintiff Alagiri Raja died. Thereafter, the mother and sisters of
the plaintiff executed a release deed dated 11.11.1977 in respect of
the suit properties, as such, the plaintiff and his brother Pappuraja
became the owners of the suit properties and enjoyed the suit
properties jointly. Since both of them had to go outstation
frequently for the purpose of work, they jointly executed a general
power of attorney dated 16.04.1992 in favour of their brother/1st
defendant/Pethuraja, to lease out the nanja land, to let the house
property for rent and for mortgage and sale of the suit properties, if
necessary. While so, there was a loss in their business and all the
three persons entered into an agreement dated 24.11.1994
regarding settlement of loans. While so, Pappuraja died on
26.06.1995. Thereafter, there was a dispute between the heirs of
Pappuraja and the plaintiff and 1st defendant. They entered into an
agreement dated 27.11.1997, by which, the power of attorney given
to the 1st defendant was cancelled. While so, the 1st defendant in
collusion with the 2nd defendant created a forged sale deed dated
05.01.2006, as if he sold the suit property to the 2nd defendant,
based on which, the 2nd defendant is disturbing the peaceful
possession and enjoyment of the plaintiff. Hence, the suit.
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3. Brief facts of the written statement in O.S.No.57/2007
are as follows:-
The 1st defendant filed a written statement stating that only
based on the power of attorney dated 16.04.1992, he sold the suit
property to the 2nd defendant and handed over the sale amount to
the plaintiff and handed over the possession of the suit property to
the 2nd defendant. There was no cancellation of power of attorney as
alleged. The plaintiff is not in possession of the suit property.
Hence, the suit is liable to be dismissed. The 2nd defendant also filed
a written statement, reiterating the above contentions raised by the
1st defendant. Apart from that, he averred that after the purchase of
the suit property, he took steps for mutation of revenue records in
his name. The 2nd defendant filed O.S.No.91/2006 against the
plaintiff before the Principal District Court, Srivilliputhur, along with
I.A.No.241/2006 and the said I.A was allowed. Hence, the present
suit has to be dismissed.
4. Based on the above pleadings, the trial Court framed the
following issues:-
1)Whether the suit property is in possession of the plaintiff?
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2)Whether the power of attorney executed in favour of the 1st
defendant is valid or not?
3)whether the relief of declaration and permanent injunction
can be granted to the plaintiff?
4)Whether the sale deed dated 05.01.2006 is not valid and
liable to be set aside?
5)To what relief, the plaintiff is entitled to?
5. Brief facts of the plaint in O.S.No.55/2007 are as follows:-
The plaintiff herein/Baskara Doss would state that the suit
property herein was purchased by him as per the sale deed dated
05.01.2006 executed by the 3rd defendant Pethuraja as power agent
of the 1st defendant/Kannan Raja and his brother Pappuraja. Though
the 1st defendant sent an advocate notice to the plaintiff herein,
since the 3rd defendant informed him that he will take care of it, the
plaintiff did not send any reply to the said notice. However, on
18.08.2006, the defendants 1 and 2 attempted to trespass into the
suit property which was prevented by the plaintiff. Hence, the suit.
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6. Brief averments in the written statement in O.S.No.
55/2007 are as follows:-
The 1st defendant filed a written statement stating that the sale
deed dated 05.01.2006 is not valid as per law as it is a fabricated
document by the plaintiff and the 3rd defendant. As per the power of
attorney dated 16.04.1992, the 3rd defendant had no power to sell
the suit property and the said power of attorney itself was impliedly
cancelled in 1997 under Ex.A7. Pursuant to the forged sale, the
plaintiff disturbed the possession of the 1st defendant and therefore,
the 1st defendant filed O.S.No.93/06 before the Sub Court,
Srivilliputhur and it is pending. The alleged trespass on 18.08.2006
by the defendants 1 and 2 is denied as false. The 3 rd defendant also
filed a written statement, stating that he sold the suit property to
the plaintiff herein as power agent of the 1st defendant and his
brother Pappuraja and on the date of said sale, the power of
attorney was in force. Hence, the suit is liable to be dismissed.
