Madras High Court
D. Rajendiran (Died) vs P.S. Vairakannu Achari on 8 July, 2026
A.S.No.365 and 366 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON: 29.04.2026
JUDGMENT PRONOUNCED ON: 08.07.2026
CORAM
THE HON’BLE MRS.JUSTICE N.MALA
A.S.Nos.365 and 366 of 2023
and CMP.Nos.12716 of 2023 and 26650 of 2025
A.S.No.365 of 2023
1.D.Rajendiran [Died]
S/o.Duraisamy Nainar,
Keezhur Village,
Panruti Taluk.
2.R.Rajeswari, W/o.late D.Rajendiran
3.R.Ramadevi, W/o.Ramesh
4.R.Rajmohan, S/o.Late D.Rajendiran ...Appellants
**Appellants 2 to 4 are brought on record
as LRs of the deceased sole appellant vide
order of this Court dated 25.06.2026
made in CMP.No.15508/2026 in AS.Nos.365/2023
Vs.
P.S.Vairakannu Achari
S/o.Shanmuga Achari,
No.8B, Kasthuribai Street,
Panruti Town.
...Respondent
A.S.No.366 of 2023
1.D.Rajendiran [Died]
S/o.Duraisamy Nainar,
Keezhur Village,
Panruti Taluk.
2.R.Rajeswari, W/o.late D.Rajendiran
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3.R.Ramadevi, W/o.Ramesh
4.R.Rajmohan, S/o.Late D.Rajendiran ...Appellants
**Appellants 2 to 4 are brought on record
as LRs of the deceased sole appellant vide
order of this Court dated 25.06.2026 made in CMP.No.15503/2026 in
AS.Nos.365/2023
Vs.
1.P.S.Vairakannu Achari,
S/o.V.S.Shanmuga Achari.
2.S.V.Arul,
S/o.P.S.Vairakannu Achari.
No’s.1 & 2 are residing at:
No.8B, Kasthuribai Street,
Panruti Town, Cuddalore District.
3.V.Sundaramurthy,
S/o.Veerappa Achari,
No.28/C, Appalu Street,
Panruti, Cuddalore District.
...Respondents
Prayer in A.S.No.365 of 2023:
First Appeal is filed under Order XLI Rule 1 of A.S. Rules read with Section 96 of
CPC, praying to set aside the Common Judgement and Decree dated 23.12.2022 passed
in O.S.No.106 of 2020 by the I Additional District and Sessions Judge, Cuddalore.
Prayer in A.S.No.366 of 2023:
First Appeal is filed under Order XLI Rule 1 of A.S. Rules read with Section 96 of
CPC, praying to set aside the Common Judgement and Decree dated 23.12.2022 passed
in O.S.No.229 of 2020 by the I Additional District and Sessions Judge, Cuddalore.
For Appellant(s)
in both Appeals: Mrs.Chitra Sampath, Sr.Adv.
For Mr.T.S.Baskaran
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For Respondent(s): Mr.T.Murugamanickam, Sr.Adv.
for Mr.K.Moorthy for the respondent
in AS.No.365/2023 and for R1 in AS.No.366/2023
Mr.P.Mathivanan for R2 in AS.No.366/2023
Mr.M.Venkatakrishnan for R3 in AS.No.366/2023
COMMON JUDGMENT
The above appeals arise out of a common judgment passed in the suits,
O.S.No.106 of 2020 and O.S.No.229 of 2020. As the appeals arise out of a
common judgment, the parties and the issues involved are one and the same, the
appeals are disposed of by this common judgment.
2.For the sake of convenience, the parties will be referred to as per their
array in A.S.No.366 of 2023, arising out of O.S.No.229 of 2020.
Consolidated Pleadings in Both Suits:
3.The 1st respondent filed a suit in O.S.No.106 of 2020, on the file of the I
Additional District & Sessions Court, Cuddalore, seeking declaration of his title to
the suit property and for recovery of possession. The 1 st respondent claimed
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absolute ownership of the suit property on the basis of sale Deed dated 02.07.2013,
executed by the 2nd respondent, his son (the power agent of the appellant) in his
favour. According to the 1st respondent, pursuant to the sale in his favour, the
possession of the suit properties were delivered to him, but on the request of the
appellant to cultivate the suit lands on Waram basis, the property was entrusted to
the appellant, with an understanding that a share of the crops will be given to him.
The 1st respondent further contended that since, the appellant failed to share the
Waram from January 2019 and lodged a false complaint against him before the
Land Grabbing Special Cell, Cuddalore District, he was constrained to file the suit
in O.S.No.106 of 2020, for the aforesaid reliefs.
4.The appellant filed written statement in the suit filed by the 1 st respondent
and also filed the suit O.S.No.229 of 2020, on the file of the I Additional District &
Sessions Judge, Cuddalore for declaration of his title to the suit property, to declare
sale Deeds dated 02.07.2013 of the 1st respondent as null and void and other reliefs.
The appellant’s case was that the suit property was his absolute property and that it
was allotted to him under a family partition dated 29.06.2009. The appellant
contended that the 1st respondent and his son were doing pawn broking and
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jewellery business, and that due to financial difficulties, he borrowed a sum of
Rs.5,00,000/- from them in the year 2011 for his business needs. The appellant
contended that as demanded by the respondents 1 and 2, he executed general
power of attorney on 12.12.2011, in respect of the suit property as a security for the
loan borrowed by him. The appellant further contended that he was always in
possession of the suit property and that the revenue records also stood in his name.
