IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 AS.No. 265 of 1999(A) ------------------------------ OS.420/1995 of SUB COURT,KATTAPPANA .................... APPELLANT(S): DEFENDANTS 7,8,9 & 10 ------------------------- 1. BALU, CHOORAKKULAM ESTATE LINES, VANDIPERIYAR KARA, PERIYAR VILLAGE. 2. J.SEKHAR, CHOORAKKULAM ESTATE LINES, VANDIPERIYAR KARA, PERIYAR VILLAGE. 3. J.AMALRAJ, CHOORAKKULAM ESTATE LINES, VANDIPERIYAR KARA, PERIYAR VILLAGE. 4. P.SANKAR, CHOORAKKULAM ESTATE LINES, VANDIPERIYAR KARA, PERIYAR VILLAGE. BY ADV. SRI.K.GOPALAKRISHNA KURUP SRI.S.MANU RESPONDENT(S): PLAINTIFF AND DEFENDANTS 1 TO 6 ----------------------- 1. RAMALINGAM, C/O. SIMON, DYMOCK KARA, PERIYAR VILLAGE. 2. CHELLAMMA, PASUPIDINGI, ESTATE PUDUVAL, LAKSHMIKOVIL P.O., KARADYKKUZHY KARA, PEERMADE VILLAGE. A.S. NO.265/1999 3. SAVITHRI, PASUPIDINGI ESTATE PUDUVAL LAKSHMIKOVL P.O. KARADYKKUZHY KARA, PEERMADE VILLAGE. *4. A.SUSAIKANGANI, PASUPIDINGI ESTATE PUDUVAL LAKSHMIKOVIL P.O., KARADYKKUZHY KARA, PEERMADE VILLAGE.(DIED) 5. AYYAPPAN, PASUPIDINGI ESTATE PUDUVAL, LAKSHMIKOVIL P.O., KARADYKKUZHY KARA, PEERMADE VILLAGE. 6. MOHAN, RANICOVIL ESTATE PUDUVAL, LAKSHMICOVIL P.O., KARADYKKUZHY KARA, PEERMADE VILLAGE. 7. MAYAN, RANICOVIL ESTATE PUDUVAL, LAKSHMIKOVIL P.O., KARADYKKUZHY KARA, PEERMADE VILLAGE. *ADDL. R8 TO R11 IMPLEADED. 8. GRACY SUSAIKANGANI, PASUPIDINGI ESTATE PUDUVAL, LAKSHMIKOVIL P.O., KARADYKKUZHY KARA , PEERMADE VILLAGE. 9. SELVY, W/O. JAMES DO. DO. 10. SOPHIA , AGED 8 YEARS, (MINOR), REP.BY HER MOTHER AND NATURAL GUARDIAN 9TH RESPONDENT. 11. SONIA, AGED 41/2 YEARS(MINOR) REP.BY HER MOTHER AND NATURAL GUARDIAN 9TH RESPONDENT. LEGAL REPRESNTATIVES OF THE DECEASED R4 ARE IMPLEADED AS ADDL. R8 TO R11 AS PER ORDER DTD. 20.1.2010 IN CMP. 6449/99. R1 BY ADV. SRI.GEORGE THOMAS (MEVADA) SRI.RATHISH VIJAYENDRAN FOR R2 & R3 BY SRI.P.JACOB VARGHESE, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.2986/1999, 1895/199 IN AS. 265/1999 DISMISSED 02/06/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.265 OF 1999 ............................................. Dated this the 2nd day of June, 2010. J U D G M E N T This is an appeal preferred by defendants 7 to 10 in O.S.No.420/1995 against the decree and judgment granted by the Subordinate Judge, Kattappana in favour of the plaintiff. The court granted a decree declaring the title of the plaintiff over the suit property and held that Exts.A1 to A3 are null and void and not binding on the plaintiff. A decree is also passed allowing the plaintiff to recover possession of the suit property from defendants 1 to 6. 2. The crux of the matter depends upon the correctness of the power of attorney alleged to be executed by the plaintiff in favour of one Balu, who is the 7th defendant in the suit. The case proceeds on the basis that no such power of attorney has been executed at all in favour of the said Balu and therefore any transaction entered into by Balu and others on the basis of the said power of attorney is invalid in law. So for a proper determination of the case, the first and foremost point to be decided is regarding the correctness of Ext.B1. Unfortunately except for the mere ipsi dixit of the : 2 : A.S.NO.265 OF 1999 plaintiff and the 7th defendant, no further materials are forthcoming to put forward the genuineness of the document. A perusal of Ext.B1 would reveal that it is seen to be registered in the Sub Registrar's Office at Thane and that it is executed by G. Ramalingam to his son Balu. In fact Balu is not the son of G. Ramalingam at all and therefore it is contended that on the face of the document itself there is incorrectness and fraud at large. A perusal of the power of attorney would reveal that power is given with respect to a dealing with the property of 5 acres and 79 cents in Sy.No.399 with Thandaper No.1441. 3. I feel when a registered power of attorney is under challenge, it is expected that better evidence is adduced in support of that and also against so that the court will be in a position to analyse the materials to arrive at a proper decision. I do not want to elaborate for the reason that it may affect one of the parties, but need less to state that the very signature of G. Ramalingam can be sent for comparison. The persons who had attested the power of attorney can be examined as witnesses and similarly documents relating : 3 : A.S.NO.265 OF 1999 to the registration of the power of attorney can be summoned from the Thane Sub Registrar's Office and therefore, materials thus can be made available for the court to arrive at a proper decision on the point. So the judgment and decree of the trial court require interference and therefore, they are set aside. 4. In the result, the judgment and decree of the trial court are set aside and the matter is remitted back to the trial court for a fresh consideration by permitting all the parties concerned to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law with respect to all the contentions raised by the parties. Parties are directed to appear before the court below on 15.7.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : A.S.NO.265 OF 1999 M.N. KRISHNAN, J. ........................................... A.S.NO.265 OF 1999 ............................................. 2nd day of June, 2010. J U D G M E N T