R. Selvaraj vs V.P. Periasamy

M. Duraiswamy, J.—The above Appeal arises against the judgment and decree in O.S. No. 94 of 2004 on the file of First Additional District Court, Erode. The Plaintiff is the Appellant and the Respondent was the Defendant in the Suit.

The Plaintiff filed the Suit in O.S. No. 94 of 2004 on the file of First Additional District Court, Erode for delivery of possession.

The brief, case of the Plaintiff in the Suit is as follows:

(i) According to the Plaintiff, the suit properties absolutely belongs to him and he was in possession and enjoyment of the suit properties. Originally, the suit properties belonged to the Defendant by virtue of two Sale Deeds dated 17.5.1994 and 12.2.1996. Since the Defendant intended to sell the suit properties, he appointed one P. Sundaram as his Power Agent under a registered Power of Attorney Deed dated 31.3.199. The Plaintiff intended to purchase the suit properties and approached the Defendant. The Defendant advised the Plaintiff to have negotiations with his Power Agent. On 8.9.1998, the Power Agent of the Defendant and the Plaintiff entered into a registered Agreement of Sale on 31.1.2001.

(ii) According to the Plaintiff, the Power Agent-Sundaram to the knowledge of the Defendant, executed a Sale Deed in favour of the Plaintiff and placed the Plaintiff in possession of the same. Since the date of purchase, the Plaintiff is in possession and enjoyment of the suit properties in his own right and also paying the land revenue. The Plaintiff''s name was also included in the Patta on 28.2.2003.

(iii) According to the Plaintiff, the suit properties are agricultural lands with a superstructure used as a go-down for storing agricultural implements and produce.

(iv) According to the Plaintiff, since he is residing at Paramathi, he would go to the suit properties. At times. The Defendant is residing very near to the suit properties. In or about the last week of September 2003, when the Plaintiff went to the suit properties, he found that the Defendant had unlawfully trespassed into the building in the suit properties making it appear that he is doing trade in coconut. The Plaintiff questioned the Defendant about his illegal act. But the Defendant was evasive. The Plaintiff requested the Defendant to vacate the premises but, he refused. There was mediation in the presence of elderly members of that locality. But the Defendant refused to heed to their advise.

(v) According to the Plaintiff, the Defendant lodged Caveats against the Plaintiff in Sub-Court Erode and District Munsif Court Kodumudi on 23.10.2003. The Defendant also filed subsequent Caveats in the Sub-Court on 22.1.2004. The Defendant have no right over the suit properties. He is only a trespasser. In these circumstances, the Plaintiff filed the Suit.

The brief case of the Defendant is as follows:

(i) According to the Defendant, it is false to state that he intended to sell the suit properties and appointed one P. Sundaram as his Power Agent by virtue of registered Power of Attorney Deed dated 31.8.1998. The Defendant disputed and denied the Plaint averments.

(ii) According to the Defendant, the suit property is situated at Kodumudi Kangeyam Muthur road and in a busy place called Othakadai. The Defendant purchased the vacant site for the purpose of putting up an industry. The Defendant started coconut business under the name and style of ''Vinayaka Coconut'', ''Arand Trading Company'' and ''V.R. Periyasamy Coconuts''. The Defendant constructed terraced building, godown and residential quarters for the servants immediately after the purchase in the year 1996. The Defendant had also put up compound walls on the eastern and western sides of the land to the height of 10'' and 5''. The Defendant also had dug a well and obtained electricity service connection for the building. The Defendant also obtained phone connection.

