SARASWATHY v. SRI.S.JIJI

HARUN-UL-RASHID, J.------------------------F.A.O.No.24 Of 2010----------------------Dated this the 23rd day of July, 2012.J U D G M E N TThe plaintiff in O.S.No.70/2005 on the file of the MunsiffCourt, Kottarakkara is the appellant. The appeal is directedagainst the order of remand passed in A.S.No.125/2007 on thefile of the Sub Court, Kottarakkara. Suit was filed for declarationand injunction. The court below granted a decree declaring thatExts.A2 to A6 sale deeds executed by the 1st defendant in favourof defendants 2 to 5 on the strength of Ext.A7 power of attorneyare not binding on the plaintiff and that the same shall not affectthe right and possession of the plaintiff over the plaint scheduleproperty and declared that Ext.A7 power of attorney obtained bythe 1st defendant from the plaintiff is null and void. The courtalso granted injunction restraining the defendants fromtrespassing to the plaint schedule property and interfering withthe peaceful possession and enjoyment of the plaintiff. Partieshereinafter are referred to as the plaintiff and defendants asarrayed in the suit. ::2::F.A.O.No.24 Of 20102.The plaintiff is the sister and defendants 1 & 3 are herbrothers. Defendants 2, 4 & 5 are thirty party transferees. Theplaint schedule property is one acre in extent. Plaintiff claimstitle and possession over the plaint schedule property by virtue ofExt.A1 release deed dated 23.8.1979. The release deed wasexecuted by her mother, sisters and brothers. It is not disputedthat the plaintiff is residing along with her family atVishakhapattanam. The dispute between the parties arose during2005. It is admitted that the family house of the plaintiff issituated in the plaint schedule property and her mother isresiding in the house. So, she occasionally visited the property.The plaintiff came to know in 2005, that the 1st defendantalienated the plaint schedule property in favour of defendants 2to 5 by executing five sale deeds; one sale deed each in favour ofdefendants 2, 3 & 4 and two sale deeds in favour of the 5thdefendant conveying portions of the plaint schedule property intheir favour. Copies of the sale deeds are produced as Exts.A2 toA6. The copy of the power of attorney is marked as Ext.A7.Ext.A7 is dated 22.6.1999. It is alleged in the plaint that the ::3::F.A.O.No.24 Of 2010plaintiff on coming to know about the aforesaid power of attorneyand the sale deeds sent notice to the Sub Registrar intimatinghim that she never executed the power of attorney and the saledeeds and the power of attorney are sham documents created bythe 1st defendant. Suit was filed for a declaration that thedocuments executed by the 1st defendant in favour of defendants2 to 5 by virtue of the power of attorney are not binding on theplaintiff and to declare that the power of attorney is null andvoid. She also prayed for an injunction restraining thedefendants from trespassing into the plaint schedule property andfrom interfering with her possession and enjoyment.3.Defendants filed separate written statements.According to the 1st defendant, the plaintiff was aware of thetransactions made between the 1st defendant and defendants 2 to5, that she executed the power of attorney in favour of the 1stdefendant, that the sale deeds executed in favour of defendants 2to 5 are valid, that there was no mis-representation or fraudcommitted by the 1st defendant and that the documents wereexecuted with the knowledge and consent of the plaintiff. It is ::4::F.A.O.No.24 Of 2010also contended that defendants 2 to 5 are bonafide purchasersfor value. 4.The plaintiff was examined as PW1. Exts.A1 to A12were marked on her side. Defendants did not adduce any oralevidence. Exts.B1 to B4 documents were marked on their side.5.The plaintiff as PW1 deposed in terms of theaverments in the plaint. She testified before the court that she ispermanently residing at Vishakhapattanam. During 1999, shewent to the Sub Registrar for attesting a document as requestedby the 1st defendant and on that day the 1st defendantfraudulently obtained the power of attorney. PW1 also testifiedthat after acquiring the title by Ext.A1 release deed, she was inabsolute possession and enjoyment of the property. The plaintiffproduced Ext.A1 which is the original deed. According to her, ifshe had any reason to execute the sale deeds in favour ofdefendants 2 to 5, definitely she would have handed over theoriginal of the document to the 1st defendant. The court belowobserved that the mere production of original release deed ofExt.A1 by the plaintiff clearly show that the contentions of the ::5::F.A.O.No.24 Of 2010defendants 2 to 5 that they are bona fide purchasers for value isnot correct. The trial court observed that if they are bona fidepurchasers definitely they