JUDGMENT
Prabha Sridevan, J.
1. The defendants are the appellants in the above second appeal. One Alagar Thevar @ Azhagarsamithevar filed the suit in O.S.No.273 of 1986 on the file of District Munsif, Paramakudi for declaration of title and recovery of possession.
2. According to the plaint averments, the suit property originally belonged to Alagar Thevar’s father Ramu Thevar and Ramu Thevar had four sons and three daughters. The plaintiff is one of the sons. Out of three daughters, two daughters died without issue and Angammal is one of the daughter. Angammal also died about ten years prior to the suit. Angammal had three sons and one daughter. The said Angammal’s daughters’ husband and the sons are the appellants herein. Ramu Thevar died 60 years prior to the suit. The plaintiff alone is entitled to the suit properties and since the plaintiff is normally residing in Burma, he had entrusted the suit properties to Angammal and some other properties to Angammal’s son Manisamy Thevar. After Angammal died, the first appellant is in permissive enjoyment of the suit property. When the plaintiff returned to India recently, sometime prior to the suit, he realised that the appellants were trying to cheat him of the property by concocting documents fraudulently and therefore some notices were issued to the appellants as well as Manisamy Thevar. After receiving the notice, the said Mani Samy Thevar entrusted the suit properties to the plaintiff. Since the appellants did not comply with the demand made in the notice, the suit was filed. The appellants denied the suit claim stating that none of Ramu Thevar’s sons are alive and Angammal was the only legal heir to Ramu Thevar’s estate and she had been enjoying the property absolutely from 1956. Angammal had executed a Will and Manisamy who was aggrieved by this had deliberately set up these proceedings to the knowledge of the appellants. No such person by name of the plaintiff ever lived in the suit village and no one had asked Angammal to look after the property and from 1974, when Angammal died, the appellants 2 to 4 became entitiled to the suit properties under the Will marked as Ex.B.3 dated 5.2.1973. Any documents that are marked by the plaintiff must have been concocted with the help of Manisamy and therefore the suit properties cannot be recovered by the plaintiff. It is also claimed that the suit was barred by limitation.
3.The trial court on a detailed consideration of oral and documentary evidence, dismissed the suit and therefore the plaintiff filed the appeal which was allowed and hence the second appeal has been filed.
4. The learned counsel for the appellants would submit that when the defendants’ case is that there was no such person as Alagar Thevar @ Alagarsamy Thevar and that the appeal filed by one Palani @ Subramaniam ,P.W.2 as his power of attorney must be dismissed on that ground alone. The court below ought to have seen the evidence of P.Ws.1 and 2 which clearly shows that there is no such person exists. Therefore, the suit itself is born of fraud. According to the learned counsel, the appellate court had not considered the ground on which the trial court had dismissed the suit.
5. Learned counsel read out the variations in the evidence of PW.1 and 2 as well as D.W.1 regarding the fraud committed by the parties. Learned counsel also submitted that this is a case which was set up by Manisamy, the brother-in-law of the first appellant. The trial court discussed the evidence as follows:
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P.W.1 is one Paramasivathevar who is said to be the distant relative of plaintiff. Ex.B.2 is a mortgage deed of the year 1919 executed by one Ramu Thevar. The minors sons names are also found in the said exhibit. The trial court finds that in the 1919 document, the name of the plaintiff is not found and if the age of the plaintiff is taken to be about 70 years as seen from the plaint, then the plaintiff should have been about 3 years old in 1919 and his name should have been mentioned in Ex.B1. The trial court observes that there is wide discrepancy regarding the plaintiff in the oral and documentary evidence marked on the side of the plaintiff. The trial court correctly holds that when the identity of the party is seriously disputed, it is the duty of the plaintiff to discharge the burden of proof. P.W.1 in his examination admits that he has no knowledge about the plaintiff’s family nor does he know anything about the wife or children of the plaintiff. P.W.2 had stated that he saw the plaintiff only on the date on which the power of attorney was executed and that he did not know anything about the plaintiff’s wife or plaintiff. The trial court observes that from this a strong suspicion arises whether the said Manisamy Thevar, the brother-in-law of the first appellant, would have set up these two witnesses to defeat the rights of the appellants. The trial court has come to the conclusion that there is no proof regarding the identity of the plaintiff, and a dispute was raised as an issue, yet the plaintiff did not choose to appear before the court and to discharge the doubt, it is difficult to accept the truth of the plaintiff’s case.
