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TMI Blog2021 (8) TMI 1416X X X X Extracts X X X X X X X X Extracts X X X X ..... ch other with the technicalities go and substantive justice shall revive. Since the Power of Attorney itself was not adjudicated before the authority concerned and as such, the Power holder has no authority to depose on behalf of the plaintiff. Section 18 of the Indian Stamp Act, mandates the adjudication before the registering authority when the Power of Attorney is executed outside India. Therefore, the Power holder cannot maintain the suit, unless the Power of Attorney is adjudicated before the registering authority. This Appeal Suit is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff., 4. On receipt of the summons, the defendants 1 and 2 failed to appear and as such, they were set ex-parte. 5. Resisting the plaint, the defendants 3 to 6 filed their written statement stating that third defendant purchased a plot No. A.18 from the first defendant by the registered sale deed dated 03.11.2008 and registered vide Document No. 8419 of 2008 at the office of the Sub Registrar, Sembium. The vendor of the third defendant purchased the plot No. A.18 by the registered sale deed dated 28.10.1966 registered vide document No. 4237 of 1966 from one Chinnasamy Naidu. In the said sale deed, the boundaries and the layout annexed does not have plot No. A.19A. The plaintiff purchased the plot No. A.19 from Rosy George by the sale deed dated 04.11.1981 from the said Chinnasamy Naidu. The western boundary of the plot No. A.19 has been shown as A.19-A. Therefore, the vendor of the third defendant as well as the plaintiff have no identity of the property. When the plaintiff admitted to encroach the plot No. A.18, the vendor of the third defendant filed the suit in O.S. No. 5070 of 1992 and the same was decreed in favour of the vendor of the third defendant. Therefore, neither t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, no opportunity was given to the appellants/3 to 6 defendants before framing the additional issues. Those issues were framed on the date of judgment and while decreeing the suit. Even assuming that, it is valid there is no specific clause to file the suit by the Power of Attorney holder. Therefore, the Power of Attorney cannot maintain the suit and he has no right to depose on behalf of the Principal. The defendants 3 to 6 never encroached any portion of the suit property. As per the sale deed, the third defendant purchased the plot No. A.18 and put up construction and obtained approval to construct apartments in respect of the plot No. A.18 and completed the construction. Thereafter all the apartments were also sold out in favour of the defendants 4 to 6. The Court below, though decreed the suit in respect of the plot No. A.19 in favour of the plaintiff, there is no whisper about the recovery of possession from the defendants 3 to 6. 10. Considering the above, while pending this Appeal Suit, this Court appointed an Advocate Commissioner to inspect the suit property and survey the suit property with the help of approval plan by the Surveyor. On several occasions, the Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led for decree with regards to the plot No. A.19, the Court below need not answer the issue of recovery of possession. The non adjudication of the Power of Attorney, which was marked as Ex. A.6 is not fatal to the suit. It is settled law that the substantive justice and technicalities are fitted against each other with the technicalities go and substantive justice shall revive. Further, the plaintiff never disputed the Power of Attorney, which was executed in favour of P.W.1. The plaintiff proved his title through Ex. A.1 to Ex. A.3. He further submitted that in fact, the defendants categorically admitted in their written statement itself that the plaintiff purchased the suit property from his vendor Rosy George by the registered sale deed dated 04.11.1981. The said Rosy George purchased the suit property from Chinnasamy Naidu by the registered sale deed dated 22.09.1967. While pending the suit, the plaintiff filed a petition seeking amendment with regards to the boundary of the suit property on Eastern side. As per the amendment, the suit property is situated at Eastern side by plot No. A.20. Aggrieved by the same, the appellants/defendants 3 to 6 did not prefer any revision and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e construction. He completed entire construction of apartments and also sold out the flats in favour of the defendants 4 to 6. If at all any dispute in respect of identifying the suit property, the plaintiff ought to have first identify the suit property and filed the suit. Admittedly, the plaintiff is not clear about the identity of the property and in fact after filing the suit, the plaintiff filed a petition for amendment in respect of boundary and amended as East by plot No. A.20. Though the plaintiff prayed in respect of plot No. A.18, filed the suit as against the defendant with regards to the plot No. A.19. Admittedly, both had purchased both the plot Nos. A.18 and A.19 respectively. Therefore, without identifying the correct plot, the plaintiff cannot sustain the suit for recovery of possession. 15. The third defendant categorically admitted that the plaintiff purchased the suit property by the registered sale deed and as such, he is entitled for any prayer with regards to the plot No. A.19. Whereas, the plaintiff claimed recovery of possession as against the defendants 3 to 6, as if they encroached the suit property and put up construction. In fact while pending the Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r view is also fortified by a decision of the Karnataka High Court in Perikal Malappa v. T. Venkatesh Gupta, (AIR 2007 (NOC) 12 (KAR)) wherein the facts involved are identical." 20. The learned counsel for the first appellant/third defendant also relied upon the un-reported judgment of this Court in S.A. No. 2033 of 2004 (Lakshmanan v. Veerakathi Chettia (died), in which it has been held as follows:- "13. The learned counsel for the appellant would submit that the parties have identified the suit property and there is no dispute regarding the same. But, I find it very difficult to accept the same. Any decree that may be passed by a civil court shall be executable and the same shall not be the source for another litigation or confusion. In my considered view, unless the suit property has been properly described, a workable decree cannot be granted by the civil court. In the instant case, the learned counsel for the appellant would himself admit that the western boundary of the suit property has not been properly described in the plaint schedule. In such an event, I am of the view that with the wrong four boundaries and with the wrong description of survey number, a decree ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n C.R.P. (PD) No. 1795/second defendant and before Notary Public by respondent in C.R.P. (PD) No. 1796/third defendant. The power of attorney is not registered as per Section 18 of Indian Stamp Act and said power of attorney is not a valid one. The learned Judge, allowed the applications on the ground that the power of attorneys are executed before the consulate officer and Notary Public and they need not be registered. The learned Judge has committed an irregularity in allowing both the applications. The learned Judge failed to see that any power of attorney executed outside India it is to be adjudicated in India as per the provisions of Section 18 of the Indian Stamp Act. The power of attorney having failed to get adjudicated by a competent Sub-Registrar, is not entitled to represent the respondent, as power of attorney are not valid." 25. Accordingly, the Power of Attorney executed outside India has to be adjudicated in India as per the provisions of Section 18 of the Indian Stamp Act. The Power of Attorney having been failed to get adjudicated by a competent authority is not entitled to represent the plaintiff as Power holder and it is not valid. Whereas, the Court below ..... X X X X Extracts X X X X X X X X Extracts X X X X
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