Madras High Court
Panchavarnam vs Kannan on 29 November, 2023
S.A.No.14 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.11.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.14 of 2018
Panchavarnam ...Appellant
Vs.
1.Kannan
2.Nandakumar ...Respondents
PRAYER : Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree of the I Additional Subordinate
Court, Villupuram dated 02.09.2014 in A.S.No.33 of 2011 reversing the
judgment and decree of the Principal District Munsif, Ulundurpet dated
06.01.2011 in O.S.No.92 of 2007.
For Appellant : Mr.M.Subash Babu
For Respondent 1 : M/s.R.Meenal
For Respondent 2 : Not ready in notice
JUDGMENT
The unsuccessful plaintiff is the appellant. She filed a suit for
declaration of title and recovery of possession. The suit was decreed by the
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Trial Court. The first appeal filed by the 1st respondent/1st defendant was
allowed by the First Appellate Court by reversing the findings of the Trial
Court. Hence, the appellant/plaintiff is before this Court by way of this
second appeal.
2. According to the appellant/plaintiff, she purchased the suit property
from Subbaiah Naidu under registered Sale Deed dated 30.11.1998, marked
as Ex.A1. The suit property was let out to the 1st respondent on lease. It was
further case of the appellant that her husband was arrested by police under
prevention of Goondas Act and in that connection, the police people had
taken her to Ulundurpet Sub-Registrar Office, employed coercion and got a
Power Deed in favour of the 2nd respondent in respect of suit property on
16.07.2005. Subsequently, by utilizing the said Power Deed, the 2nd
respondent sold the property to the 1st respondent on 28.07.2005. The
appellant issued a lawyer notice on 06.3.2006, narrating the coercion
employed on her and requested the respondents to deliver possession of the
suit property. The 1st respondent having received notice failed to give any
reply and notice sent to the 2nd respondent was returned. In these
circumstances, the appellant/plaintiff filed the suit on 27.03.2007.
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3. The 2nd respondent remained ex-parte and the 1st respondent filed his
written statement, resisted the suit by denying the averment of the appellant
as if the Power Deed in favour of the 2nd respondent was obtained by
employing coercion. It was further averred by the 1st respondent that when
husband of the appellant was in jail under preventive detention, he met him in
jail and as per his instructions, he met the 2nd respondent in order to take out
the husband of the appellant on bail. The 2nd respondent informed him about
the General Power of Attorney executed by the appellant to facilitate him to
sell the suit property to meet out the Court expenses. In these circumstances,
he purchased the suit property from the 2nd respondent, who was power agent
of the appellant by paying a consideration of Rs.1,15,000/-. He also claimed
that subsequent to purchase, he made an improvement in the suit property by
spending a sum of Rs.25,000/- and he had been in possession and enjoyment
of the suit property.
4. Before the Trial Court, the appellant was examined as P.W.1 and two
other witnesses were examined on her behalf as P.W.2 and P.W.3. On behalf
of the appellant, 5 documents were marked as Ex.A1 to Ex.A5. The 1st
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respondent was examined as D.W.1, the Attestor of Sale Deed in his favour
was examined as D.W.2. The scribe of Sale Deed was examined as D.W.3.
On behalf of the 1st respondent, 3 documents were marked as Ex.B1 to Ex.B3.
5. The Trial Court, on appreciation of oral and documentary evidence
available on record, came to the conclusion that the 1st respondent failed to
prove due execution of Power Deed in favour of the 2nd respondent.
Therefore, the Trial Court held that the appellant was entitled to declaration
of title and possession as prayed for. Aggrieved by the same, the 1st
respondent preferred an appeal in A.S.No.33 of 2011 on the file of I
Additional Subordinate Court, Villupuram.
6. The First Appellate Court, on appreciation of oral and documentary
evidence available on record, came to the conclusion that the appellant failed
to prove the employment of coercion as pleaded by her and therefore,
reversed the finding of the Trial Court and allowed the appeal. Aggrieved by
the same, the appellant is before this Court.
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7. The learned counsel appearing for the appellant submitted that the 1st
respondent failed to prove due execution of Power Deed by the appellant in
favour of the 2nd respondent and therefore, the First Appellate Court ought not
to have reversed the well considered findings of the Trial Court. The
appellant/plaintiff came to the Court with a specific plea that General Power
of Attorney executed by her in favour of the 2nd respondent was obtained by
him under coercion. Therefore, there is no dispute with regard to the
execution of General Power of Attorney by the appellant in favour of the 2nd
respondent. When the appellant pleads employment of coercion, it is for her
to prove the same by leading acceptable evidence. The Power Deed in favour
of the 2nd respondent was executed and registered on 16.07.2005, on the file
of Ulundurpet Sub Registry. Further, it is specific case of the appellant that
Power Deed was obtained by police officials by employing coercion. In that
case immediately after alleged coercion ceases to exist, the appellant should
have issued notice to the said power agent, namely the 2nd respondent,
cancelling the Power Deed. Atleast, the appellant should have made a
complaint to the higher police official regarding the coercion employed by
police officers on 16.07.2005. However, the appellant for the reason best
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known to her kept quite till March 2006 for nearly eight months and
thereafter, issued a pre-suit notice raising the plea of coercion. The appellant
failed to explain the delay of eight months in issuing pre-suit notice raising
the plea of coercion.
8. Whenever a person enters into a contract and his consent to the
contract was obtained by coercion, immediately after the employment of
coercion ceases to exist, it is incumbent on him to issue notice to other party
and repudiate the contract. In the case on hand, the appellant failed to issue
any notice cancelling the Power Deed immediately after alleged coercion
ceases to exist. She also failed to give any complaint regarding the
employment of coercion to the higher police officials. In such circumstances,
the First Appellate Court rightly came to the conclusion that the appellant
failed to prove the plea of coercion and consequently, dismissed the suit. The
said factual finding of the First Appellate Court is not vitiated by perversity.
In such circumstances, I do not find any substantial question of law to
interfere with the finding of the First Appellate Court.
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9. Accordingly, the second appeal stands dismissed
a) by affirming the judgment and decree dated 02.09.2014 made in
A.S.No.33 of 2011 on the file of the I Additional Subordinate Court,
Villupuram, reversing the judgment and decree dated 06.01.2011 made in
O.S.No.92 of 2007 on the file of the Principal District Munsif, Ulundurpet;
and
b) In the above facts and circumstances of the case, there will be no
order as to costs. Consequently, connected miscellaneous petition is closed.
29.11.2023
Index : Yes/No
Internet : Yes/No
nti
To
1. The I Additional Subordinate Court, Villupuram.
2. The Principal District Munsif, Ulundurpet.
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S.SOUNTHAR, J.
nti
29.11.2023
https://www.mhc.tn.gov.in/judis
