T METILDA PACKIAM Vs. DIRECTOR OF SCHOOL EDUCATION

JUDGEMENT

(1.) THE plaintiff in O. S. No. 88 of 1997 on the file of the Court of the district Munsif of Srivaikundam is the appellant herein. The plaintiff had filed the suit in respect of the plaint schedule property for bare injunction on the ground that he is in possession of the plaint schedule property.

(2.) THE short facts of the averments in the plaint relevant for the purpose for deciding this appeal are as follows:-The plaint schedule property originally belonged to one Vaikunta Iyer under a sale deed dated 26. 10. 1950. After the demise of the said Vaikunta Iyer, his legal heirs have partitioned that family properties in which the plaint schedule property was allotted to the share of Vaikunta Iyer's son balasubramanian. The said partition deed was registered on 08. 10. 1973. The daughter of Vaikunta Iyer namely Rajammal had executed a release deed on 09. 10. 1973 releasing her interest in the suit property in favour of balasubramanian. From the year 1973 onwards, the said Balasubramanian was in possession and enjoyment of the plaint schedule property as an absolute owner. Balasubramanian had executed a registered power of attorney on 29. 01. 1996 in favour of one Durairaj son of Sorimuthu Thevar of Manappadai veedu, palayamkottai who had executed a sale deed in respect of the plaint schedule property in favour of the plaintiff on 07. 02. 1996. From the said date of sale, the plaintiff is in possession and enjoyment of the plaint schedule property by paying house tax and electricity consumption charges. The plaintiff has simply mortgaged the suit property on 29. 09. 1997, in favour of the second defendant and in view of the interest, the second defendant was put in possession of the suit property. The first defendant is an utter stranger to the suit property and he is not having any right or title in respect of the suit property. On 12. 10. 1997, the first defendant attempted to interfere with the plaintiff's possession and enjoyment of the suit property and had threatened the second defendant to dispossess him illegally and forcibly. Hence, the suit.

(3.) THE first defendant in his written statement would contend that the alleged power of attorney executed by Balasubramanian in favour of Durairaj dated 29. 01. 1996 is not a valid document. The sale deed dated 07. 02. 1996 said to have been executed by the said Durairaj as power of attorney of balasubramaian in favour of the plaintiff is ab initio void. The alleged mortgage in favour of the second defendant is also invalid under law. This defendant has not trespassed into the suit property. The plaint schedule property was originally let out to one Saravanan in the year 1989 for rent. The said Balasubramanian was residing in the up-stairs portion of the plaint schedule property and Saravanan was the tenant in the ground floor. Balasubramanian was insisting Saravanan to vacate and hand over the possession of the ground floor on the ground of owner's occupation. But, Saravanan was resisting the claim of Balasubramanian by giving one reason or other. Subsequently, the owner of the plaint schedule property, Balasubramanian had entered into a sale agreement with one Narayanathevar on 20. 12. 1995 for a sale consideration of Rs. 46,000/ -. On the date of sale agreement itself, balasubramanian had received Rs. 2,000/- from Narayanathevar as advance of the purchase money. In the meantime, the tenant Saravanan gave notice in Kathiravan daily dated 02. 01. 1996, stating that he had purchased the suit property from balasubramanian. In turn, Balasubramanian had preferred a complaint against the said Saravanan with Srivaikuntam Police Station on 13. 01. 996, which was registered under Crime No. 5/1996. Since Naryanathevar could not perform his part of contract as per the sale agreement dated 20. 12. 1995, Balasubramanian had executed a sale deed in favour of the second defendant in respect of the plaint schedule property on 19. 01. 1996. After the purchase, the first defendant had requested Saravanan to vacate and hand over the possession of the plaint schedule property to him. After knowing that, the original owner balasubramanian had executed the sale deed in favour of the first defendant, the plaintiff clandestinely, with the connivance of Durairaj had created a sale deed dated 07. 02. 1996 in favour of him in respect of the plaint schedule property. After the execution of the sale deed in favour of the first defendant on 19. 01. 1996 in respect of the plaint schedule property, Durairaj as power of attorney of Balasubramanian had nothing to convey under the sale deed dated 07. 02. 1996 in favour of the plaintiff. The sale deed dated 07. 02. 1996, the mortgage deed dated 29. 09. 1997 are all concocted documents created for the purpose of this case. At the time, when Saravanan was away from the plaint schedule property, the plaintiff along with the second defendant had broken upon the lock of the plaint schedule property and trespassed into the same. In this connection, Saravanan had preferred a complaint with Srivaikuntam Police against the plaintiff which was registered under Crime No. 37 of 1997. After the complaint, the plaintiff had let the second defendant to reside in the plaint schedule property. Hence, the suit is liable to be dismissed. The second defendant remained exparte.