According to the appellant, he was paying the interest regularly to the respondents,
but around April 2019, the respondents illegally demanded interest at 48% per
annum, which he declined to pay. Thereafter, the appellant came to know that the
respondents were attempting to alienate the suit property and so he immediately
applied for encumbrance certificate. On perusal of encumbrance certificate, the
appellant came to know that the 2nd respondent entered into a sale agreement on the
date of execution of the Power of attorney, with one V.Sundaramoorthy, for sale of
the suit property, for a sum of Rs.10,00,000/-. Later, the 1 st respondent obtained
two registered sale Deeds on 02.07.2013, from the 2nd respondent in his favour.
The sale Deeds were purportedly executed on the strength of the Power of attorney
Deed executed by him in favour of the 2nd respondent at the time of borrowal of the
loan. Since the respondents 1 and 2 had colluded, with an intention to deprive the
appellant of his right over the suit property, he filed a complaint before the Anti
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Land Grabbing Cell, Cuddalore. He thereafter issued legal notice on 18.07.2019,
and the respondents replied to the same, raising untenable grounds. The appellant
further submitted that when he lodged a police complaint against the respondents,
he was advised to approach the Civil Court. Accordingly, he instituted the suit for
declaration of his title, for a declaration that the sale Deeds obtained by the 1 st
respondent were null and void and other reliefs.
5.The appellant in his written statement filed in suit O.S.No.106 of 2020,
raised identical pleadings. So also, 1 st respondent as the defendant in O.S.No.229
of 2020, raised similar pleadings as in his suit, O.S.No.106 of 2020 and therefore
they are not traversed to avoid replication. The respondents 2 and 3 filed separate
written statements in the suit filed by the appellant in O.S.No.229 of 2020. The 2 nd
respondent replicated the pleadings of the 1st respondent in O.S.No.106 of 2020
and O.S.No.229 of 2020. Only the material averments made in the written
statement of the 2nd respondent are referred to, to avoid prolixity.
6.The 2nd respondent contended that at the time of execution of the General
power of attorney, on 12.12.2011, executed by the appellant in his favour, the sale
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consideration was fixed at Rs.25,00,000/- and that the appellant received the said
sum. The 2nd respondent further contended that on 12.12.2011 itself, the appellant
executed a receipt confirming not only the execution of the General power of
attorney, but also agreeing not to revoke it, acknowledging the receipt of the entire
sale consideration and delivering the original documents and possession of the suit
property. The 2nd respondent contended that in view of the receipt, the General
power of attorney which was coupled with interest became irrevocable. The 2 nd
respondent further contended that pursuant to the General power of attorney, he
executed a sale agreement in favour of the 3 rd respondent and later, on withdrawal
of the 3rd respondent from the proposed sale, he executed the registered sale Deeds
in favour of the 1st respondent, his father. The 2nd respondent contended that he and
his father were doing business separately. The 2nd respondent further contended
that 1st respondent was a bona fide purchaser for value, without notice of any
defect in title. In view of the aforesaid contentions, the 2 nd respondent prayed for
dismissal of the suit.
7.The 3rd respondent in his written statement denied all the averments made
in the plaint. The 3rd respondent stated that the sale agreement of the 2nd
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respondent on 12.12.2011, in his favour was well within the knowledge of the
appellant. The 3rd respondent further stated that, because of family circumstances,
he was not able to purchase the property and therefore he gave his no objection to
the sale of the suit property to the 1 st respondent. The 3rd respondent denied any
connection with the other averments made in the appellants’ plaint. The 3 rd
respondent therefore prayed for the dismissal of the suit.
8.Before the trial Court, the 1st respondent filed Ex.A1 to Ex.A15 and
examined P.W1 to P.W5 in support of his case. The appellant filed Ex.B1 to
Ex.B13 and examined two witnesses on his side. The Trial Court passed a common
judgment and decree dated 23.12.2022 in the suits. Aggrieved by the common
judgment and decree of the trial Court, the appellant preferred the above appeals.
9. On the basis of the pleadings of the parties, the trial Court framed the
following issues in O.S.No.106/2020 and O.S.No.229/2020.
Issues framed by the Trial Court in O.S.No.106/2020:
1. Whether the General Power of Attorney dated 12.12.2011
was executed by the defendant as security for the loan borrowed?
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2. Is it correct to say that the sale deeds dated 02.07.2013
executed in favour of the plaintiff is a fraudulent one?
3. Whether the plaintiff is entitled for the relief of declaration
and possession as prayed in the suit?
4. To what other reliefs the plaintiff is entitled to?
Issues framed by the Trial Court in O.S.No.229/2020:
1. Whether the Plaintiff is entitled for a Decree declaring
that the Plaintiff has title over the Suit Properties?
2. Whether the Plaintiff was/is in possession of the Suit
Properties on the date of filing of this Suit?
3. Whether the plaintiff is entitled for a Permanent
Injunction as prayed for?
4. Whether the Plaintiff is entitled for a Decree directing
the Sub-Registrar, Kurinjipadi, to cancel the Sale Deed,
dt.02.07.2013, registered under Document No.1215/2013 as null
and void?
5. Whether the Plaintiff is entitled for a Decree directing
the Sub-Registrar, Kurincipadi, to cancel the Sale Deed,
dt.02.07.2013, registered under Document No.1216/2013 as null
and void?