7. Based on the above pleadings, the trial Court framed the
following issues:-
1)Whether the sale deed dated 05.01.2006 executed by the 3rd
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defendant as power agent of the 1st defendant is valid or not and
whether it will bind the 1st defendant?
2)Whether the plaintiff is entitled to the relief of permanent
injunction?
3)To what relief, the plaintiff is entitled to?
8. Brief facts of the plaint in O.S.No.56/2007 are as follows:-
The plaintiff herein/Baskara Doss would state that the suit
property herein was purchased by him as per the sale deed dated
05.01.2006 executed by the 2nd defendant Pethuraja as power agent
of the 1st defendant/Kannan Raja and his brother Pappuraja.
Pursuant to the said purchase, the plaintiff is in possession of the
suit property. While so, on 21.08.2006, the 1st defendant and his
men attempted to trespass into the suit property which was
prevented by the plaintiff. Hence, the suit.
9. Brief averments in the written statement in O.S.No.
56/2007 are as follows:-
The 1st defendant filed a written statement stating that the sale
deed dated 05.01.2006 is not valid as per law as it is a fabricated
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A.S(MD)Nos.292, 293 & 294/2008
document by the plaintiff and the 2nd defendant. As per the power of
attorney dated 16.04.1992, the 2nd defendant had no power to sell
the suit property and the said power of attorney was cancelled even
on 27.11.1997 itself. The alleged trespass on 21.08.2006 by the 1st
defendant is denied as false. Hence, the suit is liable to be
dismissed.
10. Based on the above pleadings, the trial Court framed the
following issues:-
1)Whether the sale deed dated 05.01.2006 executed by the 2 nd
defendant as power agent of the 1st defendant is valid or not?
2)Whether the plaintiff is entitled to the relief of permanent
injunction?
3)To what relief, the plaintiff is entitled to?
11. In order to substantiate the case, on the side of the
plaintiff, the plaintiff Kannan Raja was examined himself as PW1 and
30 documents were marked as Exs.A1 and A30. On the side of the
defendants, two witnesses were examined as DW1 and DW2 and 12
documents were marked as Exs.B1 to B12.
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12. The trial Court, considering the pleadings, oral and
documentary evidence, dismissed the suit in O.S.No.57/2007 and
decreed the suits in O.S.Nos.55 and 56/2007 vide a common
judgment and decrees dated 04.06.2008. Challenging the common
judgment and decrees, the plaintiff Kannan Raja as appellant has
filed these three appeals.
13. The learned Senior Counsel for the appellant in all these
appeals would submit that the suit properties in all the three suits
originally belonged to the appellant's father Alagiri Raja and all the
joint family properties were subsequently divided between the
appellant's brothers and they were running a business jointly and
some of the properties derived from their maternal aunt. The
learned Senior Counsel would further submit that the appellant and
his brother Pappuraja executed a power of attorney in favour of their
brother Pethuraja, who is the defendant Nos.1, 2 and 3 in O.S.Nos.
57, 56 and 55/2007 respectively, and the same was subsequently
cancelled under Ex.A5 and Ex.A7 agreement dated 24.11.1994 and
27.11.1997 respectively. After the cancellation of the said power of
attorney, the said Pethuraja had no power or authority to sell the
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suit properties and therefore, the sale deeds dated 05.01.2006 in all
the suits are not valid and binding on the appellant herein. It is
further submitted that Pappuraja died on 26.06.1995, prior to the
sale and therefore, the power of attorney in favour of Pethuraja
stood automatically terminated and consequently, the sale deeds
dated 05.01.2006 executed by the power agent are null and void.
