Bombay High Court

Pravin Bhaskarrao Borkute vs Smt. Kavita Wd/O Nagesh Ambhore on 24 August, 2017

Bench: A.S. Chandurkar

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No.387 of 2013


 Pravin Bhaskarrao Borkute,
 aged about 50 years,
 occupation - business,
 resident of Plot No. R-20,
 Laxmi Nagar, Nagpur.                           .....           Appellant
                                                              Defendant



                                  Versus


 Smt. Kavita widow of Nagesh
 Ambhore,
 aged about 55 years,
 occupation - service,
 resident of 48,
 Doctors' Colony,
 Chhatrapati Nagar,
 Nagpur.                                        .....        Respondent


                                *****
 Mr. R. M. Sharma, Adv., for the appellant.

 Mr. Masood Shareef, Adv., for respondent.

                                   *****


                                CORAM :        A.S. CHANDURKAR, J.

                                Date       :   24th August, 2017




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 ORAL JUDGMENT:

01. This appeal under Section 100 of the Civil Procedure Code,

1908, is preferred by the original defendant who is aggrieved by the

decree passed by the trial Court by which the respondent-plaintiff has

been declared to be the owner of the suit property and the appellant

has been restrained from obstructing her possession or creating third-

party rights therein.

02. It is the case of the plaintiff that Khasra No. 58/1-K

admeasuring about 10.8 acres situated at Mouza - Somalwada, Tq. &

Distt. Nagpur, was owned by her father. After the death of her father -

Bhaskarrao, he was survived by his widow, two sons and four

daughters. A family settlement was arrived at on 1st June, 1987 by

which the aforesaid property was equally divided amongst the legal

heirs. Each member of the family became owner of 1/7th share. The

plaintiff was allotted 0.63 Are land from aforesaid property. Each legal

heir was placed in possession of his/her respective shares. According

to the plaintiff, the said property was the subject-matter of

proceedings under the Urban Land Ceiling Act, 1984. For prosecuting

those proceedings, a Power of Attorney was executed by the family

members in favour of the defendant on 15th May, 1998. Thereafter,

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on 21st December, 1998, a portion of the aforesaid land was declared

as surplus, while the remaining portion was declared as retainable

land. On 1st February, 1999, the plaintiff along with her sisters and

mother entered into an Agreement of Development & Sale with the

defendant who was the proprietor of M/s. Pravin Bhaskarrao Borkute,

Civil Engineer & Contractor. As per this agreement, the defendant

agreed to pay a sum of Rs. 12,50,000/- to each of his sisters. In

addition, it was agreed that he would provide a developed plot

admeasuring 10,000 sq. ft., to each of his sisters. This was the agreed

consideration for the 1/7th share of the plaintiff. Thereafter, the

defendant allotted Plot No. R-5 admeasuring about 10,850.10 sq.ft.,

from the aforesaid property to the plaintiff. Though the amount of

Rs.12,50,000/- was paid to the plaintiff, the subsequent part of

consideration with regard to providing a developed plot admeasuring

about 10,000 sq.ft., was not complied with. The plaintiff learnt that the

defendant on the basis of the Power of Attorney granted to him was

intending to alienate part of the suit property. Hence, after issuing

notice on 6th May, 2003 and revoking the Power of Attorney, she filed

a suit for declaration that she was the owner of the suit property and

the defendant had no right to deal with the same, in any manner,

whatsoever. A perpetual injunction to protect her possession and for

restraining the defendant from creating third-party rights was also

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sought.

03. The defendant filed his Written Statement and did not deny

the Agreement of Development & Sale dated 1st February, 1999.

According to him, on 28th November, 2001, the plaintiff had received

entire consideration on account of which she had issued a receipt. The

plaintiff was not in possession and had, in fact, sought the same as per

the letter dated 20th November, 2002. It was then denied that Plot No.

R-5 was allotted to the plaintiff or that she was put in possession of the

same. According to the defendant, the Power of Attorney as granted

was irrevocable and hence, the relief as sought in the suit was not

liable to be granted.

04. After the parties led evidence, the trial Court held that the

plaintiff had proved her title to the suit property and that she was in

lawful possession of the same. It was held that the Power of Attorney

could be revoked and that the plaintiff had received only part

consideration of Rs. 12,50,000/-. On that basis, the trial Court decreed

the suit and granted the prayer as made.

05. In the appeal filed by the defendant, the appellate Court

confirmed these findings and dismissed the appeal. Being aggrieved,

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the defendant has filed the present appeal.

06. The following substantial questions of law were framed while

admitting the Second Appeal:-

"1. Whether the first Appellate Court erred in law in confirming the finding recorded as to lawful title of the plaintiff as also possession when the prayer in the suit was for declaration and injunction?

2. Whether the first Appellate Court erred in confirming the finding in the context of the submission that the suit was not maintainable?