6. Whether the Plaintiff has executed the General Power
of Attorney Deed dt.12.12.2011 in favour of 2” Defendant as
Security or it is irrevocable, as it was coupled with interest?
7. Whether the Suit is bad for want of cause of action?
8. Whether the Suit is barred by Limitation?
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9. Whether the Plaintiff is entitled for Decree as prayed
for?
10. To what reliefs the Parties entitled
Findings of the Trial Court:
10.On Issue No.1 in O.S.No.106/2020 and Issue No.6 in O.S.No.229/2020,
the trial Court on the basis of the admission of execution of Ex.A4 and A5 by the
appellant as D.W1 and the oral evidence of the respondent’s witnesses, held that
the Power of attorney executed by the appellant, was valid, that it was executed
only with an intention to authorise the 2nd respondent to deal with the appellants
suit property, and that it was not executed as a security for the loan. The trial Court
found that Ex.A4, the General power of attorney, executed by the appellant in
favour of the 2nd respondent, in view of Ex.A5 (Receipt) was coupled with interest,
and therefore it was irrevocable. The trial Court on such findings answered the
aforesaid issues in favour of the 1st respondent.
11.On Issue No.2 in O.S.No.106/2020 and Issue Nos.4 and 5 in
O.S.No.229/2020, the trial court on appreciation of the evidence found that the
appellant had admitted the execution of Ex.A4, in favour of the 2 nd respondent and
therefore the 2nd respondent was authorised as the agent of the appellant to deal
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A.S.No.365 and 366 of 2023with the suit property, either as a whole or in pieces. The trial Court further found
that since Ex.A4, was not revoked on the date of execution of the sale Deeds,
Ex.A6 and Ex.A7, the said sale Deeds executed by the 2 nd respondent in favour of
the 1st respondent were legally valid and thus answered issue No.2 in
O.S.No.106/2020 in favour of the respondents. Since the trial Court found that the
sale Deeds under Ex.A6 and Ex.A7, in favour of the 1 st respondent were valid, it
held that the appellant was not entitled to the relief of cancellation of sale Deeds
and accordingly, answered issue No.4 and 5 against the appellant.
12.The issues 1 to 3 in O.S.No.229 of 2020, relating to the declaration of the
appellant’s title, possession and permanent injunction were concerned, the trial
Court held that the appellant was liable to hand over the possession of the suit
property to the 1st respondent, since the title was found in his favour. The trial
Court found that the appellant was in permissive possession of the property and not
as a lawful owner. The trial Court on the basis of its finding that the title to the suit
property vested with the 1st respondent under Ex.A6 & Ex.A7, held that the
appellant was not entitled to permanent injunction, since no injunction could be
granted against the true owner.
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13.The issues 7 and 8 in O.S.No.229/2020, relating to absence of cause of
action for the suit and limitation were concerned the trial Court found that Ex.A6
and Ex.A7 were challenged as fraudulent documents and therefore the suit for their
cancellation, whether on the ground of being void or voidable, was governed only
by Article 59 of the Limitation Act. The trial Court in the absence of the
encumbrance certificate, rejected the appellants contention that the suit was within
time from the date of the knowledge of the sale Deeds and therefore held that since
the appellant failed to seek cancellation of the sale Deeds under Ex.A6 and Ex.A7,
within the period of 3 years, from the date of execution of the Deeds the suit was
barred by limitation. Accordingly, the trial Court answered issues 7 and 8 in
O.S.No.229/2020 against the appellant.
14.Issue No. 3 in O.S.No.106/2020 and issue No.9 in O.S.No.229/2020:
The trial Court on a cumulative analysis of the entire evidence, held that the
1st respondent had proved his title to the suit property, and that since the permissive
possession of the appellant was revoked by filing the suit for recovery of
possession, the 1st respondent was entitled to the relief of declaration of title and
also for recovery of possession of the suit property. The trial Court held that the
appellant was not entitled to any relief, since he had failed to prove his case. The
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A.S.No.365 and 366 of 2023trial Court accordingly decreed the suit in O.S.No.106/2020 as prayed for and
dismissed the suit in O.S.No.229/2020. Aggrieved by the common judgment and
decree of the trial court, the appellant has filed the above appeals.
15.On a consideration of the pleadings and evidence on record, the following
issues are framed in these appeals.
i) Whether the respondent is entitled to the relief of declaration of his title to
the suit property and recovery of possession?
ii) Whether the Power of attorney Deed, ExA4 was executed only as a
security for the loan availed by the appellant from the 2nd respondent?
iii)Whether the appellant is entitled to the declaratory reliefs prayed for?
iv) Whether the suit is barred by limitation?
v) Whether the appellant is in possession of the properties in his own right if
so, is he entitled to relief of injunction?
vi) To what reliefs the parties are entitled to?
16.As issues 1, 2 and 3 are interlinked they are taken together.
Issue Nos.1, 2 & 3:Whether the respondent is entitled to the relief of declaration
of his title to the suit property and recovery of possession, whether the Power of
attorney Deed, ExA4 was executed only as a security for the loan availed by the
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appellant from the 2nd respondent and whether the appellant is entitled to the
declaratory reliefs prayed for?
The facts of the case narrated above are not traversed, to avoid verbosity.
