Mr.Shajan Lal vs Mr.Ramachandran Pillai

Sathish Ninan, J

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.

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 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 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.

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.

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.

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.

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?

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, 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

Chengannur.

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.

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.

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.

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 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.

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 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 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.

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 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.

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.

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 court warrants no interference.

The appeal fails and is dismissed.