(iii) According to the Defendant, he never intended to sell the suit properties to the Plaintiff. There is no necessity for him to sell the properties. The Defendant, borrowed a sum of Rs. 2,00,000/- from the Plaintiff in the last week of August 1998 and the Plaintiff wanted the Defendant to sign in blank promissory notes. Accordingly, the Defendant signed in the blank promissory notes as a security. The Plaintiff insisted the Defendant to execute a Power of Attorney. The Defendant has executed the Power of Attorney Deed in favour of the Plaintiff''s brother-in-law namely, P. Sundaram. The Power of Attorney was obtained only as a security for the amount borrowed by the Defendant. The Defendant was regularly paying the interest. The Defendant also delivered the original Sale Deed on the date of execution of the Power of Attorney. The said document was never executed with an intention to sell the suit properties. The Power of attorney, P. Sundaram had no right to execute any Sale Deed. The Defendant has not even seen the Power of Attorney holder Sundaram. The value of the suit properties was mentioned as Rs. 1,25,000/- in the Sale Deed. But the value of the suit properties as per the guideline value fixed by the Government was Rs. 6,28,300/-. Therefore, the document was not returned to the Plaintiff and the document was registered only on 14.8.2002. The market value of the property including the superstructure on the date of sale was not less than Rs. 12,00,000/-.

(iv) According to the Defendant, even assuming without admitting that the Power of Attorney holder had a right to execute the Sale Deed on the basis of the Power of Attorney, he has not paid any amount to the Defendant on the alleged date of agreement and also on the alleged date of sale. The Power of Attorney Deed and the sale are not valid and binding upon the Defendant. In these circumstances, the Defendant prayed for dismissal of the Suit.

Before the Trial Court, on the side the Plaintiff, 2 witnesses were examined and 24 documents Exs. A-1 to A-24 were marked and on the side of the Defendant also, 2 witnesses were examined, and 18 documents Exs. B-1 to B-18 were marked.

The Trial Court after taking into consideration, the oral and documentary evidences available on record, dismissed the Suit.

Aggrieved over the judgment and decree of the Trial Court, the Plaintiff has filed the above Appeal.

Heard Mr. A.R.L. Sunderasan, learned Senior Counsel appearing for the Appellant and Mr. A.K. Kumarasamy learned Counsel appearing for the Respondent.

On a careful consideration of the materials available on record and on the submissions made by the respective Counsels appearing on behalf of the Appellants and the Respondents, the following points, arise for consideration in this Appeal:

(i) Whether the suit properties belongs to the Plaintiff?

(ii) Whether the Defendant trespassed into the suit property?

(iii) Whether Ex. A-3, Power of Attorney Deed dated 31.8.1998? and Ex. A-5 Sale Deed dated 31.1.2001 are true and valid and'' binding on the Defendant?

(iv) Whether the Plaintiff is entitled for a decree for delivery of possession?

It is not in dispute that the Respondent/Defendant was the owner of the suit properties under Exs. A-1 & A-2, Sale Deeds dated 17.5.1994 and 12.2.1996 respectively. The Appellant/Plaintiff contended that the Respondent/Defendant executed Ex. A-3, registered Power of Attorney Deed dated 31.8.1998 in favour of one P. Sundaram appointing him as his Power Agent. The Appellant/Plaintiff contended that pursuant to Ex. A-3, Power of Attorney, the Plaintiff and the Power Agent, P. Sundaram entered into Ex. A-4, Sale Agreement dated 8.4.1998 in respect of the suit properties. Thereafter, Ex. A-5, Sale Deed dated 31.1.2001 was executed in favour of the Appellant/Plaintiff by the said Power Agent, P. Sundaram. The Appellant/Plaintiff, under Ex. A6 proceedings dated 28.2.2003 got his name included in the Patta in respect of the suit properties.

According to the Appellant/Plaintiff, since he is, residing at Paramathi, he could not go to the suit properties frequently. The Plaintiff contended that in the last week of September 2003, when he went to the suit properties, he found that the Respondent/Defendant had unlawfully trespassed into the building in the suit properties making it appear that he is doing trade in coconut. In Ex. A-5, Sale Deed it has been recited that the Appellant/Plaintiff was put in possession of the suit property on the date of execution of the Sale Deed by the Power Agent of the Defendant namely, P. Sundaram.