Admittedly, the suit properties belong to the appellant, he having obtained the same
under a family partition dated 29.06.2009. The basic documents on which basis
the 1st respondent seeks declaration of his title to the suit properties and recovery of
possession are Ex.A4 to Ex.A7. Ex.A4, is the Power of attorney executed by the
appellant in favour of the 2nd respondent. Ex.A5 is the receipt executed by the
appellant in favour of the 2nd respondent, evidencing the payment /receipt of Rs.25
lakhs as sale consideration, including an undertaking not to revoke Ex.A4, handing
over title document and delivering possession of the suit properties. Exs.A6 and
A7 are the sale Deeds executed by the 2 nd respondent, in favour of the 1 st
respondent. In the present case the appellant has not disputed the execution of
Ex.A4 and Ex.A5. However, the appellant contended that Ex.A4, was executed
only as a security for the loan amount of Rs.5 lakhs borrowed by him from the 2 nd
respondent. In so far as Ex.A5 is concerned, though the appellant did not deny its
execution, he contended that he did not receive any consideration under it.
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17.Before embarking on an analysis of the facts and the evidence on record,
I deem it appropriate to mention here that in suits of the present nature when, the
entire evidence is before the Court the question of burden of proof loses
significance. I am of the view that since the entire evidence is before the Court,
the Court will have to decide the matter on a holistic evaluation of the evidence on
record adduced by both sides to find out, which party’s case stands probalised.
18.Let me, first examine the 1st respondent’s case for declaration of his title
and recovery of possession of the suit properties. The foundational documents
based on which the 1st respondent seeks for declaration of title are Exs.A4 and A5.
Before proceeding further, I am of the view that it is very crucial to note here that
the 1st respondent is none-else than the father of the 2nd respondent and the 3rd
respondent is their long standing employee of 15 years. Upon a reading of Ex.A4,
Power of attorney, it is clear that it is general in nature and does not secure agent’s
right in the subject-matter of the agency. The Agent’s right in the subject matter of
agency is claimed under Ex.A5, the receipt.
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19.According to the 2nd respondent, at the time of execution of Power of the
attorney Deed, Ex.A4, the sale consideration for the suit property was fixed at
Rs.25 lakhs, and the same was paid by him to the appellant. The 2 nd respondent,
contended that the appellant in acknowledgment of the receipt of the sale
consideration executed Ex.A5, apart from undertaking, not to revoke the Power of
attorney, Ex.A4. The appellant under Ex.A5 is also said to have delivered the
original partition deed (title document) and possession of the suit properties to the
2nd respondent. The appellant, eventhough, did not deny the execution of Ex.A5,
contended that it was a fraudulent document created by the respondents by using
signed blank papers obtained from him by coercion. The trial Court rejected the
said contention, on the simple ground that there was no plea to such effect in the
appellant’s pleadings. The trial Court in the absence of a denial of execution of
Ex.A5, relying on the recitals therein and the oral evidence of P.W3 (2 nd
respondent) and P.W5 (3rd respondent) held that the appellant’s contention that
Ex.A4 was executed only as a security for the loan borrowed by him, was
untenable. In my view, the trial Court miserably failed to note that the appellant
eventhough did not deny the execution of Ex.A4 and Ex.A5, specifically pleaded
that Ex.A4 was executed only as a security for the loan and that no sale
consideration, muchless Rs.25 lakhs was paid to him under Ex.A5. Even though
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the appellant did not deny the execution of Ex.A5, he denied the receipt of the sale
consideration and therefore, the respondents are bound to prove that Ex.A5 is
supported by consideration.
20.Admittedly, Ex.A4 (Power of Attorney) is a simple Power of attorney,
authorising the 2nd respondent, to deal with the appellant’s property and does not
create any right in the agent to the subject matter of the agency. The 2 nd respondent
claims a right and interest in the subject matter of the agency under Ex.A5. The
respondent’s contended that by virtue of Ex.A5, the power of attorney [Ex.A4] was
irrevocable since it was coupled with interest. Ex.A5 recites that the sale
consideration of Rs.25 lakhs,was received by the appellant. In Ex.A5, the
appellant undertook not to revoke the Power of attorney, delivered possession and
handed over the original document. The 2nd respondent’s specific stand is that
under Ex.A5, sale consideration of Rs.25 lakhs was paid to the appellant and that a
combined reading of Ex.A4 and A5 which are contemporaneous documents
established that he had an interest in the subject matter of Power of attorney and
hence, it was irrevocable. Here, it would be pertinent to point out that the practise
of transferring property by GPA sales was deprecated by the Hon’ble Supreme
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Court in the case of Suraj Lamp and Industries Private Limited vs. State of
Haryana and another, reported in (2012) 1 SCC 656. The Hon’ble Supreme
Court held as follows:
“24. We therefore reiterate that immovable property can be
legally and lawfully transferred/conveyed only by a registered deed
of conveyance. Transactions of the nature of “GPA sales” or
“SA/GPA/will transfers” do not convey title and do not amount to
transfer, nor can they be recognised or valid mode of transfer of
immovable property. The courts will not treat such transactions as
completed or concluded transfers or as conveyances as they neither
convey title nor create any interest in an immovable property…”The respondents to overcome this legal hurdle, rely on Ex.A5, to contend that
Ex.A4 is coupled with interest and hence, irrevocable. To prove the passing of the
sale consideration of Rs.25 lakhs, under Ex.A5, heavy reliance is placed on the oral
testimony of P.W3 and P.W5. As already mentioned, P.W3 (2 nd respondent) is the
son of the 1st respondent and P.W5 (3rd respondent) is their long standing employee
of 15 years. Further the evidence on record discloses that, P.W5 entered into a sale
agreement with P.W3, on the date of execution of Ex.A4, for sale of the suit
property for a sale consideration of Rs.10 lakhs, much below the consideration
fixed under Ex.A5. However, the sale did not materialise, since PW3 withdrew
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A.S.No.365 and 366 of 2023from the sale allegedly due to financial constraints and later gave no objection for
the sale in favour of the 1st respondent, his employer. The said transaction is relied
upon by the appellant as indicative of the respondents’ alleged design to illegally
grab the appellant’s property and to demonstrate that PW3 and PW5 are interested
witnesses.
