IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.04.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA.No.913/2003 1.S.K.Shanmugham 2.K.Palanivel Appellants/Defendants 1 & 2 Vs 1.Rabia Bibi 2.Safina 3.Nafila (Minor) 4.Zyaul Muhattim (Minor) Minors 3 and 4 rep. by next friend and mother Safina 5.K.P.Shanmugham Respondents/Plaintiffs & R-5 set exparte in courts 3rd Defendants below and hence given up Prayer:- This Second Appeal is filed against the Judgement and Decree dated 3.9.2001 passed in AS.No.113/2001 by the learned Principal District Judge, Erode, confirming the Judgement and Decree dated 26.2.2001 passed in OS.No.402/1999 by the learned I Additional District Munsif, Erode. For Appellants : Mr.A.K.Kumaraswamy For Respondents : Mrs.P.Veena Suresh-RR1to4 for T.R.Rajaraman JUDGEMENT The Defendants 1 and 2 are the appellants herein. 2. The case of the Plaintiffs/Respondents 1 to 4 herein is as follows:- a. The suit property bearing Door No.56, Udumansa Street, Brahmana Peria Agraharam Village, Erode Town, belonged to one late C.S.Z.Aducam Basha, who died on 4.8.1999 and he was buried on 4.8.1999 according to the Muslim Rites and Customs and the Plaintiffs/the Respondents 1 to 4 herein are his mother, wife and children, who, after his demise, inherited the properties under Muslim law. While, C.S.Z.Aducam Basha was doing business, it appears that he was borrowing monies from the Defendants, who are doing finance business. The Plaintiffs came to know that the 3rd Defendant, claiming to be the Power Agent of C.S.Z.Aducam Basha, had executed a sale deed dated 3.8.1999 for Rs.1,30,000/- in favour https://hcservices.ecourts.gov.in/hcservices/ of the Defendants 1 and 2 and presented the same for Registration on 5.8.1999 and got registered the same as Doc.No.2777. The said sale deed is a fraudulent and collusive document, as the power of attorney dated 14.2.1997 does not empower the third Defendant to execute any sale deed in favour of the Defendants 1 and 2. b. Though the sale deed is dated 3.8.1999, the same was not executed on 3.8.1999 and fraudulently, it was presented for Registration on 5.8.1999 with full knowledge of the death of C.S.Z.Aducam Basha and burial, thereby the Defendants committed the offence of breach of trust. On the death of the Principal on 4.8.1999, the power of attorney dated 14.2.1997 got terminated on 4.8.1999 and the presentation of the sale deed 5.8.1999 is also invalid. The Plaintiffs are in physical possession of the suit property and the Defendants are not in possession of the suit property. Even if there is a recital in the sale deed that possession has been delivered to the Defendants, the said recital should be false. Since the Defendants attempted to interfere with the suit property, the suit has been filed for permanent injunction. 3. The case of the Defendants is as follows:- a. The Plaintiffs are fully aware of the execution of the registered sale agreement in February 1997 and the receipt of advance amount of Rs.1,00,000/- by the deceased, the registered power of attorney dated 14.2.1997 and the sale deed dated 5.8.1999. The said sale deed was executed by the 3rd Defendant as the power of Attorney agent C.S.Z.Aducam Basha in pursuance of the power of attorney dated 14.2.1997. By virtue of the said power of attorney, the power agent is empowered to execute any document of alienation in favour of the third parties and hence, the sale deed is valid and the Plaintiffs have no locus standi to question the registered sale agreement and the power of attorney deed dated 14.2.1997 and sale deed dated 3.8.1999. b. As per the provisions contemplated under Rule 32 of the Registration Rules, the date of execution of the document is the date on which it is signed by the parties. According to Section 23 of the Registration Act, the document can be presented for registration within four months from the date of its execution. Therefore, the sale deed dated 3.8.1999 and its subsequent Registration are legally valid and the Plaintiffs cannot question the execution and its Registration. They are estopped from contending that the sale deed dated 3.8.1999 is anti dated and the same was fraudulently presented for Registration on 5.8.1999 and the Defendants are not aware of the death of the C.S.Z.Aducam Basha on the date of presentation i.e. on 5.8.1999. The mutation of records in respect of the suit property had already been effected in favour of the Defendants 1 and 2 and the Defendants 1 and 2 had paid the property tax in their name for the periods 1998-99 and 1999-2000 and hence, the suit is not maintainable in law and the same is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 4. On the pleadings of both the parties, necessary issues were framed by the Trial Court. Before the Trial Court, the Plaintiffs had marked Exs.A1 to A32 and examined the 2nd Plaintiff as PW.1. The Defendants had marked Exs.B1 to B5 and examined the Defendants 1 and 3 as DW.1 and DW.2. 