Uday Kumar Patra @Uday Patra vs Subrata Patra & Anr
2022 Latest Caselaw 8303 Cal

Form No. J (1)

                     IN THE HIGH COURT AT CALCUTTA
                      (CIVIL APPELLATE JURISDICTION)


Present:

The Hon'ble Justice Biswajit Basu.
                                    S.A. 87 of 2011

                         UDAY KUMAR PATRA @UDAY PATRA
                                      VS.
                             SUBRATA PATRA & ANR.


For the appellant:                           Mr. Debasish Roy,
                                             Mr. Sukanta Das.

For the respondents:                         Mr. Basudeb Gayen,
                                             Mr. Aniruddha Chatterjee,
                                             Mr. Debabrata Roy,
                                             Mr. Sukumar Ghosh,
                                             Ms. Moumita Ghosh.

Heard on             : 19.09.2022, 21.09.2022, 09.11.2022 and 10.11.2022

Judgment on          : 14.12.2022



Biswajit Basu, J.

1. The instant second appeal is at the instance of the plaintiff in a suit for

partition and declaration of title and is directed against the appellate decree dated

August 31, 2010 passed by the learned Additional District Judge, Fast Track-3rd

Court, Paschim Medinipur in Title Appeal No. 30 of 2009 thereby reversing the

judgment and decree dated March 17, 2009 and March 26, 2009 respectively

passed by the 1st Court of Learned Civil Judge(Junior Division), Paschim

Medinipur in Title Suit No. 128 of 2003.

2. The summary the plaint case of the connected suit is that the defendant no.

2 is the elder brother of the plaintiff and by a registered deed of conveyance dated

April 02, 1986, they jointly purchased 2 decimals of land in suit plot no. 170

under Mouza- Lutunia, District - Paschim Medinipur, (the 'suit property' in short)

from one Basudev Patra, who filed a suit against both the brothers. The plaintiff

on February 03, 1989, executed a registered power of attorney (POA in short)

thereby authorised his said elder brother to represent him in the said suit during

his absence from the village. The plaintiff, noticing some adverse action of his

elder brother, revoked the said POA on June 27, 1990 by a registered deed of

cancellation. The plaintiff on May 15, 2003 found that the defendants are carrying

on construction over the suit property. The defendant no. 2, on enquiry disclosed

that being authorised by the said POA, he, on behalf of the plaintiff, by a

registered deed of conveyance dated June 23, 1990 has sold the plaintiff's share in

the suit property(hereinafter referred to as the 'said share') to his mother-in-law

Chhabi Rani Makar, she in turn sold it to one Gorachand Samanta on September

10, 1997 who, on January 21, 1998 sold it to the defendant no. 1, the minor son

of the defendant no. 2. Under such circumstances, the plaintiff on May 30, 2003

requested his elder brother to execute appropriate deed of release in his favour in

respect of the said share but he refused, hence the suit.

It is the specific case of the plaintiff that he executed the said POA only to

take all necessary steps to defend his title in the suit filed by the said Basudev

Patra, but he never authorised his elder brother to sell the said share.

3. The defendants filed a joint written statement to contest the suit. The case of

the defendants in the said written statement is that the plaintiff by the said POA

not only authorised the defendant no. 2 to defend the title of the plaintiff in the

suit filed by the said Basudev Patra but also authorised the defendant no. 2 to sell

the said share by executing and registering necessary deed of conveyance to meet

the expenses of the said suit.

4. The learned Trial Judge scrutinised the clauses of the said POA(Exhibit-9) to

ascertain whether the plaintiff, by the said POA empowered the defendant no. 2 to

sell the said share and concluded that nowhere in the said exhibit, the plaintiff

entrusted the defendant no. 2 for the specific purpose to sell the said share,

consequently cancelled the deed of conveyance in favour of said Chabi Rani

Makar(Exhibit-6) and also declared all subsequent deeds i.e. deed in favour of said

Gorachand Samanta (Exhibit- 8) and deed in favour of the defendant no.

1(Exhibit-3) null and void. The learned Trial Judge decreed the suit in preliminary

form declaring half share of the plaintiff in the suit property.