21.Pertinently, in the present case, there is absolutely no documentary
evidence to prove the payment of the alleged sale consideration of Rs.25 lakhs, to
the appellant. The alleged cash transfer of such huge amount was made by
executing the receipt on a non-judicial stamp paper. It will be apposite to note here
that the respondents have not filed the bank statement, ledger entries, income tax
returns or account books to prove the payment of the alleged sale consideration of
Rs.25 lakhs. Therefore, in the absence of any legally tenable document, a genuine
doubt arises if such a huge amount of Rs.25 Lakhs was actually paid under Ex.A5.
In the absence of any legally acceptable documentary evidence, the entire case now
hinges on the oral testimony of P.W3 and P.W5.
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22.The evidence of P.W3 regarding the payment of the sale consideration is
neither supported nor corroborated by P.W5, the other alleged witness to the
payment. Interestingly, P.W3, in his written statement merely stated that the sale
consideration was paid, but did not mention the mode of payment. The payment of
the sale consideration in cash was mentioned for the first time only in his evidence.
P.W.3 stated as follows:
“rhu;gjpthsu ; mYtyfj;jpy ; itj;J jhd ; ,Ugj;ije;J yl;rk;
U:gha; buhf;fkhf uhn$e;jpudplk; bfhLj;njd;/”From the aforesaid statement of P.W3, it is clear that the amount was paid in cash
in the sub-registrar’s office.
23.P.W5, examined as a witness to Ex.A5, receipt, merely stated that the
appellant received the sale consideration and signed the receipt. The evidence of
P.W5 is as follows:
@tHf;F brhj;jpw;fhd KG fpiua bjhif U:/25.00.000-?
(U:gha ; ,Ugj;ije;J yl;rk ; kl;oy;) 12?12?2011 njjpapnyna.
mUsplkpUe;J gpujpthjp uhn$epjpud ; bgw;Wf;bfhz;ljw;F.
mj;jhl;rpahf. mUs ; bgaUf;F xU fpiua bjhif
tut[gj;jpuj;ij gpujpthjp uhn$e;jpud ; vGjp ifbahg;gk ; bra;J
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A.S.No.365 and 366 of 2023bfhLj;Js;shu;/ gpujpthjp uhn$e;jpud ; fpiua bjhif
U:/25.00.000-?j;ij bgw;Wf;bfhz;L. fpiuaj;bjhif tuë
gj;jpuj;jpy ; gpujpthjp uhn$e;jpud ; ifbahg;gk ; bra;jij ehDk;.
kw;bwhU rhl;rpahd gHdp. gpujpthjpapd; Kftuhd mUs; kw;Wk;
Mtz vGj;ju; bghd;dg;gd; Mfpnahu; ghu;j;njhk;/@
24.The evidence of P.W5 does not corroborate the evidence of P.W3, on the
mode of payment, namely cash payment. P.W3 merely states that the entire sale
consideration was paid and received by the appellant and that, Ex.A5 was executed
by the appellant in his presence. Therefore, except the self serving testimony of
P.W3, that he paid the sale consideration of Rs.25 lakhs in cash, there is no other
evidence available, to support his statement. It would be pertinent to note here that
P.W5, who is the 3rd respondent in the appellant’s suit did not even make a passing
reference to Ex.A5 in his pleadings. Contrarily, in his written statement, he
specifically averred that, apart from the matters expressly referred to therein, all
other averments in the appellant’s plaint did not relate to him, which raises a
suspicion regarding his linkage to Ex.A5. Having taken a specific stand as above
on Ex.A5, it is not clear how P.W5 could speak about Ex.A5. In the absence of
any documentary evidence in support of the payment of the huge sale
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consideration of Rs.25 lakhs under Ex.A5 and in the light of the uncorroborated,
self serving and interested evidence of P.W3, I am of the view that the respondents
have failed to prove the passing of sale consideration under Ex.A5. The Trial
Court, in my view, erroneously inferred that the sale consideration had passed
solely because the appellant admitted the execution of Ex.A5 and was, in its view,
a worldly wise person. Ex.A5 is unbelievable for other reasons also, which are
discussed hereunder.