According to the Respondent/Defendant, Appellant/Plaintiff is a Kanduvattikarar from whom he borrowed a sum of Rs. 2,00,000/- in the last week of August 1398 and he was asked to sign blank Promissory Notes. As a security, the Appellant/Plaintiff insisted the Respondent/Defendant to execute the Power of Attorney. Accordingly, Respondent/Defendant, executed Power of Attorney Deed in favour of the Appellant/Plaintiff''s brother-in-law namely, P. Sundaram. The Respondent/Defendant, also delivered the original Sale Deed on the date of execution of the Power of Attorney Deed.

According to the Respondent/Defendant, the Power of Attorney Deed was never executed with an intention to sell the suit property. The Respondent/Defendant, in his Written Statement stated that the Power Agent namely, P. Sundaram has got no right to execute any Sale Deed and he has not even seen the Powder of Attorney holder P. Sundaram. Therefore, the alleged agreement, executed by him in favour of the Appellant/Plaintiff is not valid and binding upon the Respondent/Defendant. According to the Respondent/Defendant, the Power of Attorney holder is a total stranger to him. The Sub-Registrar of Kodumudi Sub-Registration Office was examined as D.W. 2. D.W. 2 spoke about the registration of Ex. A-5, Sale Deed.

The learned Senior Counsel appearing for the Appellant submitted that the Trial Court ought not have dismissed the suit for recovery of possession filed by the Appellant/Plaintiff, when there was clenching evidence to establish the case of the Appellant/Plaintiff. The learned Senior Counsel also contended that the Appellant/Plaintiff was handed over the parent documents of the suit properties and also the original Power of Attorney Deed which would probabilize the case of the Appellant; that the Trial Court ought not have held that the Suit for possession is not maintainable without having the title declared when there is no real dispute regarding title. In support of his submissions, learned Senior Counsel appearing for the Appellant, relied upon the following judgments

(i) Vimal Chand Ghevarchand Jain and Others Vs. Ramakant Eknath Jajoo, , wherein, the Apex Court held that right of possession over a property is a fact of title. As soon as a Deed of Sale is registered the title passes to the vendee. The vendor, in terms of the stipulations made in the Deed of Sale, is bound to deliver possession of he property old. If the purchaser is able to prove that the Deed of Sale was duly executed and it was neither a sham, transaction nor represented a transaction of different character, Suit for recovery of possession is maintainable.

(ii) Veerasekhara Varmarayar Vs. Amirthavalliammal and Others, wherein the Division Bench of this Court held that the law does not compel the Plaintiff to file a Rejoinder challenging the allegations made in the Written Statement. The failure to file a Rejoinder cannot be treated as an admission of the plea in the Written Statement.

(iii) Latif Estate Line India Ltd. Vs. Mrs. Hadeeja Ammal, The Inspector General of Registration and The Sub Registrar Ambattur, wherein the Full Bench of this court held as follows:

After giving our anxious consideration on the questions raised in the instant case, we come to the following conclusions:

(i) A Deed of cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish, any right, title or interest in the property and is of no effect. Such a document does not create and encumbrance in the property already transferred. Hence, such a Deed of Cancellation cannot be accepted for registration. Once title to the property is vested in the transferee by the sale of the property, it cannot be divested unto the transferor by execution and registration of a Deed of Cancellation even with the consent of the parties. The proper course would be to re-convey the property by a deed of conveyance by the transferee in favour of the transferor.

(iii) Where a transfer is effected by way of sale with the condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such instrument or sale can be cancelled by a deed of cancellation with the consent of both the parties on the ground of non-payment of consideration. The reason is that in such a Sale Deed, admittedly, the title remained with the transferor.

(iv) In other cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the Civil Court by obtaining a decree of cancellation of Sale Deed on the ground inter alia of fraud or any other valid reasons.

(iv) B.R. Koteswara Rao Vs. G. Rameswari Bai @ G. Rameswari Devi and Another, wherein the Andhra Pradesh High court held that an agreement of ''sale'' is not the same as ''sale'' and the title to the property, agreed to be sold, continues to vest with the vendor (in the case of Agreement of Sale) but in the case of title to the property vests with the purchaser. An ''Agreement of Sale'' is an executory contract, whereas ''sale'' is an executed contract.