5. The defendants being aggrieved by and dissatisfied with the aforesaid

judgment and decree of the learned Trial Judge preferred the appeal. The appeal

Court below by the impugned judgment and decree has reversed the judgment and

decree of the learned Trial Judge and dismissed the suit. The Appeal Court found

that the plaintiff in his cross-examination admitted that he obtained the certified

copy of the deed of conveyance in favour of the said Chabi Rani Makar before

sending the advocate's notice dated November 16, 1994(Exhibit- 2), as such the

plaintiff must have had the knowledge of the said transfer at least since 1994 and

not from May 15, 2003 as alleged and held that the suit since was filed after the

expiry of the period of limitation, is barred. The Appeal Court further held that a

suit for declaration of title without seeking the relief of recovery of possession is

not maintainable under the law.

6. The instant second appeal was admitted by the Hon'ble Division Bench on

April 06, 2011 to answer the following substantial questions of law:

I. "Whether the learned judge in the lower appellate court, substantially,

erred in law in reversing the decree passed by the learned trial judge

proceeding on the basis that the suit was instituted immediately after

knowledge of making construction by the defendants?"

II. "Whether the learned judge in the lower appellate court, substantially,

erred in law in holding that the suit was barred under Section 34 of the

Specific Relief Act, 1963, when the suit was instituted against the

power of attorney holder on the allegation that he had exceeded his

right in transferring the property in favour of a third party?"

7. Mr. Debasis Roy learned counsel for the appellant submits that a cursory

look to the clauses of the said POA would show that the plaintiff by the said

document, had empowered his said elder brother to take all necessary steps to

defend him in the suit filed by said Basudev Patra, but he never authorised the

defendant no. 2 to sell the said share. He further submits that the evil intention of

the defendant no. 2 to grab the property of his brother would be apparent from the

design of the impugned transactions as the defendant no. 2 ultimately was

successful in getting the property of his brother transferred in favour of his son.

8. Mr. Roy further submits that the Appeal Court below has misconstrued the

scope of the suit and has totally overlooked that it is not a suit for declaration

simplicitor but a suit for partition upon declaration of title, in such a suit, the

plaintiff is not always obliged to seek cancellation of the unauthorised alienations

and in support of his such contention, he places reliance on the decision of the

Hon'ble Supreme Court in the case of UMADEVI NAMBIAR vs. THAMARASSERI

ROMAN CATHOLIC DIOCESE reported in (2022) 7 Supreme Court Cases 90. He

adds that such being the scope of the suit, the Appeal Court below has committed

substantial error of law in holding that the suit is barred by limitation. In

conclusion, he submits that the Appeal Court below has committed further error

of law in holding that the failure of the plaintiff to seek the relief of recovery of

possession affects the maintainability of the suit inasmuch as in view of the

nature of the suit, the plaintiff is not required to seek the said relief.

9. Mr. Aniruddha Chatterjee, learned advocate for the respondents on the

other hand puts much emphasis on the following quoted recital of the said POA to

contend that the defendant no. 2 by the said document was authorised to execute

and register any sale deed on behalf of the plaintiff, and the defendant no. 2

having such authority had sold the said share:-

".............. এবং মাক মার চলাকালীন আেগ ও পের য কান দিলল আমার নাম বঃকলেম স াদন করত য কান রিজ ী এবং সাবেরিজ ী অিফেস দিলল রিজ ী করা............

(......and to sign any deed in my name on my behalf before or after or during pendency of the case and get the deed registered in any registration or sub-registration office.....)"

10. Mr. Chatterjee places reliance on the decision of the Hon'ble Supreme Court

in the case of SANTOSH HAZARI vs. PURUSHOTTAM TIWARI (DECEASED) BY

LRS. reported in (2001) 3 Supreme Court Cases 171 to contend that the

questions of law formulated in the present second appeal not being substantial

ones, the High Court cannot interfere with the findings of the first appellate Court

to correct the errors of law or the errors of fact. With regard to the scope of Section

100 of the Code of Civil Procedure, he refers to the Full Bench decision of this

Court in the case of RATANLAL BANSILAL AND OTHERS vs. KISHORILAL

GOENKA AND OTHERS reported in AIR 1993 Calcutta 144.