He would further submit that the alleged power of attorney does not
contain any description of properties and therefore, no right can be
conferred on the power agent to sell the suit properties for and on
behalf of the appellant. The power agent Pethuraja was not
empowered under the power of attorney deed to receive the sale
consideration and the sale deeds dated 05.01.2006 are not genuine
and the same is vitiated by fraud and collusion.
14. The learned Senior Counsel would further submit that the
alleged power of attorney deed was jointly executed by the appellant
and his deceased brother Pappuraja in respect of their joint family
property without any specification and the power agent Pethuraja is
not entitled to dispose of the individual property of the appellant on
the strength of the said power of attorney, which does not confer
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any right on the power agent to dispose of the individual property of
the appellant. Further, the power of attorney deed has not given
absolute power and it is only a qualified power empowering the
power agent to sell the properties in the event of certain contingency
and the power agent has not made out any contingency either in the
pleadings or in the evidence and therefore, the alleged sale deeds
dated 05.01.2006 are liable to be set aside, as the same were
executed by fraud and collusion.
15. The learned Senior Counsel for the appellant would
further submit that the alleged power of attorney was executed on
16.04.1992 and the sale deeds were executed by the power agent
Pethuraja on 05.01.2006. In the meantime, there were so many
developments in the family resulting in the agreement between the
appellant as well as the heirs of the deceased brother Pappuraja over
the joint family properties and the alleged power of attorney deed
will have no effect in view of the implied revocation of power of
attorney in 1997. The alleged sale transaction between the power
agent and the plaintiff Baskara Doss is not bonafide one and it was
made by the power agent to deprive the appellant of his right, title
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and interest over the suit properties. The said Baskara Doss is only
a name lender and he was set up by the power agent Pethuraja to
defeat the right of the appellant over the suit properties. There is a
material contradiction between the evidence of DW1 and DW2 over
the execution of the sale deed and therefore, the evidence of the
defendants cannot be relied upon.
16. The learned counsel for the contesting
respondent/Baskara Doss who is the purchaser and plaintiff in
O.S.Nos.55 and 56/2007 would submit that the appellant and his
brother Pappuraja executed a power of attorney in favour of their
brother/Pethuraja on 16.04.1992 in respect of all the properties
stand in their names. Though one of the principals died, the power
of attorney was not cancelled and was in force. If at all any
misunderstanding between the principals, they could have cancelled
the power of attorney, but the appellant never cancelled the power
of attorney. The appellant alleged to have cancelled the said power
of attorney only on 08.03.2006 after the execution of the sale deeds
on 05.01.2006 and therefore, the cancellation of the power of
attorney after the execution of the sale deeds is not valid and bind
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the purchaser/Baskara Doss for a valuable consideration without any
notice. Though the appellant has stated that he and his brother
executed the power of attorney only in respect of all the joint family
properties and joint family business and they have not executed the
power of attorney for their individual properties, the power of
attorney deed shows otherwise and the appellant himself admitted
that since he himself and his deceased brother could not manage
their properties and they used to go outstation frequently, in order
to manage and maintain their properties, they executed the power of
attorney in favour of one of their brothers namely, Pethuraja.
Though the appellant stated that subsequently the said power of
attorney was cancelled, as already stated, the said cancellation was
only on 08.03.2006, after the execution of the sale deeds dated
05.01.2006. Thus, the trial Court considering the above, rightly
dismissed the suit in O.S.No.57/2007 and decreed the suits in
O.S.Nos.55 and 56/2007, which does not warrant interference by
this Court.
17. Heard both sides and perused the records.
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18. It is not in dispute that originally the suit properties
belonged to the father of the appellant Alagiri Raja and
subsequently, his sons including the appellant, divided all the landed
properties and they jointly run a business which means, except the
joint business, other properties have been divided. Even they
derived the suit properties which were obtained by them through a
settlement deed from his maternal grandmother. However, the
ownership of the suit properties is not in dispute. According to the
appellant, while running the joint business, they borrowed money
from various Nationalised Banks and financial institutions.