(v) Vijya Kumar Vs. Sukhdev, wherein the Apex court held that when the question was raised in the Suit as to whether the transaction in question was an out and out sale or a loan in substance in which, the revenue record in respect of the suit land was not material to be considered. However, since the Respondent therein himself had admitted in the evidence before the Trial Court that he had himself gone to the office of the Registrar and registered the Sale Deed in favour of the Plaintiff/Appellant, the document can be construed as out and out sale and not a loan in substance.

(vi) M. Abdul Muthalip Vs. M. Samsudeen , wherein this Court held that when a party had executed Power Deed, while the same if in existence, an Agent can execute a Sale Deed in favour of any other person and that even an agent can purchase the property and the principal cannot repudiate it merely because it is for the agent''s benefits.

Countering the submissions made by the learned Senior Counsel appearing for the Appellant, learned Counsel appearing for the Respondent contended that Ex. A-3, Power of attorney Deed was executed by the Respondent/Defendant in favour of P. Sundaram only as a security for the que repayment of the loan obtained from the Appellant/Plaintiff. Therefore, the Power of Attorney holder have no right to alienate the property to the Appellant/Plaintiff. The learned Counsel appearing for the Respondent also contended that the Trial Court rightly dismissed the Suit. In support of his contention, learned Counsel, appearing for the Respondent relied upon the judgment reported in Vidhyadhar Vs. Manikrao and Another, wherein the Apex Court, held that the real test is the intention of the parties. In order to constitute a ''sale'', the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in presenti or in future. The intention is to be gathered from the recital in the Sale Deed, conduct of the parties and the evidence of record.

Though the Respondent/Defendant contended that the Power of Attorney holder namely, P. Sundaam was not known to him, while deposing evidence as D.W. 1, he specifically stated that he new the Power of Attorney-holder P. Sundaram. Therefore, it is clear that the Respondent/Defendant had executed Ex. A-3, Power of Attorney Deed in favour of Power of Attorney holder-P. Sundaram after knowing the circumstances under which the document was executed in his favour. Though Respondent/Defendant contended that as a security for the loan transaction, he executed A-3 Power of Attorney Deed in favour P. Sundaram, the said contention is not supported by any evidence.

The contention of the Appellant/Plaintiff that the Respondent/Defendant executed Ex. A-3, Power of Attorney Deed dated 31.8.1998 in favour of P. Sundaram, thereafter, since he intended to purchase the Suit, properties, he entered into F.x. A-4, Sale Agreement dated 8.9.1998 with the Power of Attorney holder. Thereafter, the said Power Agent of the Respondent/Defendant executed Ex. A-5, Sale Deed dated 31.1.2001 in favour of the Appellant/Plaintiff. Thereafter, the Appellant/Plaintiff''s name was included in the Patta under Ex. A-6 proceedings dated 28.2.2008.

As already stated, it has been recited in Ex. A-5, Sale Deed that the possession in respect of the suit properties were handed over the Appellant/Plaintiff on the date of execution of the Sale Deed by the Power Agent-P. Sundaram. Thereafter, the Appellant/Plaintiff came to know that the Respondent/Defendant has trespassed into the suit properties during September 2003.

It is also evident from Ex. A-8 to A-11 that the Respondent/Defendant had filed Caveat Petitions before various Courts anticipating litigation from the Appellant/Plaintiff. Though the Respondent/Defendant was aware of Ex. A-5, Sale Deed executed by P. Sundaram in favour of the Appellant/Plaintiff, he did not choose to file any suit for getting the Sale Deed set aside. For the reasons best known to him, he remained silent till the Appellant/Plaintiff filed the Suit for recovery of possession. The Respondent/ Defendant having taken a stand that the Power Agent is a total stranger to him had miserably failed to prove the said contention and in fact he admitted in his evidence that the Power Agent is known to him.