6.The appellate court appears to have proceeded on conjecture. The appellate court observes that merely because P.W.1 does not know about the family of the respondent in Burma, it does not mean that he did not know about Ramu Thevar and the appellate court surprisingly says that the admission by P.W.2 that he had seen the plaintiff only on the date when the power of attorney was executed must be a slip of tongue and nothing else. This approach is clearly erroneous. When the appellants seriously dispute the existence of respondent and have stated categorically that since Ramu Thevar was dead, the power of attorney deed has been concocted with the help of Manisamy Thevar and that no such person as Alagarsamy @ Alagarsamy Thevar, Son of Ramu Thevar, ever lived in the village, or left for Burma, some documents should have been produced and some strong evidence should have been let in by the respondent to remove this doubt. P.W.1’s evidence is as follows:
@jhth brhj;Jf;fs; thjpap;d jfg;gdhh; uhKj;njtUf;F ghj;jpag;gl;lJ/ uhKj;njth; 60 tUl’;fSf;F Kd;dhy; ,we;Jnghdhh;/ jhthr;brhj;Jf;fs; uhKj;njtUf;F gpd;dhy; thjpapd; ghj;jpaj;jpy; ,Ue;jJ/ ,g;nghJ brhj;Jf;fis gpujpthjpfs; mDgtpj;J tUfpwhh;fs;/@
P.P.W.1 would speak of the suit properties in the possession of the plaintiff’s father Ramu Thevar and presently in the possession and enjoyment of the appellants, Whereas as regards the family of the respondent, P.W.1 does not know whether the plaintiff’s wife is an Indian or Burmese, he does not know how many children the plaintiff has. He also says that the power of attorney is not related to the plaintiff. The suggestion is put to him that he gives evidence on payment of money and he is called as “bgha;rhl;rp gukrptj;njth;”and a suggestion is also to be made regarding the dispute with Manisamy Thevar. The evidence of P.W.2 who is the power of attorney agent is more destructive of the respondent’s case. According to him, the respondent herein is a Burmese, he was aged about 73 years and he handed over the suit documents to him when the he came to India for filing the suit. He also states that the respondent used to visit India often from Burma. His evidence regarding the suit properties is clear, but it is also clear that P.W.2 does not know anything about the respondent. However, in the cross-examination, he had stated that the power of attorney deed was executed in his favour because he was found trust-worthy by the respondent. This witness does not know why the respondent could not come and conduct the case. A question has been put to him that if the plaintiff appeared in court, it would be clear that he has no connection to the suit property, nor any information regarding the suit. He has no knowledge about his wife or his family. But what is virtually P.W.2’s evidence is that he admits that he saw the plaintiff for the first time when the power of attorney was executed. The trial court correctly posed the question as to why a person would execute a power of attorney deed in favour of a stranger. This person, who has come from Burma only once to India is alleged to have handed over all the suit documents and executed the power of attorney in favour of a person whom he saw for the first time. It is clearly unbelievable. It is not open to the appellate court that this admission of the witness must have been by mistake. When a serious charge is made against the plaintiff that the case has been filed by a non existent person, it is the duty of the court to see whether the identity is established beyond doubt. The court cannot go to the aid of the property grabbers, who set up a case in the name of a person who chooses not to appear before the court and whose identity itself is not established. The other evidence need not be traversed in the second appeal.
7.The Substantial question of law which was framed at the time of admission with regard to the identity of the plaintiff as the son of Ramu Thevar in the absence of documentary evidence must be answered in favour of the appellants.
8.The respondent though served, did not choose to appear either in person or through counsel.
9.The Judgment and decree of the appellate court is set aside. The Judgment of the trial court is restored. The second appeal is allowed. No costs.