Lazar vs T.Karthikeyan
2023 Latest Caselaw 3307 Mad

                                                                                     S.A(MD).No.144 of 2023

                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                      DATED : 28.03.2023

                                                             CORAM:

                                  THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE

                                                    S.A.(MD)No.144 of 2023
                                                 and C.M.P(MD)No.2922 of 2023
                     Lazar                               .... Appellant/Appellant/Defendant

                                                                Vs.

                     T.Karthikeyan                         ... Respondent/Respondent/Plaintiff
                     Prayer :          Second Appeal is filed under Section 100 of Code of Civil
                     Procedure, against the judgment and decree dated 12.08.2022 passed in
                     A.S.No.22 of 2021 on the file of the Additional Subordinate Judge,
                     Thanjavur, confirming the judgement and decree dated 21.09.2021 passed
                     in O.S.No.491 of 2008 on the file of the Principal District Munsif,
                     Thanjavur.
                                              For Appellant        : Mr.R.Rajamohan

                                                        JUDGMENT

This Second Appeal has been filed challenging the concurrent

findings of the courts below. The appellant is the defendant in the suit and

the respondent is the plaintiff.

2. The suit in O.S.No.491 of 2008 on the file of the Principal District

Munsif, Thanjavur has been filed for recovery of possession. The

https://www.mhc.tn.gov.in/judis S.A(MD).No.144 of 2023

respondent claimed ownership of the suit schedule property based on a sale

deed dated 03.10.2006 executed in his favour, which has been marked as

Ex.A.3 before the trial court. Before the trial court, the respondent/plaintiff

has filed 18 documents which were marked as Ex.A.1 to Ex.A.18.

Originally the suit schedule property was owned by the appellant/defendant

who has executed a power of attorney dated 21.03.2005 in favour of one

Ramasubbu which has been marked as Ex.A.2. The said Ramasubbu acting

as power agent of the appellant/defendant has executed the sale deed dated

03.10.2006 (Ex.A.3) in favour of the respondent/Plaintiff.

3. Before the trial court, the appellant/defendant has contended that he

never agreed to sell the suit schedule property to the respondent/plaintiff but

he had only borrowed a sum of Rs.80,000/- as loan from the respondent/

plaintiff and only as a security he had executed a power of attorney on

21.03.2005(Ex.A.2) in favour of Ramasubbu and further according to the

appellant/defendant, Ramasubbu has misused the power of attorney by

executing a sale deed dated 03.10.2006(Ex.A.3) in favour of the

respondent/plaintiff. Before the trial court the appellant/defendant had filed

8 documents which were marked as Ex.B.1 to Ex.B.8. Even though the

appellant/defendant contended that the subject transaction is a loan

https://www.mhc.tn.gov.in/judis S.A(MD).No.144 of 2023

transaction, as seen from the oral and documentary evidence, he has failed

to establish that he had availed a loan of Rs.80,000/- from the

respondent/plaintiff and only by way of security for the said loan, he had

executed a power of attorney on 21.03.2005 (Ex.A.2) in favour of

Ramasubbu. He has also not produced any documentary evidence to show

that he has repaid the loan to the respondent/plaintiff pursuant to the

execution of the power of attorney dated 21.03.2005 (Ex.A.2).

4. Though the appellant/defendant has filed house tax receipts dated

06.04.2004, 15.03.2008, 18.04.2017, 15.06.2019 and electricity charges

receipt dated 10.06.2019 all standing in his name, admittedly he has not

filed any documentary evidence to prove his case that he had in fact only

availed a loan from the respondent/plaintiff and never agreed to sell the suit

schedule property to the respondent/plaintiff. On the side of the respondent/

plaintiff, 2 witnesses were examined namely, the respondent/ plaintiff as

well as Ramasubbu, the power agent of the appellant/defendant as per the

power of attorney dated 21.03.2005 (Ex.A.2). As seen from the oral

evidence of both witnesses, they have consistently deposed that the

respondent/plaintiff purchased the suit schedule property from the appellant/

defendant by a valid sale deed dated 03.10.2006 (Ex.A.3) by paying the

https://www.mhc.tn.gov.in/judis S.A(MD).No.144 of 2023

entire sale consideration to the appellant/defendant.

5. On the side of the appellant/defendant, the appellant/defendant

himself examined as witness (D.W.1) and he has reiterated the contents of

the written statement filed by the appellant/defendant in his deposition. The

trial court has decreed the suit in favour of the respondent/plaintiff for

recovery of possession as the appellant/defendant has failed to prove

through oral and documentary evidence that he had only borrowed money

from the respondent/plaintiff but never agreed to sell the suit schedule

property to the respondent/plaintiff.

6. Admittedly, no documentary evidence has been produced by the

appellant/defendant to prove that he had only borrowed money from the

respondent/plaintiff but never agreed to sell the suit schedule property to the

respondent/plaintiff. Having filed documentary evidence, in the form of

power of attorney (Ex.A.2) and sale deed (Ex.A.3) to prove that the

respondent/plaintiff had in fact purchased the suit schedule property from

the appellant/defendant, the respondent/plaintiff has discharged his burden

of proving the suit claim. The onus has been shifted to the appellant/

defendant to disprove the contentions of the respondent/plaintiff. As seen

https://www.mhc.tn.gov.in/judis S.A(MD).No.144 of 2023

from the oral and documentary evidence produced by the appellant/

defendant, he has miserably failed to discharge his burden of disproving the

contentions of the respondent/plaintiff. Only based on oral and documentary

evidence available on record, the trial court has decreed the suit in favour of

the respondent/plaintiff. The lower Appellate court has also rightly

confirmed the findings of the trial court by dismissing the appeal filed by

the appellant/defendant.

7. There are no substantial questions of law involved in the Second

Appeal and all the substantial questions of law raised by the appellant in the

grounds of this Second Appeal are all questions of fact which have been

rightly considered by the courts below by giving due consideration to the

oral and documentary evidence available on record. This Court does not

find any merit in the Second Appeal. Accordingly, the Second Appeal is

dismissed. No costs. Consequently, connected miscellaneous petition is

closed.

28.03.2023 Index : Yes/No Internet: Yes/No CM

https://www.mhc.tn.gov.in/judis S.A(MD).No.144 of 2023

To

1.The Additional Subordinate Judge, Thanjavur,

2.The Principal District Munsif, Thanjavur.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis S.A(MD).No.144 of 2023

ABDUL QUDDHOSE . J.,

CM

S.A.(MD)No.144 of 2023 and C.M.P(MD)No.2922 of 2023

28.03.2023

https://www.mhc.tn.gov.in/judis