Therefore, in order to settle the financial crisis, the appellant and
one of his deceased brother Pappuraja executed the power of
attorney in favour of Pethuraja regarding the joint family business
alone. Other properties have been divided between the brothers as
separate properties of the brothers. Therefore, the power of
attorney does not cover the separate properties.
19. It is the case of the appellant that he and his brother
executed the power of attorney to maintain the joint business. They
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entered into the agreements under Exs.A5 and A7 dated 24.11.1994
and 27.11.1997 respectively, which clearly implies that they
cancelled the power of attorney and power of attorney had not been
acted upon in 1997 itself. Therefore, subsequently, the power agent
Pethuraja has no right to sell the individual property stands in the
name of the appellant on 05.01.2006. When the power agent was
acting against the interest of the appellant, immediately, the
appellant cancelled the power deed on 08.03.2006.
20. Admittedly, the appellant and his brother gave a power of
attorney in favour of Pethuraja and it is a general power of attorney.
Though the appellant stated that it is not executed for dealing the
separate property of the appellant, but on a reading of the recital in
the power of attorney, it is not stated that the power of attorney was
executed only to maintain the joint business. Admittedly, in this
case, all the three brothers entered into a partition and they
separated the entire properties. Therefore, the contention of the
appellant is not acceptable. Further, the power of attorney executed
on 16.04.1992 was cancelled on 08.03.2006, whereas, the power
agent Pethuraja sold the suit properties on 05.01.2006. The
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cancellation of the power of attorney has been done after 14 years.
If at all the appellant and his brother were not in good terms, they
could have very well cancelled the power of attorney before
05.01.2006. The appellant came to know that the power agent
Pethuraja sold the suit properties to the plaintiff/Baskara Doss and
the said purchaser Baskara Doss has taken possession of the suit
properties. Knowing fully well of the above facts, the appellant
cancelled the power of attorney only on 08.03.2006 and
subsequently filed the suit in the year 2007 for declaration and
permanent injunction.
21. When the appellant and his brother Pappuraja themselves
admitted that they were moving frequently for outstation and
therefore, they executed the power of attorney giving power to
Pethuraja to manage their properties, it is clear that the appellant
was not in possession of the suit properties, whereas the power
agent/Pethuraja was in possession of the properties and in terms of
the power of attorney, he executed the sale deeds dated 05.01.2006
in favour of the plaintiff/Baskara Doss and then the said Baskara
Doss had taken possession of the suit properties. The appellant
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could not establish that before executing the sale deeds, the power
of attorney was cancelled, as such, the said sale cannot be held to
be invalid. Therefore, the trial Court dismissed the suit in O.S.No.
57/2007 filed by the appellant for declaration and permanent
injunction. Since the sale acted upon and the power of attorney was
cancelled only subsequently three months later, the trial Court
refused to declare the sale deeds dated 05.01.2006 as null and void.
22. In these appeals, though the appellant stated that the
power of attorney was cancelled in 1997 even prior to the execution
of the sale deeds dated 05.01.2006, under Exs.A5 and A7
agreement, which is an implied cancellation, but however, he has
not established that the power of attorney was cancelled in the
manner known to law before the execution of the sale deeds dated
05.01.2006 and therefore, it is the burden of the appellant to
establish his case and he cannot take advantage of the loopholes left
by the defendants. Once the appellant filed the suit for declaration
and permanent injunction and for cancellation of sale deed dated
05.01.2006, it is his duty to prove his case that he has got right in
the suit properties and he is in possession of the suit properties.
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Whereas, in this case, admittedly, he and his brother Pappuraja
executed the power of attorney and he failed to prove that the
power of attorney was executed only with reference to the joint
business alone. A reading of the power of attorney clearly shows
that power has been given to deal with both individual property as
well as common property. Even the evidence of DW2-one of the
witnesses to the sale deed Ex.B4 dated 05.01.2006, clearly shows
that he has clearly narrated that the power agent Pethuraja sold the
properties for and on behalf of the appellant for a valuable
consideration and handed over possession of the suit properties.