5. The Trial Court, after considering both the oral and documentary evidence, decreed the suit and the appeal filed by the Defendants 1 and 2 as against the Judgement and Decree of the Trial Court was dismissed by the lower Appellate Court. Hence, this second appeal has been filed by the Defendants 1 and 2. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. This court, while admitting this second appeal, had formulated the following substantial questions of law:- (a)When the title of the Plaintiffs is disputed by the Defendants, are the Plaintiffs entitled to maintain a suit for bare injunction without seeking the relief of declaration of title? (b)Whether the courts below are justified in decreeing the suit for bare injunction, when the Plaintiffs themselves admit the execution of Ex.B1 and B2 and the execution of a sale deed by the Power of Attorney in favour of the Defendants 1 and 2? 8. According to the Plaintiffs/Respondents 1 to 4, they are the legal heirs of one C.S.Z.Aducam Basha, who acquired the property by way of partition. He died on 4.8.1999 and the Plaintiffs claimed ownership to the property, as they are the legal heirs of the deceased C.S.Z.Aducam Basha and claimed to be in possession of the suit property and as there was interference by the Defendants 1 and 2, they have filed the suit. 9. On the other hand, the Defendants claim that late C.S.Z.Aducam Basha executed an agreement of sale dated 14.2.1997 of the suit property in favour of the Defendants 1 and 2 for a sum of R.1,30,000/- and received an advance amount of Rs.1,00,000/- and the time limit for the execution of the sale deed was 36 months. Their case is that the deceased appointed the 3rd Defendant as power of attorney on the same date that is on 14.2.1997 under Ex.B2 and the 3rd Defendant is said to have executed a sale deed in favour of the Defendants 1 and 2 on 3.8.1999 and the same was registered on 5.8.1999. The Defendants claim that they were put in possession, pursuant to the sale deed and according to them, the Plaintiffs are aware of the sale agreement executed by the C.S.Z.Aducam Basha and the execution of Power of Attorney in favour of the 3rd Defendant as well. The Defendants have pleaded that they were unaware of the death of C.S.Z.Aducam Basha on 4.8.1999 and they came to know about the same only during September 1999. https://hcservices.ecourts.gov.in/hcservices/ 10. Mr.A.K.Kumaraswamy, the learned counsel for the Appellants would contend that the Plaintiffs having admitted the execution of the sale agreement and the power deed Ex.B1 and B2 respectively and the property having been sold to the Appellants/Defendants 1 and 2 under a registered sale deed dated 3.8.1999, they cannot maintain a suit for bare injunction without challenging the said sale deed. The learned counsel contended that when the Plaintiffs seek remedy for injunction against the Appellants, the burden is on them to prove that they are lawfully entitled to be in possession and also their possession on the date of the suit. 11. On the other hand, Mrs.P.Veena Suresh, the learned counsel for the Respondents supported the judgement of the courts below and contended that the Plaintiffs have proved that they are in lawful possession, which is further countenanced by the own admission of DW.1 in his evidence. She would submit that in view of such admission and the concurrent finding recorded by the courts below that the Plaintiffs are in possession, the injunction has to follow and under those circumstances, the Trial Court and the lower Appellate Court have rightly granted the relief of injunction. 12. The sale agreement is Ex.B1, the certified copy of which is marked as Ex.A1. The original power of attorney is Ex.B2. It is the case of the Plaintiffs that the sale agreement was executed by C.S.Z.Aducam Basha as a security for the loan obtained by him from the Defendants 1 and 2. They have disputed the genuineness of the sale agreement Ex.B1, the power of attorney Ex.B2 and the sale deed which is not filed before the court. Ex.A8 and A9 would show that C.S.Z.Aducam Basha died on 4.8.1999 due to heart attack and he was buried on the same day according to the Muslim Rites and Customs. 13. The case of the Defendants is that on the same date of sale agreement, a power of attorney deed Ex.B2 was also executed in favour of the 3rd Defendant. On a perusal of Ex.B2, it is seen that there is no reference to the sale agreement, though it is said to have been executed on the same day. Strangely, in Ex.B2 without reference to the sale agreement, it is stated the the power holder is authorised to negotiate for sale of the suit property with the third parties, enter into an agreement of sale and fix the sale consideration. As rightly pointed out by the Trial Court, if Ex.B2 was genuine, the execution of the sale agreement in favour of the Defendants 1 and 2 would have found a place and the absence of such recital raises a genuine doubt as to whether Ex.B1 and B2 had been executed in the manner as alleged by the Defendants. 