25.Admittedly, even possession remained with the appellant. The trial Court
on the basis of its finding that the respondent established his title over the suit
property, held that the appellant was not entitled to possession. The trial court
without any evidence merely assumed that the appellant was in permissive
possession of the suit property on Waram basis. There is absolutely no iota of
evidence to support of the respondents contention that the appellant was put in
possession of the suit properties only on Waram basis. In the absence of any
evidence to prove that the appellant was put in possession on Waram basis, the
recitals in Ex.A5 regarding possession also becomes doubtful. Regarding delivery
of the original documents under Ex.A5, I find that the Partition Deed includes the
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other properties of the appellant. The respondents as P.W1 & P.W3 also admitted
that the original partition deed includes other properties also. Since the appellant
was admittedly allotted some other properties apart from the suit properties under
the Partition Deed, the contention of the appellant that it was handed over only as a
security for the loan is probablised. In view of the aforesaid discussions, I find
that Ex.A5 is not a valid document since, the respondents failed to prove both the
passing of consideration and delivery of possession under it. The Trial Court relied
on several judgments, for the proposition that a Power of Attorney coupled with
interest is irrevocable. In my view, the judgments are inapplicable to the facts of
the present case in view of my finding on Ex.A5. I do not propose to discuss those
judgments, since they are inapplicable to the facts of the case and their discussion
would merely add paper without purpose.
26.Let me now consider the contention of the appellant that Ex.A4 was
executed only as a security for the loan borrowed by him from the 2 nd respondent.
The evidence on record discloses that P.W1 and P.W3, father and son are
professional money lenders and involved in pawn broking and jewellery business.
The evidence of P.W1, supports the appellants case that he was a professional
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money lender. P.W1 stated as follows: @ehd; ,Jtiu Ie;jhapuk; ngUf;F gzk;
bfhLf;fy ; th’;fy ; bra;Js;nsd;. Mdhy ; xUtuplk ; Tl vdf;F gpur;rpid
Vw;gl;ljpy;iy/@ Even P.W5, the employee of the respondents, in his evidence
admitted that the duo of P.W1 and P.W3, were doing business jointly. The
evidence on record reveals that the respondents 1 and 2 are professional money
lenders and therefore, the contention of the appellant that the 2 nd respondent while
advancing the loan of Rs.5 lakhs to him obtained the Power of attorney, as security
for the loan cannot be brushed aside. Even though there is no independent
evidence on the side of the appellant to support his case that Ex.A4 was executed
only as a loan, the evidence of P.W1 (1 st respondent) amply fortifies his case that
the relationship between him and the respondents 1 and 2, was only that of a
creditor and debtor. It is trite that an unequivocal and unconditional admission of a
party is the best evidence. P.W1 in his cross examination initially stated that he
had no monetary dealings with the appellant, but in the course of further cross
examination, he candidly admitted his money dealings with the appellant and
payment of Rs.25 lakhs, only as a loan. The admission of the 1 st respondent as
P.W1 is as follows:
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A.S.No.365 and 366 of 2023@ehd ; vd ; gzj;jpw;F ghJfhg;ghf ,Uf;fj;jhd ; fpuak;
th’;fpndd;/ bghJ mjpfhu gj;jpuk; bfhLj;J. xUtUlk; fHpj;J
vd; kfd;. ehd; tpahghuj;jpw;F gzk; ,y;yhky; gzj;ij vy;yhk;
g[ul;o. uhn$e;jpudplk ; bfhLj;Jtpl;ljhft[k;. jhd;
fc;lg;gLtjhft[k ; vd;dplk ; brhd;dhh ; mjdhy ; ehd ; vd;
kfdplk ; ,Ugj;ije;J yl;rk ; U:gha ; bfhLj;J vd ; bgaupy;
brhj;ij vGjpitf;Fk;goa[k;. ehd; mij ghu;j;Jf;bfhs;tjhft[k;
brhd;ndd;/ vd;dplk; th’;fpa ,Ugj;ije;J yl;rj;jpw;F murh’;f
tl;o nghl;L mg;nghJ bfhLj;jpUe;jhy ; ehd ; mij
bgw;Wf;bfhz;oUg;ngd;/ Mdhy ; vd;Dila gzk ; ,g;nghJ
bjhz;QqW yl;rj;jpw;F nky ; tl;onahL tUk;/ jw;nghJ
brhj;J ,uz;Lnfho U:gha;f;F nky; nghFk;/ vdf;fhd gzj;ij
bfhLj;Jtpl;L brhj;ij gpujpthjp itj;Jf;bfhs;tjpy ; vdf;F
Ml;nrgiz ,y;iy/ jhth fpuaj;ij ehd; gpujpthjpaplk; th’;fpa
gpwF. vdf;Fk; gpujpthjpf;Fk; bfhLf;fy; th’;fy; VJt[k ; ,y;iy/
gujpthjp vd;dplk ; Ie;J yl;rk ; U:gha ; jhd ; fld ; bgw;whu;
vd;whYk;. ehd; ,Ugije;J yl;rk; U:gha; fldhf bfhLj;jjhf
brhy;tJ jtW vd;why; rupay;y/ ehd; ,Ugj;ije;J yl;rk; U:gha;
jhd; fldhf bfhLj;njd;/@
From the aforesaid admission of P.W1, it is clear that he is a professional moneylender and that he advanced the amount only as a loan. In the absence of any
cogent and convincing explanation for withdrawing from the said admission, I am
of the view, that there can be no better evidence to prove the appellant’s case.