3. Whether the impugned Judgment and Order suffers from perversity?"

07. Shri R. M. Sharma, learned counsel for the appellant,

submitted that both the Courts committed an error in holding that the

plaintiff had lawful title to the suit property and that she was in

possession of the same. As per the agreement at Exh.53, the

consideration was paid to the plaintiff and in lieu thereof, the plaintiff

did not have a lawful title over the suit property. It was submitted that

in view of provisions of Section 202 of the Contract Act, 1872, the

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Power of Attorney at Exh.66 was not revocable. By virtue of the

agreement at Exh.53, an interest was created in favour of the

defendant and, therefore, the Power of Attorney was irrevocable.

According to him, the plaintiff was not in possession of Plot No. R-5

which could be seen from the letter issued by her at Exh.72 calling

upon the defendant to put her in possession. It was, thus, submitted

that as the plaintiff was in possession, the suit for declaration

simiplicitor was not maintainable. The Courts committed an error by

relying upon stray sentences in the reply at Exh.83 for holding that the

plaintiff had title to the suit property and was also in possession. It

was then submitted that Plot No. R-5 was never allotted to the plaintiff.

The document at Exh.77 was not prepared by the competent Authority

that could have allotted the said plot and this fact was clear from the

deposition of PW 2 examined by the plaintiff. It was, thus, submitted

that by virtue of the agreement at Exh. 53, coupled with the Power of

Attorney at Exh.66, the defendant was in possession and he was

entitled to protect the same in view of provisions of Section 53A of the

Transfer of Property Act. In support of his submissions, the learned

counsel placed reliance on the decisions in [1] Seth Loon Karan

Sethiya Vs. Ivan E. John & others [AIR 1969 SC 73], and [2]

Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust,

Virudhunagar Vs. Chandran & others [(2017) 3 SCC 702]. It was,

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thus, urged that the findings recorded by both the Courts being

perverse, they were liable to be set aside.

08. Per contra, Shri Masood Shareef, learned counsel for the

plaintiff, supported the impugned judgments. According to him, the

findings sought to be challenged by the defendant were pure findings

of fact. The question as to whether the plaintiff was in possession was

again a question of fact which had been answered by both the Courts

in favour of the plaintiff. It was submitted that these concurrent

findings of fact were not open for scrutiny nor they were liable to be

disturbed in the Second Appeal. For said purpose, the learned counsel

placed reliance on the decisions in [1] Mohan Lal Vs. Nihal Singh

[AIR 2001 SC 2942], [2] Muslim Jamath of Eachampatti Vs.

Rahamtullah Shuttari & others [(2005) 10 SCC 160], and [3]

Bhuri Bai & others Vs. Ramnarayan & others [(2009) 4 SCC 56].

It was then submitted that the finding recorded by both the Courts that

the plaintiff was in possession was a correct finding based on various

documents on record. He referred to the deposition of the defendant

that Plot No. R-5 had been allotted to the plaintiff. From the other

documents at Exhs.54, 77, 78 and 79, it was clear that it was the

plaintiff who was in possession. After the orders were passed in the

proceedings under the Urban Land Ceiling Act, 1984, the surplus land

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vested with the State Govt., and, therefore, it could not be said that

the defendant was in exclusive possession. The ownership was with

the plaintiff and other parties who had entered into the Development

Agreement at Exh.53 as Party No.1. Only the rights of developing the

property and thereafter selling the same were conferred on the

defendant, but this was subject to payment of the entire consideration.

Only part consideration of Rs.12,50,000/- was paid. The plaintiff was

not put in possession of 10,000 sq. ft. developed land as was agreed.

Hence, the title of the plaintiff did not come to an end. The Power of

Attorney had been rightly revoked by the plaintiff and it could not be

said that the same was irrevocable in the light of provisions of Section

202 of the Contract Act, 1872. In that regard, the learned counsel

placed reliance on the decisions in [1] Anathula Sudhakar Vs. P.

Buchi Reddy (dead) by LRS & others [ (2008) 4 SCC 594] and [2]

State of Andhra Pradesh & others Vs. Star Bone Mill &

Fertiliser Company [ (2013) 9 SCC 319]. He further submitted that

the decisions relied upon by the defendant were clearly

distinguishable. The conduct of the defendant of approbating and and

reprobating also could not be ignored. It was, therefore, submitted

that both the Courts rightly held in favour of the plaintiff and,

therefore, there was no merit in the appeal.

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09. I have heard the learned counsel for the parties at length

and with their assistance, I have also perused the records of the case.

10. The Agreement of Development & Sale [Exh.53] is the basic

document on which the parties have based their claims. This

agreement dated 1st February 1999 was entered into between the

mother of the plaintiff, the plaintiff herself and her sisters on one part

who were referred to as "owners of the property" and the defendant as

the other part. The defendant has been referred as "the developer".

