M ABDUL MUTHALIP Vs. M SAMSUDEEN

JUDGEMENT

(1.) THE averments in the plaint is as follows: THE plaintiff had purchased the suit property under a registered sale deed dated 07.03.1985 and from that onwards the plaintiff was in possession and enjoyment of the suit property as an absolute owner. In the year 1989, the plaintiff made arrangements to settle at Delhi on account of his business. Hence he appointed the defendant as the general power of attorney to manage the suit properties, by a registered Power of Attorney, dated 15.05.1989. THE plaintiff was under the bonafide impression that the defendant is managing the properties with due care and caution as his power agent. Hence, he did not visit the suit properties for a long time.

(2.) THE plaintiff returned to his native place in the month of January 2002 and sought the defendant to handover the possession of the suit property and also the power deed. But the defendant gave a evasive reply. THEn he came to know that the defendant himself had purchased the suit properties. Immediately, the plaintiff applied for certified copy of the power deed. THE plaintiff never authorised the defendant to execute a sale deed. THE plaintiff never received any consideraion from the defendant herein towards the sale of the suit property. THE sale deed in favour of the defendant is vitiated by fraud. So, the sale deed cannot confer any title in favour of the defendant. THE sale deeds were executed without any proper authority and the same is invalid and is a "Non-est factum" and cannot create any title in favour of the defendant. Hence the plaintiff can ignore the same and need not seek to set aside. Hence the plaintiff is constrained to file a suit for declaration that the sale deed dated 06.11.2000 created by the defendant on the strength of general power of attorney is invalid and cannot create any title to the defendant and further for declaration that the plaintiff is the absolute owner of the suit property and for recovery of possession. Hence he prayed for a decree.

(3.) NO cause of action arose for the suit and the plaintiff has not come to the court with clean hands. The defendant wanted the sale deed in his favour from the plaintiff in the year 1989 itslef and the plaintiff had also agreed to execute the same whenever both of them came to the suit village. The defendant had been senting amounts to the plaintiff on various dates to the tume of Rs.1,39,500/- through cheque. The defendant had also given Rs.60,000/- for the plaintiff's daughter marriage along with 10 sovereigns of gold. This fact was known to one Sambandam, son of Paramasivam. The plaintiff had written a letter to the defendant dated 18.11.2000, stating that he was willing to sign the sale deed and demanded the sale deed to be brought to Delhi for his signature. Since the defendant is not having any leave, he departed to Saudi Arabia on 01.12.2000. The plaintiff has also written several letters to the defendant demanding money and assurance to the execution of the sale deed to the defendant. The plaintiff's aim was only to grab money from the defendant and the plaintiff has received money from the defendant then and there from 29.11.1989 to 01.03.1994 through cheques and cash directly from the defendant. There is no fraud on the part of the defendant. The plaintiff has lost his title and the defendant is in possession and enjoyment of the same for more than 15 years. The plaintiff's notice to cancel the power deed has not been properly addressed to the defendant's address. The suit was not properly valued. Hence he prayed for the dismissal of the suit.