Jakir Hossain & Ors vs Md. Aziz Sk. Alias Abdul Aziz & Ors
2022 Latest Caselaw 1029 Cal

07.03.2022
  SL No.24
 Court No.8
    (gc)


                                SA 87 of 2021
                                    With
                                CAN 1 of 2021

                           Jakir Hossain & Ors.
                                     Vs.
                    Md. Aziz Sk. Alias Abdul Aziz & Ors.

                             (Via Video Conference)

                                     Mr. Sekhar Pal,
                                     Mr. Mobakshar Islam,
                                                    ...for the Appellants.
                                     Mr. R. Islam,
                                     Ms. Manika Sarkar,
                                                   ...for the Respondents.

We have heard the learned Counsel for the parties.

The second appeal has come up for admission. As it

reveals from the materials on record and the judgment of

both the Courts, P.W-1 could not complete his evidence

due to ill health and he claimed to have allowed his son to

depose on his behalf. Although, no power of attorney was

disclosed in the said proceeding to that effect. The Court,

however, allowed the son of P.W-1 to depose as P.W-2. It

is elementary that a power of attorney holder may depose

for the principle for those acts done by him pursuant to

the power delegated to him under the power of attorney

and he cannot depose for the principal for act done by the

principal. The instant case revolves around the legality

and validity of an oral sale that alleged to have taken place

in 1945. The P.W-2 was born only in the year 1971. He

had candidly admitted that he had no knowledge about

such oral sale. Moreover, subsequent to the first transfer

there are other transfers in between. As the record

reveals, the documents on the basis of which the original

plaintiff, Jamiruddin Sk. is claiming title to the suit

property by virtue of sale deed executed by Biram Sk. in

favour of Jaffar Ali and thereafter the said Jaffar Ali

executed a registered Heba-bil-ewaj in favour of Sk.

Asiruddin and the oringinal plaintiff and later Sk.

Asiruddin has transferred his share in the suit property in

favour of the original plaintiff, Jamiruddin Sk. by

executing a Deed of Exchange being Deed No.5058 dated

18th May, 1967 and these facts are being special

knowledge of the original plaintiff as those acts were

purported to have been done by him alone.

In view of such admitted facts, we are of the view that

the Trial Court as well as the Appellate Court on proper

appreciation of evidence gave findings against the

appellants.

In view of the fact that no substantial question of law

is involved in this second appeal, the second appeal being

SA 87 of 2021 is not admitted and hence dismissed.

In view of the dismissal of the second appeal, the

application being CAN 1 of 2021 is also dismissed.

However, there shall be no order as to costs.

All parties shall act on the server copies of this order

duly downloaded from the official website of this Court.

(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)