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27.I find the trial Court erroneously rejected the above crucial and vital
admissions as being mere stray statements and insufficient to set aside Ex.A5. In
my view, the trial Court failed to appreciate the evidence in a proper manner. The
trial court miserably failed to note that the appellant’s case that the father and son,
duo of P.W1 & P.W3 along with P.W5, their employee, colluded to create
documents in their favour so as to deprive the appellant of his lawful right to the
suit property was probablised by their own evidence. The 2 nd respondent as P.W3
obtained the Power of attorney under Ex.A4, from the appellant and thereafter
executed a farcical sale agreement in favour of P.W5 who in turn withdrew from
the sale to facilitate the sale Deeds viz Ex.A6 and Ex.A7, in favour of P.W1, his
employer. The trial Court failed to note the said dubious design of the respondents
to grab the property of the appellant.
28.At this juncture, the additional evidence filed by the appellant is taken for
consideration. The appellant has filed the petition for receipt of additional
evidence under Order 41 Rule 27 CPC. The documents sought to be filed are GST
registration certificate of the appellant’s firm and the bank statement of the firm
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evidencing the credit of Rs.8,10,000/- to the 1st respondent’s account. The
appellant has explained the delay by stating that he was under the impression that
the amount was transferred to the 1st respondent’s account from his individual
account, but on thorough examination, it came to light that the amount was actually
transferred from his firms account to the 1 st respondent’s account. The appellant
therefore prayed to receive the documents. The respondents opposed the
application. The respondents in para 6 of the counter admitted “that the appellant
was aware of the alleged payment at the trial proceedings, he had specifically
referred to such payment in his pleadings and cross examination but no
documentary evidence was produced”. From the aforesaid statement in the
counter, it is clear that the foundational facts for receipt of additional evidence
were very much available in the appellant’s pleadings and therefore no prejudice
would be caused to the respondents by receiving the documents. Further, I find
that the additional documents sought to be produced are the GST registration
certificate and bank statements, which in my considered view need no formal or
further proof and hence, the same are received as additional evidence. The GST
registration certificate shows that the appellant is one of the partners of the firm
and the bank statement shows that from the firm’s account, a sum of Rs.8,10,000/-
was credited to the 1st respondent’s account on 12.12.2014. Even P.W1, in his
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evidence did not deny the receipt of the said amount, but merely stated that he
needed to consult his auditor in this regard. The bank statement also clearly
establishes the relationship of creditor and debtor between the appellant and
respondents 1 and 2. Therefore, on a cumulative analysis of the evidence on
record, I am of the view that Ex.A4 was executed only as a security for the loan
availed by the appellant and that the sales in favour of the 1 st respondent executed
by the 2nd respondent are sham and void documents. The learned counsel for the
respondent submitted that the appellant ought to have prayed for setting aside
Ex.A4, as that is the foundational document for the subsequent transactions. In my
view, the respondents submission does not hold good, since the absence of a
declaration or even a specific prayer to set it aside, does not alter the legal position
of either party in the facts of this case. In view of the common claim made to the
suit property by both parties, I am of the view that legal position of the parties
being very clear, it is not necessary to pray for setting aside the Power of attorney.
29.One more important aspect which I find disentitles the respondents to the
discretionary relief of declaration of title is the patently false case set up by them
regarding the possession of the suit properties. The evidence on record clearly
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shows that the respondents plea that the appellant was in permissive possession on
Waram basis was absolutely false. Therefore, the respondents having approached
the Court with unclean hands, I am of the view that they are not entitled to the
discretionary relief of declaration of title. Hence, I answer issue No.1 against the
respondents and issues 2 and 3 in favour of the appellant.
Issue No.4:Whether the suit is barred by limitation?
30.Section 58 of the Limitation Act reads as follows:
“Description of suit Period of limitation Time from which
period beings to run
58. To obtain any other Three years When the right to sue
declaration. first accrues.”30.1.The Hon’ble Supreme Court in the case of State of Punjab and others
vs. Gurdev Singh, reported in (1991) 4 SCC 1, while construing Section 58, held
as follows:
“6……The words “right to sue” ordinarily mean the right to
seek relief by means of legal proceedings. Generally, the right to
sue accrues only when the cause of action arises, that is, the right
to prosecute to obtain relief by legal means. The suit must be
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there is a clear and unequivocal threat to infringe that right by the
defendant against whom the suit is instituted.”
30.2.Similarly in the case of Daya Singh and another vs. Gurdev Singh
(DEAD) BY LRS. and others, reported in (2010) 2 SCC 194 held as follows:
“13. Let us, therefore, consider whether the suit was barred
by limitation in view of Article 58 of the Act in the background of
the facts stated in the plaint itself. Part III of the Schedule which
has prescribed the period of limitation relates to suits concerning
declarations. Article 58 of the Act clearly says that to obtain any
other declaration, the limitation would be three years from the date
when the right to sue first accrues.
14. In support of the contention that the suit was filed within
the period of limitation, the learned Senior Counsel appearing for
the appellant-plaintiffs before us submitted that there could be no
right to sue until there is an accrual of the right asserted in the suit
and its infringement or at least a clear and unequivocal threat to
infringe that right by the defendant against whom the suit is
instituted. In support of this contention the learned Senior Counsel
strongly relied on a decision of the Privy Council
in Bolo v. Koklan. Their Lordships of the Privy Council observed asPage No:30 of 36
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“… There can be no ‘right to sue’ until there is an accrual of the
right asserted in the suit and its infringement, or at least a clear
and unequivocal threat to infringe that right, by the defendant
against whom the suit is instituted.”
15. A similar view was reiterated in C. Mohammad
Yunus v. Syed Unnissa in which this Court observed: (AIR p. 810,
para 7)
“7. … The period of six years prescribed by Article 120 has to
be computed from the date when the right to sue accrues and there
could be no right to sue until there is an accrual of the right
asserted in the suit and its infringement or at least a clear and
unequivocal threat to infringe that right.”