Heard learned counsel for the parties perused the materials-on-record.

11. A close look to the relevant recitals/clauses of the POA is necessary to

answer the formulated substantial questions of law, as such, they are reproduced

below:-

"আিম উদয় পা অন বসবাস করায় এবং আমার পে উ মাক মা পিরচালনা করার অসুিবধা হওয়ায় ও মাক মা খরচা বহন করার মতা আমার না থাকায় আমার জ াতা মাক মার সমূহ খরচা বহন কিরেবন আমােক বিলেলন এবং মাক মা পিরচালনা করার যাহা িকছু করণীয় কায কিরবার জন অথাৎ উিকল মা ার িনযু আিদ করা এবং মাক মা উ আদালেত ানা িরত করা এবং সা ী দান আিদ উপি ত করা ও সা ী মাণ আিদ উপি ত করা ও মাক মার িন ি র কের আিপল করা আিজ ও দখল আিদ যাহা করা যাহা করণীয় তাহা করা এবং মাক মার চলাকালীন আেগ ও পের য কান দিলল আমার নাম বঃকলেম স াদন করতঃ য কান রিজ ী এবং সাবেরিজ ী অিফেস দিলল রিজ ী করা এবং দিলেলর কিপ দৃে দওয়া ও ৫২ ধারা মেত া রিসদ কাহােরা নােম বরাত িদয়া দিলেলর ডিলভারী লওয়ার জন আমার জ াতা উ ম মার পা িপতা জলধর পা জািত - িহ ু পশা- চাষািদ, সাং - ল া, থানা ও সাব রঃ - সবং, জলা- মিদনীপুর ক আমেমা ার িনযু কিরয়া এত ারা মতা িদেতিছ য উ আমেমা ার উপেরা য সম কায কিরেবন তাহা আমায় ীয় কৃত কােয র ন ায় কবুল ও ম র ু হইেব। অ আমেমা ার আমার হইয়া স িবধ কায কিরেত পািরেবন এবং তাহাও ীয় কৃত কােয র ন ায় ফলত হইেব।

(............. I Uday Patra live elsewhere and as it is inconvenient for me to pursue the said case and as I do not have the capacity to bear expenses of contesting the case and as my elder brother has told me that he will bear the entire expenses for the case I do hereby appoint my elder

brother Sri Uttam Kumar Patra son of Sri Jaladhar Patra, by faith-Hindu, occupation- cultivation, residing at Lakshya, P.S. and Sub-registration office Subang District Medinipur as my Constituted Attorney and empower him to perform whatever is necessary to conduct the case i.e.to appoint advocates and solicitors etc. and to transfer the cae to High Court and to produce and adduce witnesses and evidence etc. and to prefer appeal after disposal of the case ad to file plaint and application and to do all other things that are required and to sign any deed in my name on my behalf before or during pendency of the case and get teh deed registered in any registration or sub-registration office and to assign the receipt given after seeing the copy of the deed and issued under Section 52 to anybody else and thus to take delivery of the deed. All the aforesaid acts and deeds done and performed by my said constituted attorney will be treated considered and accepted as done by me. This constituted attorney will be entitled to do all types of work on my behalf and those will be treated as the work done by me. To this import with sound state of mind in simple mind is presence of witness I execute this Power of Attorney. Finish. Date 20thMagh of the year 1395 Bengali Calendar corresponding to 3rd February of the year 1989AD)"

12. The above quoted recitals/clauses of the POA unmistakably suggest that the

plaintiff executed the said POA to authorise the defendant no. 2 to take all steps to

represent him in the suit filed by the said Basudev Patra against both the

brothers, there is no recital/clause in the said POA specifically authorising the

defendant no. 2 to sell the said share. It is well settled that a POA has to be strictly

construed. In order to agree to sale or effect a sale by a POA, the power should also

expressly authorised the power to agent to execute the sale agreement/sale deed.