should enquire about the genuinenessof the power of attorney and should have insisted for theproduction of original release deed which is in the possession ofthe plaintiff. Therefore, production of Ext.A1 by the plaintiff hasgot much relevance in the case.6.Ext.A7 is the copy of the power of attorney alleged tohave been executed by the plaintiff in favour of the 1st defendant.The 1st defendant did not produce the original of power ofattorney. The 1st defendant did not enter the box and adducedany evidence and produced the original of Ext.A7 power ofattorney. He had kept the original power of attorney with himand was not produced for perusal before the court. Ext.A7power of attorney is dated 22.6.1999. Ext.A8 encumbrancecertificate reveals that on the date of execution of Ext.A7 therewas a subsisting mortgage with the Quilon District Co-operativeBank. The mortgage was redeemed on 29.9.1999. Theencumbrance certificate reveals that on 7.9.1999 the 1st ::6::F.A.O.No.24 Of 2010defendant executed Ext.A2 sale deed as a power of attorneyholder of the plaintiff in favour of the 2nd defendant. Exts.A2 toA6 sale deeds were executed on 17.7.2000, 16.2.2001,20.3.2001, 28.4.2001 and 14.5.2001 respectively. The trialcourt noticed the fact that Ext.A2 sale deed was executed by the1st defendant without redeeming the mortgage and that the 1stdefendant had every knowledge about the subsisting mortgagebecause on 29.9.1999 he got released the property by executinga release deed No.2203/1999. The trial court held that theabove said facts and circumstances reveals that Ext.B1(Ext.A5)was executed fraudulently by the 1st defendant. Thecommissioner reported that the properties are lying as a compactplot, the family house is situated therein and the plaintiff'smother is residing in the family house. The trial court took theview that if Exts.A2 to A6 were actually taken effect, there will bea partition of the property by metes and bounds. The trial courtalso noticed the fact that defendants 2 to 5 have no knowledgeabout their property and that the written statement is entirelycontradictory to Exts.A2 to A6 with regard to the extent of ::7::F.A.O.No.24 Of 2010property. Though the defendants contended that they are bonafide purchasers for value, none of them had mounted the box andgave evidence about the bona fide transaction. The trial courtafter appreciating the evidence on record found that defendants2 to 5 are acting in tune with the music played by the 1stdefendant. The court held that the evidence reveals that theplaintiff never executed the power of attorney in favour of the 1stdefendant and that Ext.A7 was obtained by the 1st defendantfraudulently, without the knowledge and consent of the plaintiffand was not binding on the plaintiff. The court therefore, heldthat consequently, Exts.A2 to A6 which were executed on thestrength of Ext.A7 are also not binding on the plaintiff. The trialcourt, for the said reasons, granted a decree as prayed for in thesuit. 7.Defendants 2, 3 & 5 alone filed appeal. Defendants 1& 4 did not file any appeal. The lower appellate court disbelievedthe versions of the plaintiff as PW1 and held that the merestatement of plaintiff that mis-representing the document as asale deed, the 1st defendant had fraudulently obtained her ::8::F.A.O.No.24 Of 2010signature, cannot be accepted. The court observed that aspresumption can be drawn in favour of the genuineness of thepower of attorney, the rebuttable evidence should have beenadduced by the plaintiff. The court also found that except theoral evidence of PW1, there is no other oral or documentaryevidence to substantiate the alleged fraud and mis-representation. The court observed that it is not at all safe torely on the sole interested testimony of PW1. The appellate courtheld that the contentions of the appellants that the evidence ofPW1 ought to have been disbelieved due to lack of cogentevidence and the trial court ought to have considered the powerof attorney as a valid document, appears to be sound andreasonable. The appellate court also held that the finding of thetrial court that a deed cannot be executed during the subsistenceof a liability cannot be accepted as such a deed can be executedsubject to the liability. It was observed that the only thing is thatthe purchasers have to suffer for it as the creditor is alwayshaving first charge over the property. Finding that thecommission report is not marked by the trial court, the appellate ::9::F.A.O.No.24 Of 2010court held that placing reliance to a document which is notmarked is not at all fair. The appellate court held that the trialcourt went wrong in appreciating the evidence and there isreasonable ground to interfere with the judgment and decreepassed by the trial court.9.The appellants filed