The parties proceeded to agree on the premise that each owner had

interest in the said property and intended to develop the same. The

developer was the brother of the plaintiff and he agreed to pay a sum

of Rs. 12,50,000-00 along with sanctioned developed plot of 10,000 sq.

ft., each to the owners as consideration for being assigned the right to

develop the property. This consideration was for the purposes of

granting development, promotion, construction rights along with right

of sale of the property in favour of the defendant. The right to sell the

developed/constructed part of the property was only after payment of

consideration to the owners. Similarly, occupancy of the premises

constructed was permitted only after payment of full consideration by

the developer to the owners. For said purpose, an irrevocable General

Power of Attorney was executed by the owners in favour of the

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developer. It was made clear that only after payment of consideration

to the owners, the developer would be at liberty to execute sale-deeds,

transfer-deeds in favour of the purchasers. This agreement entered

into between the parties is not in dispute.

11. The plaintiff deposed in terms of the plaint averments. In

her cross-examination, she admitted her signature on a receipt at Exh.

72. In the deposition of the defendant at Exh.81, reference was made

to the Sanctioned Plan of the Nagpur Improvement Trust at Exh.54.

According to the defendant, as per said plan, Plot No. R-5 was allotted

to the plaintiff. He also referred to the reply filed by him at Exh.83 in

the Appeal from Order No. 41 of 2008 before this Court. He relied upon

the document at Exh.75 to indicate his possession and according to

him, as he had paid the consideration amount to the plaintiff, there

was no question of revoking the Power of Attorney. He denied that the

consideration agreed was Rs.12,50,000-00 and a plot admeasuring

10,000 sq.ft.

12. As per the reply filed on behalf of the defendant in Appeal

from Order No. 41 of 2008 on affidavit dated 21st August, 2008, it was

stated by the defendant that Plot No. R-5 was allotted to the plaintiff.

However, its possession was not transferred to the plaintiff nor was

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any sale-deed executed. As far as this statement as to allotment of

Plot No. R-5 admeasuring 10857 sq. ft. to the plaintiff is concerned,

same can be found in paragraphs 4 and 6 of the said reply. Similarly,

the receipt executed by the plaintiff at Exh.73 indicates reference to

Plot No. R-5 being allotted to her.

13. From the aforesaid evidence, it is clear that the defendant

had come up with a specific case that Plot No. R-5 was allotted to the

plaintiff, but its possession was not handed over to her. In that regard,

therefore, the contention as urged on behalf of the defendant that said

plot was never allotted to the plaintiff cannot be accepted being

against the evidence on record. I find that both the Courts were,

therefore, justified in coming to the conclusion that Plot No. R-5 was

allotted to the plaintiff as part of consideration as per the agreement at

Exh.53 dated 1st February, 1999.

14. According to defendant, the power of attorney granted by

the plaintiff in his favour was irrevocable. In this regard, it is to be

noted that the power of attorney authorises the defendant to take

various steps to facilitate release of the property in the ceiling

proceedings and thereafter to take steps for implementing the

proposed housing scheme. The document of power of attorney does

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not indicate creation of any interest in favour of the defendant in the

property in question. There is no clause to that effect in the said

document. It is only if any interest is created in the subject matter in

favour of the agent that such agency would become irrevocable as per

Section 202 of the Contract Act, 1872.

In this regard, the following observations in Johan Kotaiah

vs. A. Divakar and ors. AIR 1985 Andhra Pradesh 30 clarify the

aforesaid distinction :

" 17. Thus, it will be seen that if the interest created in the agent is in the result or the proceeds arising after the exercise of the power then the agency is revocable and cannot be said to be an irrevocable agency. However, if the interest in the subject matter say a debt payable to the principal, is assigned to the agent as security simultaneously with the creation of the power and thereafter the agency exercises the power to collect the debt for discharge of an obligation owed by the principal in favour of the agency or owed by the principal in favour of a third party, then agency becomes irrevocable."

18. This is also not a case where the principal has assigned any interest simultaneously with the execution of the power of attorney. But, it only created an interest in the resultant product or produce arising out of the exercise of the power. Paragraph 10 of the Power of attorney extracted above permits the agent to recover all his dues and

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remuneration of 5% of the total value of the total properties developed or otherwise and all the amount lying in various banks are to be fully recovered and duly paid to the attorney. Thus, the interest created in favour of the agent for payment of either his dues or his remuneration is in the product arising out of the exercise of the power and therefore it is clear prima facie that Exhibit-A1 does not crete an irrevocable power of attorney."

Hence, in the light of aforesaid observations with which I am

in agreement, it cannot be said that the power of attorney at Exhibit-

66 granted to the defendant was irrevocable in nature. The ratio of

decision relied upon by the learned counsel for the appellant in Seth

Loon Karam Sethiya (supra) cannot be made applicable to the facts

of the present case.

15. Considering the case of the parties and the evidence on

record, I do not find that it was the defendant who was in exclusive

possession of the suit property. As observed by the first appellate

Court there is nothing on record to show exclusive possession of the

defendant. His possession was in the capacity of being the holder of

power of attorney of the plaintiff. The letter at Exhibit-72 issued by the