(See CHURCH OF CHRIST CHARITABLE TRUST AND EDUCATIONAL

CHARITABLE SOCIETY, REPRESENTED BY THE CHAIRMAN vs. PONNIAMMAN

EDUCATIONAL TRUST REPRESENTED BY ITS CHAIRPERSON/MANAGING

TRUSTEE reported in (2012) 8 Supreme Court Cases 706). The authority to

execute and register deed before, after or during the pendency of the said suit

must be interpreted in agreement with the main purpose for which such authority

was given, in other words, the said recital/clause as suggested by Mr. Chatterjee

cannot be read in isolation from the other recitals/clauses of the said document to

confer a specific authority upon the defendant no. 2 to execute and register a deed

of conveyance in respect of the said share, besides, the POA is completely silent

about the authority of the defendant no. 2 either to receive consideration price for

the sale of the said share or to deliver possession of the said share to the

purchaser on behalf of the plaintiff, absence of these authorities clearly indicate

that the defendant no.2 was not authorised to execute the deed of conveyance in

respect of the said share, as such, the said defendant no. 2, in excess of his

authority sold the said share. Furthermore, the recital/clause of the POA quoted

below records that the defendant no. 2 assured the plaintiff that he would meet

the expenses of the suit filed by said Basudev Patra which falsifies the defence of

the defendants that by the said POA, the plaintiff authorised the defendant no. 2

to sell the said share to meet the expenses of the said suit:

"......ও মাক মা খরচা বহন করার মতা আমার না থাকায় আমার জ াতা মাক মার সমূহ খরচা বহন কিরেবন আমােক বিলেলন............"

"..........as I do not have the capacity to bear expenses of contesting the case and as my elder brother has told me that he will bear the entire expenses for the case........."

13. The appeal Court below has overlooked that the plaintiff is seeking the relief

of partition of the said share, in such a suit plaintiff is not always obliged to seek

cancellation of the alienations, particularly when such alienations are

unauthorised. In this context, it is apposite to quote paragraph 15 of the decision

of the Hon'ble Supreme Court in the case of UMADEVI NAMBIAR (supra):-

"15. It is not always necessary for a plaintiff is suit for partition to seek the cancellation of the alienations.

There are several reasons behind this principle. One is that the alienees as well as the co-sharer are still entitled to sustain the alienation to the extent of the share of the co-sharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, High Court was wrong in putting against the appellant, her failure to challenge the alienations."

14. The plaintiff since is not required to challenge the unauthorised alienations

to get the relief of partition, the plaintiff's knowledge of the said alienations has no

relevance in deciding the maintainability of the connected suit. A co-sharer not in

possession of the joint property can maintain a suit for partition without

specifically seeking the relief of recovery of possession; such a suit does not come

within the mischief of the proviso appended to Section 34 of the Specific Relief Act,

1963. The appeal Court below, therefore, has committed substantial error of law in

dismissing the connected suit on the ground of limitation and on the failure of the

plaintiff to seek the relief of recovery of possession. The error committed by the

appeal Court below in reversing the judgment and decree of the learned Trial

Judge is substantial one inasmuch as the appeal Court below has failed to

appreciate the scope of the connected suit and has erroneously interpreted the

recitals/clauses of POA, therefore, neither of the decisions cited by Mr. Chatterjee

are applicable in the facts and circumstances of the present case.

Summing up the discussion made above, this Court answers both the

substantial questions of law in affirmative, in consequence the impugned

judgment and decree of the appeal Court below are set aside and the judgment

and decree of the learned Trial Judge stand restored.

The parties are at liberty to apply for appointment of Partition

Commissioner, if such an application is made, the learned Trial Judge is

requested to dispose of the same expeditiously, in accordance with law.

S.A. 87 of 2011 is thus allowed without any order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be supplied

to the parties upon compliance with all requisite formalities.

(BISWAJIT BASU, J.)

LATER

Let the connected Lower Courts Records be sent down to the learned Courts

below by special messenger at the cost of the appellant, such costs be put in

within a week from date.

(BISWAJIT BASU, J.)