I.A.No.563/2009 under Order XLIRule 27 Code of Civil Procedure to receive certain documents inevidence. The documents produced are the certified copies of theFIR in Crime No.567/05 of Kadakkal Police Station, the complaintfiled for registering the crime and refer report. The saidcomplaint was filed by the plaintiff against the 1st defendantcomplaining about the fraudulent execution of Ext.A7. Theappellants also filed I.A.No.458/2009. As per I.A.No.458/2009,copy of the Kerala Kaumudi Daily dated 28.7.1996 was alsoproduced. The documents are of the year 2005 and 1996. Thesuit was disposed of by the trial court by judgment dated29.6.2007. There was no reason for not producing the saiddocuments before the trial court. The appellate court simply forthe reason that some documents have produced at the fag end of ::10::F.A.O.No.24 Of 2010hearing, decided to give an opportunity to adduce evidence onthe basis of the said documents. This is a case wherein thedefendants did not mount the box and adduce oral evidence.Suit was pending from 2005. Suit was disposed of in June, 2007.There was enough and sufficient opportunities available to theparties to adduce evidence. The defendants had not chosen toproduce the documents nor cared to adduce evidence, exceptproduction of the two sale deeds, Exts.B1 & B2, which werealready produced by the plaintiff as Exts.A5 & A6. Exts.B3 & B4are the two tax receipts. So, it is clear that they have not chosento adduce any evidence in support of their contentions. Thelearned counsel for the appellant/plaintiff pointed out that in2008, the plaintiff has filed a writ petition as W.P.(C).No.27509/2008, for a direction to dispose of the appeal,expeditiously. This Court by judgment dated 22.9.2008 disposedof the writ petition with a direction to the lower appellate court todispose of the appeal on or before 31.3.2009. The learnedcounsel for the appellant submits that the arguments in theappeal were heard on 12.3.2009. I.A.Nos.563/2009 & 458/2009 ::11::F.A.O.No.24 Of 2010were allowed on 13.3.2009. It is submitted that copy of the I.A.filed for receiving additional evidence was not served on theappellant and the learned Sub Judge, after hearing thearguments of the petitioner in the I.As on 12.3.2009, disposedthe appeal on 31.3.2009. I.A for reception of evidence wasallowed on 13.3.2009 without hearing the appellant/plaintiff. Infact, it is said, even the copy of the I.A was not served on him.The counsel submits that he got information about the filing anddisposal of the I.A.Nos.458 & 563 of 2009 only from thejudgment. It is pointed out that I.A.No.563/2009 was seen filedon 12.3.2009 (on the date when the appeal was finally heard)and was allowed on the next day i.e., on 13.3.2009, withoutposting the I.A. in court. 10.The learned counsel for the appellant/plaintiffcontended that the defendants were given sufficient opportunityto adduce oral and documentary evidence. They have not chosento adduce any oral evidence. By the remand of the case, thelower appellate court acted improperly in giving opportunity tothe defendants to adduce further evidence. The learned counsel ::12::F.A.O.No.24 Of 2010submits that in fact, the direction issued to receive thedocuments in evidence and adduce evidence will seriouslyprejudice the appellant who had prosecuted the case effectively.In the facts and circumstances of the case and for the reasonthat the documents are of the year 2005 and 1996, the appellatecourt should have applied its mind as to whether the applicationsfiled the appellate court should have been allowed and permittedthe defendants to adduce further evidence at the fag end of thedisposal of the appeal. The order allowing the I.As was passedwithout hearing the respondent, who is the appellant herein andwho is the only contesting party. In the facts and circumstancesof the case, the lower appellate court shall hear the parties andpass appropriate orders in the I.As. The learned counsel for theappellant submits that if for any reason the court is of the viewthat additional documents filed in the appeal are receivable inevidence, then also a remand to the trial court is not necessary;that the appeal can be disposed of on merits.In the result, the remand order passed by the lowerappellate court in A.S.No.125/2007 and the order passed in ::13::F.A.O.No.24 Of 2010I.A.Nos.458 & 563 of 2009 are set aside. The lower appellatecourt is directed to consider I.A.Nos.458 & 563 of 2009 afresh,pass orders and thereafter, consider the appeal in accordancewith law. The parties shall appear before the court below on5.9.2012. The appeal shall be disposed of as expeditiously aspossible, at any rate, within a period of four months from thedate of appearance of the parties. No order as to costs. HARUN-UL-RASHID, Judge.bkn/-