It is true that the Respondent/Defendant had stated in his Written Statement that he borrowed a sum of Rs. 2,00,000/- from the Appellant/ Plaintiff and executed Ex. A-3, Power of Attorney Deed for the due repayment of the loan amount. The Trial Court found that the Appellant/Plaintiff failed to file a rejoinder to the said contention. It is not necessary to file a Rejoinder to the averments stated in the Written Statement. Further, the Trial Court commented upon non issuance of notice by the Appellant/Plaintiff to the Respondent/Defendant. Since the Plaintiff had purchased the suit properties under Ex. A-5, Sale Deed from the Power Agent, of the Respondent/Defendant and as per the recitals found in Ex. A-5, Sale Deed, the possession of the suit properties were handed over to the Appellant/Plaintiff on the date of Sale Deed itself. According to the Appellant/Plaintiff, the Respondent/Defendant is a trespasser and therefore, non-issuance of notice to the Respondent/Defendant have no relevance. The Respondent/Defendant having known about Ex. A-5, registered Sale Deed in favour of the Appellant/Plaintiff, could have filed a Suit to set aside the said document. But he has not filed any Suit to set aside the document.

It is settled law that ''possession follows title''. There is no dispute with regard to the legal propositions laid down in the judgments relied upon by the learned Senior Counsel appearing for the Appellant and the learned Counsel for the Respondent. The Trial Court while dismissing the Suit found that the non-examination of the Power Agent namely, P. Sundaram is fatal to the case of the Plaintiff. It is true that adverse inference can be drawn for non-examination of the Power Agent-P. Sundaram, if the contention raised by the Respondent/Defendant that the said Power Agent is a stranger to him and that he never seen him before. The said contention was falsified by the Respondent/Defendant himself in his evidence by stating that he knew the Power Agent-P. Sundaram. In such circumstances, Ex. A-3, Power of Attorney Deed executed in favour of the said Power Agent by the Respondent/Defendant cannot be questioned. The Respondent/Defendant would have gone to the Registrar''s office for registering the Power of Attorney Deed and also known about the contents of the Power of Attorney Deed. In Ex. A-3, Power of Attorney Deed, the power agent was given power to alienate the suit properties. Based on that, he executed Ex. A-4, Sale Agreement in favour of the Appellant/Plaintiff and thereafter, executed Ex. A-5, Sale Deed in favour of the Appellant/Plaintiff. Therefore, by virtue of Ex. A-5, Sale Deed, it is clear that the Appellant/Plaintiff is the absolute owner of the suit property and entitled for possession in the suit properties. Having sold the suit properties to the Appellant/Plaintiff, the possession of the Respondent/Defendant can only be construed as that of a trespasser. Ex. A-3. Power of Attorney Deed dated 31.8.1998 and Ex. A-5, Sale Deed dated 31.1.2001 are true and valid and binding on the Respondent/ Defendant.

The Respondent/Defendant though pleaded that he borrowed a sum of Rs. 2,00,000/- from the Appellant/Plaintiff and executed Ex. A-3, Power of Attorney Deed as a security, it was not substantiated and proved by any manner. Further, Ex. A-3, Power of Attorney Deed was in force at the time of execution of Ex. A-4, Sale Agreement and at the time of execution of Ex. A-5 registered Sale Deed. After the execution of Ex. A-5, Sale Deed, the Appellant/Plaintiff also got his name included in the patta by Ex. A-6 proceedings which also proves that the Sale Deed was acted upon. The Trial Court erroneously came to the conclusion that Ex. A-5, Sale Deed was not acted upon. The Appellant/Plaintiff having purchased the property under Ex. A-5, Sale Deed is entitled to get the possession of the property. The Trial Court erroneously dismissed the Suit. The judgment and decree of the Trial Court are liable to be set aside. Accordingly, the judgment and decree of the Trial Court are set aside. The Suit in O.S. No. 94 of 2004 on the file of First Additional District Court, Erode stands decreed. The above Appeal is allowed. Consequently, connected Miscellaneous Petition is closed. However, there small be no order as to costs.