In C. Mohammad Yunus, this Court held that the cause of action for
the purposes of Article 58 of the Act accrues only when the right
asserted in the suit is infringed or there is at least a clear and
unequivocal threat to infringe that right. Therefore, the mere
existence of an adverse entry in the revenue records cannot give rise
to cause of action.
16…… Accordingly, we are of the view that the right to sue
accrued when a clear and unequivocal threat to infringe that right
by the defendants……”
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31.Applying the aforesaid legal principles, let me examine the facts of this
case. The evidence on record discloses that it is only when the respondents tried to
mutate the revenue records in their favour, the appellant came to know of the
illegal design of the respondents. The sale in favour of the 1 st respondent was
executed in 2013. The 1st respondent had admittedly not taken any steps to mutate
the revenue records in his favour. P.W1 in his cross examination stated as follows:
@fpuhk epu;thf mjpfhupaplk ; tUtha ; gjpt[fspy ; bgau ; khw;wk;
bra;antz;Lbkd;W brhd;ndd;/ mjd;gpwF gpujpthjp ntfkhfptpl;lhu;/@
32.From the evidence of the 1st respondent, it is clear that soon after he
initiated steps to mutate the revenue records, the appellant swung into action. The
appellant stated that he came to know of the sales in 1 st respondent’s favour, from
the EC taken out by him. The trial Court in the absence of a copy of the EC,
refused to accept the appellant’s case that he came to know of the sales in favour of
the 1st respondent only from the EC’s. Merely because the appellant failed to file
the EC’s it cannot be said that he had knowledge of the sales in favour of the 1 st
respondent. The respondents having taken the plea of bar of limitation, ought to
have placed some records to prove the same. There is no evidence to impute
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knowledge of Ex.A6 & Ex.A7, to the appellant, prior to the filing of the suit. On
the contrary, the above evidence of P.W1 shows that immediately after the
appellant came to know that the 1 st respondent was attempting to mutate the patta
in his favour, he swung into action. It will be relevant to note here that the bank
statement of the appellant clearly establishes that even after the sale in favour of
the 1st respondent, the appellant paid Rs.8,10,000/- to him. If the appellant had
knowledge of the sale in favour of the 1 st respondent, he would not have paid the
amount into the 1st respondents account after the sale in his favour. The Trial Court
in my view, failed to appreciate properly the evidence in this regard.
33.In the absence of clear cut evidence on the side of the respondents, that
the appellant had knowledge of the sales in favour of the 1 st respondent,
immediately after the sales in 1st respondent’s favour, I am of the view that the suit
is is not barred by limitation. The judgment relied on by the learned counsel for
the respondents in the case of Board of Trustees of Port of Kandla vs. Hargovind
Jasraj and another, reported in (2013) 3 SCC 182 is clearly inapplicable to the
facts of this case, since in the said case, the Hon’ble Supreme Court, on the basis of
the letter of the respondent therein, held that the respondent had knowledge of the
termination of the lease, as per his own letter dated 22.02.1979, and so the suit
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filed 18 years later was clearly barred by limitation. Hence, I answer issue No.4
in favour of the appellant.
Issue No.5:Whether the appellant is in possession of the properties in his own
right, if so, is he is entitled to relief of injunction.
34.The appellant’s categorical contention is that the suit properties were in his
possession and never delivered to the 1st respondent. The trial Court on the basis of
its finding that the 1st respondent was the owner of the suit property, found that the
appellant was not entitled to injunction against the true owner and directed
recovery of possession. The appellant categorically denied that he was in
possession of the properties on Waram basis. At the outset, it would be relevant to
note here that there is absolutely no evidence on the side of the respondents to
prove their plea that the appellant was in possession of the suit properties on
Waram basis. No document is filed to prove the payment of the alleged Waram. I
have already found above that possession was not delivered to the respondents.
The possession of the appellant is admitted by the respondent but absolutely no
iota of evidence is produced to show that the appellant is in permissive possession
of the suit property on Waram basis. On the other hand, the appellant has produced
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Ex.B10 to Ex.B13 to show that the revenue records namely, A-register, patta and
Adangal stand in his name. I therefore find that the appellant is in possession of the
suit properties and as such, is also entitled to the relief of permanent injunction.
35.When this Court was about to pronounce the judgment during June 2026,
the learned counsel for the appellant made a mention before this Court that the sole
appellant died and he sought time to bring the legal heirs of the deceased appellant
on record. Accordingly, permission was granted. The legal heirs were brought on
record in the aforesaid Appeal Suits vide order of this Court dated 25.06.2026
made in CMP.Nos.15508 and 15503/2026.
36.In view of the above discussions, the common judgment and decree of
the Court below, made in OS.Nos.106 and 229 of 2020, are set aside and the First
Appeals in AS.Nos.365 and 366 of 2023 are allowed. No costs. Consequently,
the connected miscellaneous petitions are closed.
08.07.2026
Internet:Yes
Index:Yes/No
Speaking Order:Yes/No
Neutral Citation:Yes/No
dsn/AP
To
The Additional District and Sessions Judge, Cuddalore.
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N.MALA,J.
Dsn / AP
Common Judgment in
AS.Nos.365 and366 of 2023
Delivered on: 08.07.2026
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