14. DW.1, the 1st Defendant during the cross examination has stated that the 3rd Defendant put him into possession pursuant to the sale deed dated 3.8.1999. DW.2 the 3rd Defendant has also stated that he handed over possession to the Defendants 1 and 2 after the execution of the sale deed. Neither in Ex.B1 sale https://hcservices.ecourts.gov.in/hcservices/ agreement nor in Ex.B2 power deed, it is mentioned that the Appellants or the power holder was put in possession of the suit property. There is absolutely no evidence to show as to how the power holder got into possession of the suit property. 15. It is no doubt true that the proof of genuineness and validity of the documents relied on by the Defendants are left open by the courts below, however, to a limited extent to find out whether possession was handed over to the Defendants 1 and 2 by the 3rd Defendant, it has become necessary to advert to those documents. 16. The 3rd Defendant is said to have executed a sale deed in favour of the Defendants 1 and 2 on 3.8.1999 and the same was registered on 5.8.1999. The Defendants 1 and 2 claimed possession of the suit property only on the basis of the said sale deed, but it has not been produced by the Defendants. According to the Defendants, at the time of suit, the above sale deed was impounded by the Sub Registrar, as it was insufficiently stamped. Admittedly, on the date of Registration, C.S.Z.Aducam Basha, the principal of the power agent was not alive, as he had expired on 4.8.1999. 17. The Trial Court has adverted to the said facts and found that the Registration of the sale deed on 5.8.1999 in respect of the suit property by the 3rd Defendant on behalf of the deceased C.S.Z.Aducam Basha is not valid as C.S.Z.Aducam Basha was dead on 4.8.1999 and the agency got terminated on 4.8.1999 itself. It has also found that the execution of the sale itself is in question regarding its genuineness and validity and it cannot convey any possession to the Defendants 1 and 2, which finding, in my considered view, is on the basis of proper analyse of evidence available in this case. 18. Further, in the absence of any recital as to delivery of possession to the 3rd Defendant under Ex.B2 power deed and in the absence of any other evidence to prove possession of the 3rd Defendant, the claim of the Defendants 1 and 2 that they were placed in possession of the suit property by the 3rd Defendant cannot be accepted. It is not the case of the Defendants 1 and 2 that possession was delivered to them on the date of Ex.B1. The mere custody of the original documents namely the partition deed Ex.B3 and Ex.B4 release deed relating to the suit property will not prove title or possession of the Defendants, more particularly, when the Defendants have not filed the sale deed under which they claim to be in possession. Ex.B5 is the proceedings of the Executive Officer dated 25.8.2000, wherein it is seen that originally the assessment of the property was transferred in the name of the Plaintiffs on the basis that they are the legal heirs of C.S.Z.Aducam Basha and later, on the protest petition filed by the Defendants 1 and 2, the assessment was transferred in Plaintiffs' name under Ex.B5 dated 14.2.1997, but however again on an application made by the Plaintiffs, it was retransferred in plaintiff name as is evident from Ex.A24 dated 29.8.2000. Exs.A5 to A7, A10 to A23 prove the possession of the Plaintiffs coupled with https://hcservices.ecourts.gov.in/hcservices/ the admission of DW.1 that Ex.A7 contains the Door No.56, which is the suit property. DW.2 has stated that the Defendants are residing only at Singarapalayam, which is away from the suit property. 19. From the evidence adduced, it is clear that title of the Defendants is under a cloud and is in dispute and further when the Defendants are not able to establish that they were placed in possession on the basis of the sale deed dated 3.8.1999, the plaintiffs' possession will be construed to be lawful, as admittedly they are the legal heirs of the deceased C.S.Z.Aducam Basha. Both the courts have found that the Plaintiffs have proved to be in possession of the suit property and there is no perversity or legal infirmity in the said findings, warranting interference by this court in this Second Appeal. Accordingly, the substantial questions of law are answered against the Appellants. 20. In the result, this Second Appeal is dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Srcm To: 1.The Principal District Judge, Erode 2.The I Additional District Munsif, Erode 1 cc to Mr.A.K.Kumarasamy, Advocate SR 25623 1 cc to Mr.T.R.Rajaraman, Advocate Sr 25766 Judgement SA.No.913/2003 NG (CO) RH (6.5.10) https://hcservices.ecourts.gov.in/hcservices/