Therefore, from the evidence of DW1 and DW2, it is established that
the sale deeds were executed on 05.01.2006.
23. Though one of the contentions of the appellant is that one
of the principals namely, Pappuraja died after the execution of the
power of attorney and therefore, the power of attorney got
terminated automatically on the date of death of Pappuraja, it is to
be noted that the power of attorney would get lapsed and
terminated automatically on the date of death as against the
deceased principal alone and as against the alive principal namely,
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the appellant, it is still in force and it would not get terminated
totally against the appellant also.
24. Therefore, on a reading of the plaint, oral and the
documentary evidence, the appellant failed to establish his case and
the trial Court has come to the conclusion that since the power of
attorney was admitted by the appellant and the power agent
Pethuraja sold the suit properties based on the power of attorney to
the plaintiff/Baskara Doss and the sale deeds dated 05.01.2006 also
got established by the purchaser/Baskara Doss, by examining
himself as DW1 and also a witness to the sale deeds as DW2. The
appellant has not proved that before execution of the sale deeds
dated 05.01.2006, the power of attorney was cancelled. Therefore,
the trial Court has rightly come to the conclusion that the appellant
as a plaintiff, failed to establish his case, whereas, the respondents
established that during the power of attorney was in force, the sale
deeds were executed and pursuant to the said sale, the purchaser
Baskara Doss is in possession of the suit properties and dismissed
O.S.No.57/2007. There is no perversity in the said judgment
warranting interference by this Court. Accordingly, A.S(MD)No.294
of 2008 is liable to be dismissed.
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25. As far as A.S(MD)Nos.292 and 293 of 2008 are
concerned, the plaintiff/Baskara Doss claimed that he purchased the
suit properties herein, from the power agent/Pethuraja, of the
appellant and his brother Pappuraja, by sale deeds dated 05.01.2006
and was in possession of the respective suit properties. While so,
the appellant and his men attempted to trespass into the respective
suit properties. Hence, the purchaser Baskara Doss filed the above
suits for permanent injunction against the appellant. The trial Court
found that since the power of attorney was admitted by the
appellant and the power agent Pethuraja sold the properties based
on the said power of attorney to the plaintiff/Baskara Doss and the
sale deeds dated 05.01.2006 also got established by the
purchaser/Baskara Doss by examining himself as DW1 and also a
witness to the sale deeds as DW2 and the appellant has not proved
that before the execution of the sale deeds dated 05.01.2006, the
power of attorney was cancelled. Therefore, the trial Court has
rightly come to the conclusion that the appellant herein, as a plaintiff
failed to establish his case, whereas, the respondents established
that during the power of attorney was in force, the sale deeds were
executed and pursuant to the said sale, the purchaser Baskara Doss
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is in possession of the respective suit properties and hence decreed
the suits in O.S.Nos.55 and 56/2007.
26. The appellate Court being a fact finding Court, it has to
re-appreciate the entire pleadings, oral and documentary evidence.
On a careful perusal of the entire pleadings, oral and documentary
evidence and also the common judgment and decrees of the trial
Court in O.S.Nos.55, 56 and 57/2007 dated 04.06.2008, this Court
does not find any perversity or good reason to interfere with the said
common judgment.
27. In view of the above, all the three Appeal Suits are
dismissed. No costs. Consequently, connected miscellaneous
petitions are closed.
bala 06.07.2022
Index : Yes / No
Internet : Yes
To
The Principal District Judge,
Theni.
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A.S(MD)Nos.292, 293 & 294/2008
P.VELMURUGAN, J.
bala
COMMON JUDGMENT MADE IN
A.S(MD)Nos.292, 293 and 294 of 2008
DATED : 06.07.2022
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